On July 13, the House Financial Services Committee held a hearing entitled “Protecting Investor Interests: Examining Environmental and Social Policy in Financial Regulation.” Witnesses in the hearing were:
- James Copland, Senior Fellow, Manhattan Institute
- Benjam Zycher, Senior Fellow, American Enterprise Institute
- Lawrence Cunningham, Special Counsel, Mayer Brown
- Ted Allen, Vice President, Society for Corporate Governance
- Keith Ellison, Attorney General, State of Minnesota
Below is a summary of the hearing prepared by Delta Strategy Group. It includes several high-level takeaways, followed by summaries of opening statements and witness testimonies and a summary of the Q&A portion of the hearing.
Key Takeaways
The following is a summary of the main topics explored in today’s hearing. Each is discussed in further detail in the Discussion section below.
- Committee Chairman Patrick McHenry (R-NC)
- The SEC has turned their attention to non-material, environment, social, and political issues rather than focusing on sound financial regulation. These politically motivated regulations discourage private companies from going public as well as hinder the competitiveness of American public companies.
- Ranking Member Maxine Waters (D-CA)
- The disclosure of climate practices through ESG adoption is necessary for investors to make informed investment decisions. It is the federal government’s duty to hold public companies accountable for ESG.
- Vice Chair French Hill (R-AR)
- Mandating ESG disclosures from public and private companies is drifting far from the statutory mission of the SEC. If ESG factors are material to investment decisions, they will be disclosed under current law. Requiring companies to disclose non-material information just because it is related to ESG is unnecessary.
SUMMARY
Opening Statements and Testimony
Committee Chairman Patrick McHenry (R-NC)
Unfortunately, we have seen a disturbing trend in the Biden administration’s approach to regulating our capital markets, particularly at the SEC. Rather than focusing on sound regulation, the SEC has turned its attention to non-material ESG issues in a way that have increased costs and burdens for those participating in public markets. These regulations discourage companies from going public and hinder the competitiveness of American public companies.
Committee Ranking Member Maxine Waters (D-CA)
It is the federal government’s responsibility to hold public companies accountable for ESG standards. Republicans have done little to address racial and gender inequality and continue to engage in culture wars instead of responsibly addressing diversity and inclusion. It is important to recognize that 80 percent of investors are in favor of ESG information disclosure because it empowers them to do what they want with their money. With climate change in mind, investors support climate-related disclosures because it benefits society as a whole.
James Copland, Senior Fellow, Manhattan Institute
To an extent, most Americans do not realize a very small number of actors exert enormous influence over almost all of our largest businesses. These actors, such as BlackRock, Vangaurd, and State Street, are neither democratically elected nor investing geniuses. We should not be letting them dictate the pathway for all American businesses. The SEC and other regulators have gone well beyond their statutory mission to promote ESG causes. They have slowly circumvented legislature to push and mandate social and environmental policies, with no regard to private corporate interests.
Benjam Zycher, Senior Fellow, American Enterprise Institute
ESG objectives have come to influence proxy advice heavily. The resulting economic effects born by shareholders and participants have been substantially negative as ESG management imposes artificial constraints on investment returns. Political business management capital allocation would yield a decline in investment returns as well as overall GDP. Greenhouse gas emissions (GHG) from a given firm, however broadly defined, cannot possibly have measurable climate effects. Congress should reform the SEC regulatory framework to prevent regulatory agencies from pursuing climate policies not authorized by the law.
Lawrence Cunningham, Special Counsel, Mayer Brown
Congressional action is needed to strengthen the protection of investors. This proxy season more than half of all proposals were made by five parties, so it is false to conclude that the production of shareholder proposals has widespread support. Recent SEC shareholder proposals would force companies to align with special interest groups rather than prioritizing the economic rationale for the particular needs of the company and Its shareholders.
Ted Allen, Vice President, Society for Corporate Governance
The SEC’s initial shareholder proposal rule was intended to enable shareholders to present proposals on matters relating to the affairs of the company, but not on broad political and social matters. Unfortunately, the SEC has strayed from this original intent and has forced companies to include resolutions that relate to significant social policy issues. There has been a surge of shareholder proposals primarily due to activist pushing environmental and social agendas. Many of these proposals are not linked to long-term shareholder value and have become an increasing burden on investors and companies. Companies should not be forced to take sides on controversial social issues or preside over political debates at their shareholder meetings. The current economic threshold of $2,000 for filing proposals for investors is not sufficient given the substantially cost of filing those proposals.
Keith Ellison, Attorney General, State of Minnesota
ESG best practices and high market returns go hand-in-hand. It is the duty of fiduciaries in ever sector to consider risk and opportunities that could impact their business. 96 percent of the largest 250 global companies now issue a sustainability report because it is beneficial to investors, pensioners, and profits. ESG is nothing more than supplemental data that provides clarity when viewing risk and opportunities that facilitates sound investment decisions based on that data. ESG opponents are interfering with the free market, and legislation that inhibits the freedom to invest is harmful to the financial security of retirees.
Discussion
Discussion Topics
McHenry (R-NC): How does the principle of materiality in disclosures benefit the average investor? Is there a reason to deviate from the materiality principle in light of environmental concerns? Cunningham: Investors will only be given information that is useful to them in making their investment decision. We don’t want to overwhelm investors with an abundance of information they cannot make sense of and has no practical use. There is no reason to deviate from that principle.
Waters (D-CA): Should the fiduciary be permitted to offer a shareholder proposal on behalf of their beneficiaries? Ellison: Yes, risk adjusted factors are important to advance the best interest of the beneficiaries. It is important to have the most information as possible.
Hill (R-AR): What are the potential consequences if the SEC were to require companies to disclose non-material climate information? What are your concerns about the European set of mandates that are going to be imposed on US companies? Allen: There would be a significant cost imposed on both large and small companies due to their one-size-fits-all approach. This will trickle into private companies; Copland: Europe is working on climate disclosure regulation that applies not only to subsidiaries of American companies, but also to their parent companies as well, which is concerning.
Sherman (D-CA): Is climate disclosure the only way for investors to make intelligent decisions? Ellison: Yes, the more information, the better.
Sessions (R-TX): How should we prevent the SEC from abusing their regulatory power? Copland: There is no doubt that is a rampant issue. They have been circumventing the rule making process, and we need to monitor that.
Scott (D-GA): Under the SEC’s proposal for emission disclosures, could a publicly traded company choose to seek data from small farms if it wanted to? Could Scope 3 emission requirements have an unintended consequence on the amount of investment activity by banks? Zycher: A firm can seek out information from whoever it chooses, but whether they provide that information is up to them. The Fed’s draft principles do not break out Scope 1,2, and 3 in its risk analysis. The estimation of those risks depend on many unique factors in combination.
Luetkemeyer (R-MO): How do regulatory decisions imposed on the public sector impact the economy? Zycher: Regulatory efforts aimed fossil fuel industry would distort capital allocation by distorting investment decisions.
Lynch (D-MA): Do you agree that ESG has the potential to benefit informed decision making? Ellison: We think of ESG as more of a consideration. It is not a mandate, so I think it would only be of benefit to consider the impact on workers and communities.
Huizenga (R-MI): How do ESG objectives conflict with efficiency of markets and investor protection? Are they a deterrent for companies to go public? What are some implications if the SEC were to require companies to disclose non-material climate information? Copland: Direct costs for the large companies are relatively small, but the indirect costs, like time, are huge and serve as a deterrent for companies to go public; Allen: Climate disclosures will have a negative impact on investors as they already receive plenty of material information and this will only drive up prices. The SEC has also not provided sufficient analysis about the impact of the rule.
Cleaver (D-MI): Can companies comply with ESG principles while profiting and making progress? Ellison: Social and governance factors have been proven to be consistent with a more profitable firm.
Wagner (R-MO): What are the long-term implications if we force companies to adopt ESG principles? How can we protect retail investors? Copland: Investors will get weaker returns; Cunningham: We need to eliminate the special interest groups from taking a role in rulemaking and shareholders.
Casten (D-IL): Do you agree that anti-ESG efforts restrict what pension funds can invest in? Copland: I agree that we should not take away the ability to invest in ESG funds. Investors should be able to invest in what they choose.
Barr (R-KY): If ESG is capitalism, why do we need the government to interfere in the free market? Zycher: The right thing to question is whether agencies should be creating conditions in which companies are forced to use proxy advisors and forced to adopt the recognitions of the proxy advisors who have no responsibilities, in a fiduciary sense, to the shareholders.
Horsford (D-NV): Have you seen that the government’s focus is truly on costly non-material issues at the expense of the public markets? Ellison: No, the push to adopt these ESG principles is coming from pension beneficiaries and community members who want governance to think about social factors.
Vargas (D-CA): Do you think that human actions through the use of fossil fuels have contributed to climate change? Zycher: There is no evidence of a crisis, but yes humans have contributed; Ellison: Yes, and it is causing a crisis related to agriculture.
Williams (R-TX): If the SEC continues to operate out of their mandate, and this climate disclosure rule passes, what will the implications be for the public market? Copland: Many small businesses who will have to hire economist and attorneys to abide by these mandates will take financial hits.
Fitzgerald (R-WI): What are your thoughts on voluntary emission disclosures as opposed to this SEC rule? Copland: This proposal is very heavy handed. It effectively says that companies need to buy into ESG, or they will lose access to capital. This will impact local property taxes as well as local services.
Meuser (R-PA): Do you have concerns with EU directives being placed on American businesses? Copland: We do not want international regulatory oversight of our markets. This could also become a source of international conflict.
Donalds (R-FL): What would you recommend Congress do to remedy the current conflict between ESG principles and profitability? Allen: It would be helpful to remove some social issue proposals from corporate proxy ballots that require companies to have to put these out to a vote to their shareholders.
Kim (R-CA): How could a slowdown in IPO activity and costly non-material shareholder proposals impact the returns and retirement savings? Copland: It would unambiguously hurt it, particularly because a lot of these defined contribution plans are going to have access to private capital sources. Not having as many companies in the public markets is a problem.