CEOs & Business Leaders Speak Out on Voter Rights – Corporate Citizenship, USA-style On Display

April 14 2021

By Hank Boerner – Chair & Chief Strategist – G&A Institute 

Corporate America and “Corporate Citizenship” – Today, that can mean lending the CEO and company voice to address critical societal issues in the United States of America.  Some applaud the move, while others attack the company and its leader for their position on the issues in question.   

In this context, powerful messages were delivered today from the influential leaders of the US corporate community – clearly voicing concern about the American electoral process and the rights of all qualified voters in the midst of mounting challenges to the right-to-vote. 

What the CEOs, joined by other influentials in the American society, had to say to us today:

As Americans we know that in our democracy we should not expect to agree on everything.

However – regardless of our political affiliations, we believe the very foundation of our electoral process rests upon the ability of each of us to cast our ballots for the candidates of our choice.

We should all feel a responsibility to defend the right to vote and oppose any discriminatory legislation or measure that restrict or prevent any eligible voter from having an equal and fair opportunity to cast a ballot.

Who is saying this? A list of bold name signatories in an advertisement that appears today in The New York Times and The Washington Post – these messages (these above and more) splashed across two full pages (a “double truck” in newspaper language) with a dramatic roster of prominent names from Corporate America. And prominent accounting and law firms with bold name corporate clients. And not-for-profits. And individuals. Celebrities.  People and organizations that every day in some way touch our lives. 

This advertisement certainly continues to set the foundation in place for pushback by powerful people and organizations as various state legislatures take up electoral voting measures. And pushes back against the “Big Lie” that the November 2020 elections at federal, state and local levels were widely fraudulent.

The names on the two pages jump out to capture our attention: Apple. American Express. Amazon. Dell Technologies. Microsoft. Deloitte and EY and PwC. Estee Lauder. Wells Fargo. BlackRock. American Airlines and JetBlue and United Airlines. Steelcase. Ford Motor and General Motors. Goldman Sachs. MasterCard. Vanguard. Merck. Starbucks. IBM. Johnson & Johnson. PayPal. T. Rowe Price. And many more.

CEOs including Michael R. Bloomberg (naturally!). Warren Buffett. Bob Diamond, Barclay’s. Jane Fraser, Citi. Brian Doubles, Synchrony. Brian Cornwell, Target. Roger Crandall, Mass Mutual.

Luminaries joined in as individual in support of the effort: David Geffen. George Clooney. Naomi Campbell. Larry David. Shonda Rhimes. Larry Fink. Demi Lovato. Lin-Manuel Miranda. Many more; think about the influence of their influencers in our American society in 2021.

And we see the names of these law firms: Akin Gump. Arnold Porter. Milbank. Morgan Lewis & Bockius. Fried Frank. Cleary Gottlieb. Holland and Knight. Ropes & Gray. (If you are not sure of who these firms and many more law firm signatories are, be assured that in the board room and C-suite and corporate legal offices these are very familiar names).

And the “social sector” institutions/organizations signing on include leaders of the Wharton School, Morehouse College, Spelman College, University of Pennsylvania, Penn State, NYU Stern, United Negro College Fund, Hebrew SeniorLife, and Council for Inclusive Capitalism.

The New York Times covered the story of the advertising message in an article in the Business Section – Companies Join Forces to Oppose Voting Curbs (bylined by Andrew Ross Sorkin and David Gelles). Subhead: A statement that defies the GOPs call to stay out of politics.

The effort was organized by prominent Black business leaders including Ken Chennault, until recently the highly-regarded CEO of American Express, and Ken Frazier, the also-widely-admired CEO of Merck.

Recall that Senate Minority Leader Mitch McConnell corporations said that corporations should “stay out of politics”. The recent State of Georgia legislation addressing voting rights was a trigger for prominent corporate leaders (such as heads of Coca Cola, Delta Airlines, both headquartered in Atlanta) to criticize measures that could deter or inhibit minority voter populations from exercising their rights.  Leader McConnell reacted to this. 

The Times quoted Kenneth Chennault: “It should be clear that there is overwhelming support in Corporate America for the principle of voting rights…these are not political issues…these are the issues that we were taught in civics…”

Also made clear: The CEOs, social influential and thought leaders including celebrities involved in the ad message effort were non partisan and not attacking individual states’ legislative efforts.

Remember The Business Roundtable’s recent re-alignment of the groups mission statement to focus on “purpose”? According to the Times report, the subject of the ad effort was raised on an internal call and CEOs were encouraged to sign on to the statement; many CEOs did.

Where does this go from here? Corporate executives are speaking out separately on the legislative measures being discussed in individual states that appear to or outright are clear about restricting rights of minority populations. That happened in Georgia recently. Coca Cola and Delta Airlines were hit with criticism; those companies were not signatories on the ad today. Home Depot (also HQd in Atlanta) waffled; the company is not represented on the signatory line nor was there public criticism of the legislature’s effort.

Perspective: While corporate citizenship has been an area of focus and public reporting for many years at a number of large cap public companies, the glare of publicity centered on the question of “what are you doing to help advance society on critical issues as a corporate citizen” is more recent.

The spotlight is intensifying on voting rights (as we see today) and also on climate change, diversity & inclusion, human capital management (especially in the Covid crisis), investment in local communities, in supporting public education, in hiring training & promotion of women and minorities, doing business with nations with despot leaders (think of Burma/Myanmar), equality of opportunity for all populations…and many other issues.

And so today’s advertising splash with CEOs especially putting their stake and their company’s stake in the ground on these types of issues is something we can expect to see continue and even expand in the coming weeks.

The division lines in the USA are certainly clear, especially in politics and public sector governance, and we are seeing that corporate leaders are responding to their stakeholders’ expectations…of being “a good corporate citizen”.

And it’s interesting to see the perspectives shared that even the meaning and understanding of the responsibilities of the “corporate citizen”) is defined along some of the lines that divide the nation.

Interesting footnote:  Clearly illustrating the political and philosophical divide, the members of the Republican Party who are organized as the opposition to the GOP today — The Lincoln Project — called on followers to sign on to an email that singles out JetBlue (one of the ad signatories) for contributing to political campaigns of what the Lincoln Project calls “seditionists”.  These are elected officials who “support voter suppression”. Says the project: If enough of us make it clear that we won’t stand inequality, voter supression and sedition, we will make a difference.

The battle lines are clearly drawn in voting rights issues. 

The advertisement today:

April 14 2021 – The New York Times and The Washington Post messages:

 

 

 

 

The U.S. Department of Labor – Proposed Rule Addressing ESG Investment Selections by Fiduciaries – the Drama Continues As Agency Downplays Importance of ESG

By Hank Boerner – Chair & Chief Strategist – G&A Institute

August 9 2020

In the early 1970s, Congressional hearings featured allegations of abuses by managers of corporate pension funds taking actions to systemically deny men and women approaching retirement age their promised benefits.  A law was passed to protect plan beneficiariesThe Employee Retirement Income Security Act of 1974.

This was intended by the Congress of that day to create standards for private-sector plans to protect the financial and health of beneficiaries of corporate plans.

The U.S. Department of Labor was designated is the primary designated arm enforcing “ERISA”,  charged with “protecting the interests of employee benefit plans participants (workers) and their beneficiaries”.

Other agencies have plan oversight responsibilities as well – the U.S. Treasury Department (the IRS) and the Pension Benefit Guaranty Corporation (PBGC).

PBGC is like the FDIC protection for bank customers’ money; when a corporate pension plan fails, the PBGC assumes responsibility for providing retirement benefits to retirees. When a company with a retirement plan goes belly up, filing bankruptcy, or giving up responsibility for the plan, the PBGC takes over to help the plan’s beneficiaries (they don’t get all that was promised by the plan when it was managed by the company they worked for).

Among other elements of the ERISA law and operating rules, there are standards set for fiduciaries and managers of worker retirement plans and welfare benefit plans.

ERISA has been updated since passage 40+ years back and the DOL rules have changed over time.  So have related Internal Revenue Service rules.  In 1978 the Internal Revenue Code was amended to allow taxpayers to have a tax-deferred, defined, voluntary retirement plan of their own – the familiar 401 (k) plan that millions participate in.

In the latest summary from the DOL’s Employee Benefits Security Administration of DOL (“EBSA“) for FY 2013(!) — ERISA rules [then] applied to 684,000 retirement plans, 2.4 million health plans and 2.4 million additional welfare benefits.

These plans covered 140 million workers and beneficiaries – at the time, that was about half of the American workforce – and assets under management of the plans exceeded US$7 trillion.

To simplify what follows here, the rules adopted by federal regulators are intended to explain and enforce the statute passed by Congress – in this case, protection of worker rights and oversight of fiduciaries managing workers’ assets in plans.

There is a structured process for creating the enforcing agency rules-of-the-road for those organizations being overseen (for ERISA, fiduciaries, plan managers) and these rules could be changed from time-to-time and also be “interpreted” by regulators through communications intended to clarify the rules.

ESG Investment and the Department of Labor Perspectives

As “sustainable” or “ESG” investing became a preferred approach for individuals in plans and managers of plans, many more institutions and individuals preferred those investments, alongside or instead of more traditional investments.

Investors want to be able to invest in an ESG-themed mutual fund or ETF along with or instead of a traditional version that may track a benchmark of the same type.

Example:  There are many investment managers whose fund track the widely-used S&P 500 benchmark (from S&P Global) and investable products with an S&P 500 ESG benchmark.

State Street a few days ago launched an S&P 500 ESG Exchange Traded Fund (ETF) “to provide investors an opportunity to tap into ESG investing at the core of their portfolio” (with a very low expense ratio). This “EFIV” tracks the new S&P 500 ESG Index.

SSgA explains: “ESG investing is approaching a critical inflection point…the collective call for change is growing louder and investor increasingly taking a stand through their investment choices.”

How do the regulators of ERISA react to such progress?  To the call for change?  To respond to investors’ call for action?

By moving backward in rule-making with changes in rules to make it more difficult for plan managers and beneficiaries to invest in ESG vehicles.

To be sure, rules are subject to change. The DOL’s first guidance on ESG investment issues as issued back in 1994.

More recently, in 2008 (during the Administration of President George W. Bush) guidance appeared to be designed to restrict ESG investments by plan fiduciaries.

In 2015 (during the Administration of President Barack Obama) DOL guidance gave the green light to ESG investments…if the investment is appropriate based on economic considerations including those that may derive from ESG factors. (See our perspectives here from November 2015: http://ga-institute.com/Sustainability-Update/big-news-out-of-the-u-s-department-of-labor-for-fiduciaries-opportunity-to-utilize-esg-factors-in-investment-analysis-and-portfolio-management/)

And now in 2020, in June DOL’s EBSA proposed a “new investment duties rule” with “core additions” to the regulations.  (“Financial Factors in Selecting Plan Investments” — this to address “recent trends involving ESG investing”).

Among the comments of DOL that really wrankled the ESG investor universe:

  • New text was added to codify DOL’s “longstanding position” that plan fiduciaries must select investments based on financial considerations relevant to the risk-adjusted economic value of an investment (or “course of action”).
  • The reminder that “Loyalty” duty prohibits fiduciaries from subordinating interests of plan participants and beneficiaries to “non-pecuniary goals”.   ESG factors could be “pecuniary” factors — but only if they present economic risk/opportunity under generally-accepted investment theories.
  • New text was added on required investment analysis and documentation for the “rare circumstance” when fiduciaries are choosing among “truly economically-indistinguishable” investments.  (Huh?)
  • A provision that fiduciaries must consider “other” available investments to meet prudence and loyalty duties.
  • A new provision for selection of investment alternatives for 401-K plans describes what is required for “pursuing” one or more ESG-oriented objectives in the investment mandate (or include ESG “parameters” in the fund name).

DOL Comments On These:

“ERISA plan fiduciaries may not invest in ESG vehicles when they understand an underlying investment strategy…is to subordinate return or increase risk for the purpose of non-financial objectives.”  And

“Private [Sector] employer-sponsored retirement plans are not vehicles for furthering social goals or policy objectives…not in the interest of the plan…ERISA plans should be managed with unwavering focus on a single, very important social goal: providing for the retirement security of American workers.”

After the rule changes were published, numerous investors pushed back – some summaries for you that were published on the 401K Specialist web platform of the responses of some fiduciaries who object to the proposed rule (“Commenters Hammer DOL of Proposed  ESG Rule”).

More than 1,500 comments have been submitted so far to DOL, calling for changes in the proposed rule, withdrawal, and the very short comment period (just 30 days, ended August 3, vs. the usual 90 days).

Investor/Fiduciary Pushback:

T. Rowe Price:   The proposed rule is attempting to solve a problem that does not exist. Worse, the proposed rule discourages fiduciaries from taking into account ESG factors that should be considered.

ICCR/Interfaith Center on Corporate Responsibility:  The rule would impose significant analytical and documentation burdens on fiduciaries of benefit plans governed by ERISA wishing to select (or allow individual account holders to select) investments that use ESG factors in investment analysis, or that provide ESG benefits (signed by 138 member institutions).

ESG Global Advisors: The Proposal has misunderstood and/or mischaracterized the nature and purpose of ESG integration…this is likely to lead to confusion for ERISA fiduciaries and additional costs to plan savers. Plan fiduciaries will struggle to fulfill their obligation to integrate all financially-material ESG risk factors into their investment process.

Morningstar: The Department’s rule is out of step with the best practices asset managers and financial advisors use to integrate ESG considerations into their investment processes and selections. The proposed rule would…erect barriers to considering ESG factors that many financial professionals consider as a routine part of investment management…

Voya Financial Inc.: The Proposal is fundamentally flawed for two reasons…among the many qualitative factors an ERISA fiduciary may appropriately consider…the Proposal singles out ESG factors and subjects them to special tests…second, the Proposal fails to account for the positive effect on investment behavior that the availability of ESG-focused investment options can have…

American Retirement Association: …appropriate investments that include ESG factors should not be prohibited from qualifying as Qualified Default Investment Alternatives (“QDIAs”)…

The Wagner Law Group:  The proposed amendment is inconsistent with existing law and guidance…it would require fiduciaries to only consider pecuniary factors instead of using their judgment and discretion to evaluate investments under the totality of circumstances…a narrow list of permissible factors is inconsistent with the notion that prudence is not determined by a checklist and is a fact-specific determination…

BlackRock:  …the Proposal creates an overly prescriptive and burdensome standard that would interfere with plan fiduciaries’ ability and willingness to consider financially-material ESG factors…we urge DOL to engage with the industry to understand how investment options incorporating ESG factors are used in ERISA plans…

Members of Congress – the body that passed ERISA during its 93rd session in 1974 – reacted along partisan lines.

Republican members of the House Committee on Education and Labor submitted a letter of support of the DOL action.

Democrat Party members (41 of them) of the House and 20 members of the House Education and Labor Committee expressed opposition to the rule changes.

The Securities & Exchange Commission is looking at ESG investments as well – soliciting public comment “for the appropriate treatment for funds that use terms such as ESG in their name and whether the terms are likely to mislead investors” (also in the Federal Register post).

In May 2020 the SEC Investor Advisory Committee / Investor-as-Owner Subcommittee issued their perspectives on ESG disclosure:  https://www.sec.gov/spotlight/investor-advisory-committee-2012/recommendation-of-the-investor-as-owner-subcommittee-on-esg-disclosure.pdf

There are more details for you here (the investor response summaries): https://401kspecialistmag.com/commenters-hammer-dol-on-proposed-esg-rule/

The Department of Labor’s EBSA proposal highlights are here as published in the Federal Register, June 30, 2020: http://ga-institute.com/Sustainability-Update/big-news-out-of-the-u-s-department-of-labor-for-fiduciaries-opportunity-to-utilize-esg-factors-in-investment-analysis-and-portfolio-management/

Notes:  The Secretary of Labor is Eugene Scalia, a nominee of President Donald Trump.

Acting Assistant Secretary for EBSA is Jeanne Klinefelter Wilson (appointed in June 2020).

There is an ERISA Advisory Council with six members.  Effective July 14, 2020:

  • Glenn Butash is chair; he is managing counsel at Nokia Corp.
  • David Kritz is vice-chair; he is deputy counsel at Norfolk Southern Corp.
  • John Harney is partner at law firm O’Donoghue and O’Donoghue.
  • Peter Wiedenbeck is Washington University School of Law professor.
  • James Haubrock is CPA and shareholder, Clark Schaefer Hackett.
  • Lisa Allen is compliance consultant, Altera Group.

Stay Tuned:  We will update you when decisions are announced by the Department of Labor.