Regulatory and Legal Reform

The two largest, most influential proxy advisory firms in the U.S. wield outsize, harmful influence on businesses—and they need to be regulated now, the NAM said this week.

What’s going on: Together, Institutional Shareholder Services and Glass Lewis control 97% of the proxy advice market. Those firms exist to advise institutional investors on how to vote on shareholder proposals and other proxy ballot measures that come before publicly traded companies.

• The ISS/Glass “duopoly … [is insulated] from accountability—to the point where these two market players have significant conflicts of  interest and are widely recognized as offering error-filled, opaque, one-size-fits-all advice and yet they still enjoy market dominance,” NAM Managing Vice President Charles Crain told the House Judiciary Subcommittee on the Administrative State, Regulatory Reform and Antitrust at a hearing on Wednesday.
• The firms use their dominant market position and influence over proxy vote outcomes to drive investors and companies to buy consulting, governance ratings and other related services.
• The firms remain largely unregulated despite calls for reform “and everyday people pay the price,” Crain continued.

What they do: While the voting platforms of ISS and Glass Lewis offer a legitimately helpful service—connecting investors to the back end of the proxy voting system—the firms use the platforms to steer clients toward their own voting research and recommendations.

• “They’ll even pre-fill the platform with their preferred votes and then robo-vote an investor’s shares on their behalf,” said Crain.
• Furthermore, some of the proxy firms’ guidelines (such as on equity incentive plans) are so complex and opaque that companies are effectively forced into hiring the firms’ corporate consulting arms to navigate them.
• The proxy firms have other policies—for example, they recommend for annual shareholder votes on executive compensation at companies even though Congress has said annual voting is unnecessary—that “appear designed to increase their own market power,” according to the NAM.

What should be done: Congress should pass the legislation introduced by Subcommittee Chairman Scott Fitzgerald (R-WI), the Stopping Proxy Advisor Racketeering Act, Crain said.

• The measure would bar “proxy advisory firms from issuing voting recommendations when any conflict could reasonably be expected to affect the objectivity or reliability of proxy advice, including being a member of a group that supports proposals similar to the shareholder-sponsored proposal,” according to Fitzgerald’s office.
• “[M]anufacturers support Chairman Fitzgerald’s bill,” Crain concluded because, “[m]anufacturers understand the stakes of getting this right.”