Policy and Legal

Congress should act now to ensure that manufacturers and manufacturing workers are protected from so-called “proxy advisory firms,” the NAM told House lawmakers this week at two congressional hearings.

Flaws abound: Proxy firms—powerful, unregulated entities that advise institutional investors on how to vote on proxy ballot measures at public companies—wield outsized influence and must be reformed, NAM Managing Vice President of Policy Charles Crain told the House Subcommittee on Capital Markets at a Tuesday hearing, “Exposing the Proxy Advisory Cartel: How ISS & Glass Lewis Influence Markets.”

• Proxy firms operate with undisclosed conflicts of interest, are unwilling to allow companies to review their draft reports, and are resistant to correcting mistakes in their final vote recommendations. Despite these flaws, proxy firms “still control a significant share of investors’ proxy votes—giving them sway over important corporate decisions,” Crain said.
• In 2020, after years of NAM advocacy, the Securities and Exchange Commission finally adopted a rule to rein in these powerful firms—yet today, proxy firms remain unregulated due to ongoing legal challenges and regulatory neglect.
• “The SEC’s 2020 rule has spent five years hung up in court,” Crain told the subcommittee. “The NAM has had to defend the rule across three separate cases—one of which has oral arguments scheduled for this Friday.”

SEC has authority: Although the largest and most influential proxy firm, Institutional Shareholder Services, “is now claiming in court that the SEC lacks the authority to regulate proxy voting advice at all,” the Securities Exchange Act of 1934 clearly provides the SEC the authority to regulate proxy solicitation, which includes the activities of proxy firms, the NAM said.

Tighten the reins now: “Even assuming that the NAM is successful in defending the SEC’s authority, there is more work for Congress to do,” Crain continued. This entails acting on six House bills that would:

• Create a comprehensive registration regime for proxy firms;
• Ensure that proxy firms remain subject to anti-fraud liability;
• Ban certain proxy firm conflicts of interest;
• Regulate the use of automated “robo-voting” systems;
• Ensure that investment managers carry out their fiduciary duties to their clients when hiring proxy firms; and
• Direct the SEC to conduct a thorough study on proxy firms and the proxy process.  

Retirement savings in jeopardy: On Wednesday, Crain delivered a similar message for the House Subcommittee on Health, Employment, Labor, and Pensions at a hearing titled “Investing for the Future: ERISA’s Promise to Participants.”

• “More than 85% of manufacturing workers are eligible to participate in a workplace retirement plan. These Americans have probably never heard of a proxy firm, and they likely would be shocked to hear that their pension or 401(k) plan assets were being used in a way that could undermine their own retirement security,” Crain explained.
• But that’s exactly what’s happening when pension plan fiduciaries use “plan assets to pursue non-financial ESG goals—or blindly outsourc[e] the voting rights that come with those assets to unregulated and conflicted proxy firms,” he added.
• With their errors, conflicts of interest, political agendas, one-size-fits-all governance standards and more, proxy firms pose huge risks “to everyday Americans’ retirement security,” Crain said.   

Manufacturers support guardrails: “That’s why manufacturers support appropriate guardrails to ensure that ERISA fiduciaries act in plan participants’ best interests when making investment and voting decisions,” Crain explained, adding that the Labor Department under the first Trump administration finalized rules to “do just that.”

• While the last administration largely rescinded those guardrails, Subcommittee Chairman Rick Allen (R-GA) recently introduced a measure that would require ERISA retirement plan fiduciaries to prioritize financial returns when making investment decisions on behalf of clients and to exercise closer oversight of proxy firms.  

Stand up for workers: “Now is the time for Congress and the [Department of Labor] to stand up for these workers and ensure that ERISA plans are operating in their participants’ best interests,” Crain concluded.

In the news: Bloomberg (subscription) covered Crain’s testimony, as did Pensions & Investments (subscription) in two  articles.      
 
What’s next: As Crain previewed in his testimony, the NAM Legal Center will participate in oral arguments on Friday, May 2, before the U.S. Court of Appeals for the DC Circuit—arguing that the SEC has the authority to regulate proxy firms, and that the agency’s 2020 rule doing so was lawful. 

• “Is this high stakes? Absolutely,” Crain told Bloomberg. “Is this the end of the fight if the NAM were to lose? No, it’s not.”