ERISA Litigation Reform Act

— 607 — Department of Labor and Related Agencies so, the question relevant to DOL is whether, and under what conditions, fiduciaries should be permitted to follow this path as well. While Americans are free to invest their own savings however they wish, in ERISA, Congress imposed strict duties on employer-sponsored worker retirement plans as a prophylactic protection of workers’ retirement security in general. Recognizing the unique status of employer-managed retirement savings, in ERISA, Congress required that fiduciaries exclusively seek the best interests of plan beneficiaries. Because ESG investing necessarily puts other considerations before the interests of the beneficiary, ESG investing by plan managers is an inappropriate strategy under ERISA. l DOL should prohibit investing in ERISA plans on the basis of any factors that are unrelated to investor risks and returns. l DOL should return to the Trump Administration’s approach of permitting only the consideration of pecuniary factors in ERISA. However, this approach should not preclude the consideration of legitimate non-ESG factors, such as corporate governance, supply chain investment in America, or family-supporting jobs. l DOL should consider taking enforcement and/or regulatory action to subject investment in China to greater scrutiny under ERISA. Many large retirement and pension plans remain invested in China despite its lack of compliance with U.S. accounting standards and state control over all aspects of private capital. Alternative View. Some conservatives believe that ERISA plan investments should be made solely on a pecuniary basis and the consideration of any non-pe- cuniary factor, ESG or otherwise, should be prohibited. Additionally, other conservatives believe that even though ESG investing is often not a sound finan- cial strategy, it is not wrong for retirement plans to offer ESG investment options so long as individuals explicitly acknowledge and choose to pursue investment options that do not exclusively maximize pecuniary gains. Thrift Savings Plan. The Thrift Savings Plan (TSP) is the retirement savings benefit plan for most federal employees and many former employees. The TSP is managed by the Federal Retirement Thrift Investment Board (FRTIB). At over $800 billion in assets under management, the TSP is one of the largest retirement plans in the world. — 608 — Mandate for Leadership: The Conservative Promise l DOL should reverse efforts to politicize the TSP by removing “mutual fund” windows that encourage ESG, and should clarify the fiduciary duties of the TSP. Recent efforts by congressional Democrats and the Biden Administration to politicize the TSP by offering selective “mutual fund” windows that encourage ESG should be reversed by DOL, and the fiduciary duties of the TSP should be clarified by the department to preclude ESG investments absent individual stock selection by the participant. The TSP is managed under contract by private-sector fund managers. Its current managers are BlackRock and State Street Global Advisers. Both of these managers have demonstrated a public commitment to use the funds they manage to advance ESG. l The federal government should follow the lead of multiple state governments in removing their pension funds from fund managers such as BlackRock and State Street Global Advisers, and contract with a competitive, private-sector manager that will comply with its fiduciary duties. l DOL should also consider bringing enforcement actions against BlackRock and State Street Global Advisers for their violations of fiduciary duty while managing the TSP. l Congress should enact legislation authorizing the FRTIB to exercise its independent business judgment in exercising the proxy votes for its holdings of the TSP and provide clear proxy voting guidelines for the FRTIB to follow. The current proxy adviser market is dominated by two firms, Institutional Shareholder Services and Glass Lewis, which use heavily weighted ESG criteria in directing the proxy votes of pension plans. If feasible, the new legislation should also offer a streamlined process for other proxy advisers to compete for the TSP’s business. As the principal retirement savings plan of America’s servicemen and women, part of the FRTIB’s fiduciary duties in managing the TSP is a duty not to invest in governments that are enemies of the United States. Yet the FRTIB has repeatedly approved the investment of TSP funds in Chinese military companies and state-owned enterprises. Under the Trump Administration, DOL ordered the FRTIB to cease investments in China. However, under the Biden Administration, the TSP has made available a wide range of investments in China.

— 760 — Mandate for Leadership: The Conservative Promise ENDNOTES 1. H.R. 7953, Small Business Act, Public Law 85-536, 85th Congress, July 18, 1958, § 2, https://uscode.ecfr.io/ statutes/pl/85/536.pdf (accessed February 17, 2023), amended by H.R. 4877, One Stop Shop for Small Business Compliance Act of 2021, Public Law 117-188, 117th Congress, October 20, 2022, https://www.congress. gov/117/plaws/publ188/PLAW-117publ188.pdf (accessed February 17, 2023). 2. U.S. Small Business Administration, “About SBA: Organization: Mission,” https://www.sba.gov/about-sba/ organization (accessed February 19, 2023). 3. Michael Faulkender, Robert Jackman, and Stephen I. Miran, “The Job-Preservation Effects of Paycheck Protection Program Loans,” U.S. Department of the Treasury, Office of Economic Policy, Working Paper No. 2020-01, December 2020, p. 9, https://home.treasury.gov/system/files/226/Job-Preservation-Effects- Paycheck-Protection-Program-Loans.pdf (accessed February 16, 2023). 4. Kate Rogers, Scott Zamost, Karina Hernandez, and Jennifer Schlesinger, “As Pandemic Aid Was Rushed to Main Street, Criminals Seized on Covid Relief Programs,” CNBC, April 15, 2021, https://www.cnbc. com/2021/04/15/as-pandemic-aid-was-rushed-to-main-street-criminals-seized-on-ppp-eidl-.html (accessed February 16, 2023). 5. Kevin Brewer, “Bills Extend Statute of Limitation for Prosecuting PPP, EIDL Fraud,” Journal of Accountancy, August 10, 2022, https://www.journalofaccountancy.com/news/2022/aug/bills-extend-statute-limitation- prosecuting-ppp-eidl-fraud.html (accessed February 16, 2023). 6. Sacha Pfeiffer, “Virtually All PPP Loans Have Been Forgiven with Limited Scrutiny,” NPR, October 12, 2022, https://www.npr.org/2022/10/12/1128207464/ppp-loans-loan-forgiveness-small-business#:~:text=As%20 COVID-19%20shutdowns%20threatened,early%20days%20of%20the%20pandemic (accessed February 16, 2023). 7. U.S. Small Business Administration, “About SBA: Organization: SBA History,” https://www.sba.gov/about-sba/ organization (accessed February 19, 2023). 8. President Richard Nixon, Executive Order 11518, “Providing for the Increased Representation of the Interests of Small Business Concerns Before Departments and Agencies of the United States Government,” March 20, 1970, in Federal Register, Vol. 35, No. 56 (March 21, 1970), pp. 4939–4940, https://tile.loc.gov/storage-services/ service/ll/fedreg/fr035/fr035056/fr035056.pdf (accessed February 18, 2023). 9. S. 3331, Small Business Amendments of 1974, Public Law 93-386, 93rd Congress, August 23, 1974, https://www. congress.gov/93/statute/STATUTE-88/STATUTE-88-Pg742.pdf (accessed February 19, 2023). 10. S. 299, Regulatory Flexibility Act, Public Law No. 96-354, 96th Congress, September 19, 1980, https://www. congress.gov/96/statute/STATUTE-94/STATUTE-94-Pg1164.pdf (accessed February 19, 2023). 11. Maeve P. Carey, “The Regulatory Flex Act: An Overview,” Congressional Research Service In Focus No. IF11900, August 16, 2021, https://crsreports.congress.gov/product/pdf/IF/IF11900 (accessed February 18, 2023). 12. U.S. Small Business Administration, Office of Advocacy, “The Regulatory Flexibility Act,” https://advocacy.sba. gov/resources/the-regulatory-flexibility-act/ (accessed February 18, 2023). 13. H.R. 644, Trade Facilitation and Trade Enforcement Act of 2015, Public Law No. 114-125, 114th Congress, February 24, 2026, https://www.congress.gov/114/statute/STATUTE-130/STATUTE-130-Pg122.pdf (accessed March 21, 2023). 14. U.S. Small Business Administration, Office of Advocacy, “Advocacy Releases Trade Report,” December 21, 2018, https://advocacy.sba.gov/2018/12/21/advocacy-releases-trade-report/ (accessed March 21, 2023). 15. Associated Press, “Reagan Offers $994-Billion ‘Hard-Choices’ 1987 Budget,” Los Angeles Times, February 5, 1986, http://www.latimes.com/archives/la-xpm-1986-02-05-mn-4369-story.html (accessed February 18, 2023). 16. Testimony of Hon. Hector V. Barreto, Administrator, Small Business Administration, in hearing, The President’s FY 2006 Budget Request for the Small Business Administration, Committee on Small Business and Entrepreneurship, U.S. Senate, 109th Congress, 1st Session, February 17, 2005, p. 8, https://books.google.com/ books?id=UwD-2ICa8k8C&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false (accessed February 18, 2023). See also Report No. 109-49, Summary of Legislative and Oversight Activities During the 108th Congress, Committee on Small Business and Entrepreneurship, U.S. Senate, 109th Congress, 1st Session, March 30, 2005, p. 21, https://www.congress.gov/109/crpt/srpt49/CRPT-109srpt49.pdf (accessed February 18, 2023). — 761 — Small Business Administration 17. Editorial, “The Small Business Administration Needs Reforming,” The Washington Post, December 18, 2016, https://www.washingtonpost.com/opinions/the-sba-needs-reforming/2016/12/18/b639fc4c-c159-11e6-8422- eac61c0ef74d_story.html (accessed February 18, 2023). 18. Robert Jay Dilger, Anthony A. Cilluffo, and R. Corinne Blackford, “Small Business Administration Funding: Overview and Recent Trends,” Congressional Research Service Report for Members and Committees of Congress No. R43486, updated July 14, 2022, Summary, https://sgp.fas.org/crs/misc/R43846.pdf (accessed November 18, 2022). 19. Ibid., p. 2. Emphasis added. 20. Press release, “SBA Announces End-of-Year Capital Benchmarks Showing Historic Support for Small Businesses Under Administrator Guzman,” U.S. Small Business Administration, December 13, 2022, https:// www.sba.gov/article/2022/dec/13/sba-announces-end-year-capital-benchmarks-showing-historic-support- small-businesses-under?utm_medium=email&utm_source=govdelivery (accessed February 18, 2023). 21. USASpending,gov, “Agency Profile: Small Business Administration (SBA),” data through September 29, 2022, https://www.usaspending.gov/agency/small-business-administration?fy=2022 (accessed February 18, 2023). 22. Testimony and prepared statement of Tad DeHaven, Budget Analyst, Cato Institute, in hearing, An Examination of SBA Programs: Eliminating Inefficiencies, Duplications, Fraud, and Abuse, Committee on Small Business and Entrepreneurship, U.S. Senate, 112th Congress, 1st Session, June 16, 2011, pp. 80–90, https://www. govinfo.gov/content/pkg/CHRG-112shrg88373/pdf/CHRG-112shrg88373.pdf (accessed February 18, 2023). 23. Sarah Westwood, “Feds Gave $400 Million in Contracts to Ineligible Firms,” Washington Examiner, September 28, 2014, https://www.washingtonexaminer.com/feds-gave-400-million-in-contracts-to-ineligible-firms (accessed February 18, 2023). 24. Keith Girard, “Inside the SBA’s Monumental Katrina Loan Scandal,” AllBusiness.com, https://www.allbusiness. com/inside-the-sbas-monumental-katrina-loan-scandal-11793824-1.html (accessed February 18, 2023). 25. Arnold & Porter, “CARES Act Fraud Tracker,” last updated January 2, 2023, https://www.arnoldporter.com/en/ general/cares-act-fraud-tracker (accessed February 18, 2023). 26. Jay Edwards, “Bipartisan Call to Crack Down on COVID-19 PPP/EIDL Fraud, Prosecute Fraudsters to the Fullest Extent of the Law,” WRNJ Radio (Hackettstown, New Jersey), October 21, 2022, https://wrnjradio.com/ bipartisan-call-to-crack-down-on-covid-19-ppp-eidl-fraud-prosecute-fraudsters-to-the-fullest-extent-of-the- law/ (accessed March 21, 2023). 27. See, for example, H.R. 7628, IMPROVE the SBA Act, 117th Congress, introduced April 28, 2022, https://www. congress.gov/117/bills/hr7628/BILLS-117hr7628ih.pdf (accessed February 18, 2023). 28. In varying degrees, almost every small-business advocacy organization and trade association engages with the SBA. During periods of hyper-regulatory activity fueled by an activist Administration, the small- business community engages more frequently with the Office of Advocacy through its roundtables and other mechanisms in the hope of warding off costly and intrusive rulemakings. A future conservative Administration can look to the following groups, among others, for support in advancing both SBA and broader policy reform: American Hotel and Lodging Association; Asian American Hotel Owners Association; Association of Builders and Contractors; Associated Equipment Distributors; Ceramic Tile Distributors Association; Consumer Technology Association; Family Business Coalition; Foodservice Equipment Distributors Association; Heating, Air-conditioning, and Refrigeration Distributors International; Independent Bakers Association; Independent Community Bankers Association; Independent Electrical Contractors’ International Association of Plastics Distributors; International Franchise Association; Metals Service Center Institute; National Association of Electrical Distributors; National Association of Manufacturers; National Association of Wholesaler-Distributors; National Fastener Distributors Association; National Marine Distributors Association; National Federation of Independent Business; National Ready Mix Concrete Association; National Small Business Association; Small Business and Entrepreneurship Council; and U.S. Hispanic Chamber of Commerce. Additionally, the small-business community is diverse and broad, and several key groups strongly support SBA lending but vigorously oppose tax, regulatory, and spending policies that are intrusiveness or costly to business. Conservative think tanks and taxpayer organizations like The Heritage Foundation, the Cato Institute, the National Taxpayers Union, Citizens Against Government Waste, the Taxpayers Protection Alliance, and Americans for Tax Reform (among others) also have a stake in an improved and cost-effective SBA.

— 606 — Mandate for Leadership: The Conservative Promise and wasted resources, and artificially increases consumer prices. It is a significant problem that is difficult to address at the federal level. l Congress should ensure that interstate compacts for occupational license recognition that are federally funded do not require new or additional qualifications (that is, qualifications that do not originate from state governments themselves) for licensed professionals to participate. l Congress should ensure that well-qualified licensees are not locked out of the job market by restrictive government programs funded by the federal government. (For instance, medical doctors must complete residency training to practice, and because Medicare provides funding for significantly fewer residencies than there are doctors, sizable numbers of MDs are locked out of the job market every year.) Wagner–Peyser Staffing Flexibility. State agencies that administer unem- ployment benefits and workforce development programs should be able to hire the best people to do the job and should not be required to use state employees if a contractor can do the job better. Further, the federal government should not force a state to use non-union labor or union labor for these positions. l DOL should repromulgate the Trump-era staffing flexibility rule, and Congress should codify it. WORKER RETIREMENT SAVINGS, ESG, AND PENSION REFORMS l Remove ESG considerations from ERISA. Environmental, Social, Governance (ESG) investing is a relatively recent strategy promoted by large asset managers that focuses not only on a company’s bottom line, but also on the company’s compliance with liberal political views on climate change, racial quotas, abortion, and other issues. The ESG movement has focused especially on reducing greenhouse gas emissions. For example, ESG proponents advocate for divestment from oil and gas companies or the exercise of investor influence to reduce oil and gas production. ESG considerations unrelated to investor risks and returns necessarily sacrifice trust law’s traditional sole focus on investment returns for collateral interests. And while individual investors may prefer to invest in “green” companies, “woke” companies, or companies with greater board diversity, and may even be willing to sacrifice some financial gains to do — 607 — Department of Labor and Related Agencies so, the question relevant to DOL is whether, and under what conditions, fiduciaries should be permitted to follow this path as well. While Americans are free to invest their own savings however they wish, in ERISA, Congress imposed strict duties on employer-sponsored worker retirement plans as a prophylactic protection of workers’ retirement security in general. Recognizing the unique status of employer-managed retirement savings, in ERISA, Congress required that fiduciaries exclusively seek the best interests of plan beneficiaries. Because ESG investing necessarily puts other considerations before the interests of the beneficiary, ESG investing by plan managers is an inappropriate strategy under ERISA. l DOL should prohibit investing in ERISA plans on the basis of any factors that are unrelated to investor risks and returns. l DOL should return to the Trump Administration’s approach of permitting only the consideration of pecuniary factors in ERISA. However, this approach should not preclude the consideration of legitimate non-ESG factors, such as corporate governance, supply chain investment in America, or family-supporting jobs. l DOL should consider taking enforcement and/or regulatory action to subject investment in China to greater scrutiny under ERISA. Many large retirement and pension plans remain invested in China despite its lack of compliance with U.S. accounting standards and state control over all aspects of private capital. Alternative View. Some conservatives believe that ERISA plan investments should be made solely on a pecuniary basis and the consideration of any non-pe- cuniary factor, ESG or otherwise, should be prohibited. Additionally, other conservatives believe that even though ESG investing is often not a sound finan- cial strategy, it is not wrong for retirement plans to offer ESG investment options so long as individuals explicitly acknowledge and choose to pursue investment options that do not exclusively maximize pecuniary gains. Thrift Savings Plan. The Thrift Savings Plan (TSP) is the retirement savings benefit plan for most federal employees and many former employees. The TSP is managed by the Federal Retirement Thrift Investment Board (FRTIB). At over $800 billion in assets under management, the TSP is one of the largest retirement plans in the world.