Department of Shareholder Primacy?

Department of Shareholder Primacy?

This week, the Department of Labor (DOL), headed by Eugene Scalia, announced a proposed rule intending to “update and clarify” the DOL’s investment duty regulations relating to ERISA Plans. DOL intends to impose a ban on any fiduciary managing an ERISA plan if they have anything but pure profit as a primary investment goal.

The new DOL clarifications intend to put ESG in its place (down to the sub-basement) by proposing that ERISA plan fiduciaries, if following their “duties of prudence” may not consider “non-financial objectives” (e.g. ESG) if those goals “subordinate return or increase risk for the purpose of non-financial objectives.” 

Clearly DOL seems to understand better than the growing surge of people now looking for impact investments. We are all now being schooled by DOL that those considerations are non-financial – meaning that they have no connection to any sort of financial bottom line.

DOL wants to make very clear that material economic risks like ESG considerations are not goals to be followed under “generally accepted investment theories.” And though DOL declines to cite what those generally accepted theories might be, we can easily assume they are referring to ‘Uncle Milty’ Friedman’s Capitalism and Freedom manifesto that gave prominence to the Shareholder Primacy campaign successfully waged on us since the late ‘70s.

No one should be too surprised by what DOL is trying to do here, especially with Mr. Scalia now firmly entrenched. As Senator Minority Leader Chuck Shumer stated during Scalia’s confirmation hearing process, “Mr. Scalia’s life work has been utterly opposed to the mission of the agency to which he’s nominated. He has sided repeatedly with the large corporate interest against the working people.”

But wait! Didn’t Senate HELP Chairman Lamar Alexander (R. Tenn.) say, during Scalia’s nomination hearing that “[i]t is important for the Department of Labor to create an environment to help employers and employees succeed in today’s rapidly changing workplace…”?? 

Perhaps the confusion is that Alexander is using Newspeak while we are still trying to make sense of things in English.

Indeed, offering rules to weaken attempts to allow retirement accounts to invest in companies that are focused more on the long term betterment of our planet, society (employees, stakeholders and better governance models) and our local communities certainly could be seen as contrary and anemic by those following Uncle Milty’s “generally accepted investment theories.” But those are raw, blatant and childish attempts at protecting the beloved Shareholder Primacy ideals. (Hey, if we can’t get enough judges to rule that Shareholder Primacy is the law of the land, let’s get it inserted in any rules we have power over). 

These kinds of shrill attacks on any attempts to reign in our hyper-capitalist ways may still have some short term successes, but the trend is now turning away from that system that is destroying our ability to live decent healthy lives – and to see why ending injustices at all levels will actually preserve, not diminish, our future health.  Even if this rule is imposed, savvy investment fiduciaries may understand that they will always keep as a priority the “financial considerations relevant to the risk-adjusted economic value of a particular investment or investment course of action” and avoid any “subordination of the interests of plan participants and beneficiaries in retirement income and financial benefits,” while also looking hard at the ESG factors that they understand will meet those goals over the long term.

In announcing the proposed rule, Scalia says that “[p]rivate employer-sponsored retirement plans are not vehicles for furthering social goals or policy objectives that are not in the financial interest of the plan, Rather, ERISA plans should be managed with unwavering focus on a single, very important social goal: providing for the retirement security of American workers.”  Oddly, he left out making America Great Again, but whatever.

As the DOL press release states at the end, “[t]he mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights” (emphasis added). Might efforts to help employees succeed in their workplace create better long-term financial results? Wouldn’t giving employees a seat at the governance table give companies a better chance of long-term success by enriching the environments of the workplace, their health and safety? I wonder if Senator Alexander understands that those efforts might, at first blush, look like they are reducing short term profits, but instead, establishing long term success for a company. 

And maybe, just maybe, regular folks with retirement accounts and their fiduciaries see that as well. 

Clearly, Mr. Scalia feels that no other goal but Shareholder Primacy is important enough to consider. Not the fiduciary, nor the beneficiary with funds in a retirement account who may beg to differ. Scalia wants to make clear that only he and his DOL gang know what is best for retirees, and impacts caused by a warming planet, employees treated like serfs, and patriarchal rulers of boards obviously have no significant effect on those financial results.

Mr. Scalia and those that put him and his boss in power for now should pause to reflect on Martin Luther King, Jr.’s reminder that “the arc of the moral universe is long, but it bends toward justice.” Funding goals that bend toward justice for all seems like a good, material and sound financial objective to us, and is becoming a generally accepted investment theory.

Black Lives Matter: How Do We End Injustice?

Black Lives Matter: How Do We End Injustice?

Black Lives Matter

We have been listening and learning from many resonant voices in the Black Lives movement. We are asking ourselves how to be a better ally and how we can use our skills and resources to make change that is long overdue. One key question on our minds:

How will we end racial injustice if we leave in place the economic unfairness that our financial system supports?

Below are some of our thoughts, questions and concerns on the intersection of economic inequality with social and racial injustice and how we can work for change. We don’t have all of the answers but our commitment to racial, social and economic justice is unwavering.

How do we end injustice?

The killings, imprisonments, lack of equal education and opportunities, and other forms of racial injustices must end.  

At Cutting Edge, we have always believed that one root cause of social injustice has been economic inequality, and we will continue to work toward economic justice in everything we do. But how will we forge real change, especially if change means upsetting the economic injustices that are the byproduct of our hyper-financialized system. How will we end racial injustice if we leave in place the economic unfairness that the system supports?

Right now, we have many more questions than answers, but we want to explore this with our community – to listen and learn, to participate, to act, to be a good ally.

There seems to be a metaphorical Invisible Knee, akin to Adam Smith’s Invisible Hand, resting on an entire race of people in the U.S., and for all peoples who are systemically held down, unable to breathe and to live a healthy life. Smith described that unseen force as fueled by the individual’s self-interested actions, which has been the cornerstone and justification for our laissez-faire and “free market” economic philosophy. Another unseen force seems borne out of that same economic system fueled by the free market, a force that continues to suffocate our own brothers and sisters.

Recent video images show just how embedded our systemic racism is in our society. Books such as sociologist Margaret Hagerman’s, “White Kids: Growing Up with Privilege in a Racially Divided America” provide important insights into how subtle and unconscious actions can evolve into racist attitudes. Acknowledging the “structural racism” that impedes on our inalienable Rights outlined in the Constitution is a good step in the right direction, but it still begs the question why the structure had allowed racism to continue for hundreds of years, past the Civil War, the ’68 riots, the assassination of black leaders protesting for change, beyond the Civil Rights Act, and over the bodies of so many, killed by hatred and indifference. Why are people still being raised and taught to discriminate and hate? What purpose does that serve if not an economic one?

And is the outpouring of support by businesses today going to do anything to make lasting changes if the economic structure they operate within has built the walls to keep most out? Wall Street was named for the barrier built to keep away the First Nation peoples so that European-Americans could pursue their self-interested business and trading. There is still an Invisible Wall that helps keep the Knee lowered.

Without power, wealth is difficult to protect. The more concentrated the wealth, the more power the few need for protection. And wealth begets wealth. Of course, there are the almost mythical outliers who, given the right circumstances, create wealth through hard work, good ideas, and perseverance. But if the deck is stacked against you from the start, and regardless of your abilities, if the field you play on is always slanted uphill, any merit-based chances are negated. We may think we live in a meritocracy, but if we do, it’s one that provides unfair head-starts to a privileged few. And as the income and wealth gaps continue to grow, so too the disparities in education and opportunities. The results become self-fulfilling, and ignorance flourishes.

The economic system we now have today already conveniently excludes most Americans from participating and gaining a foothold, but when viewed through race and gender lenses, where ignorance fosters discrimination, the exclusion factor rises precipitously.

And that is the system our police are encouraged, or in some cases, outright ordered to serve and protect – over and above all its peoples. If we fear the loss of the advantages we have created for ourselves, it is then too easy to demonize all those that we think are out to take those gains from us. Isn’t the idea of “making America great again” a representation of just that notion?

And is our economic system, now heavily influencing our politicians elected to oversee our governance and the regulations, all that different from what we have done with our policing on the streets?

Taxes for the corporations and the wealthy keep getting cut to serve, protect and preserve their assets, so that they can keep growing them as fast as possible. For every effort made to provide help and benefits to small businesses crucial to healthy local economies, they are dwarfed by the benefits that pour out to the top few percent. Our government and regulators serve and protect the system by, consciously or not, rewarding those who have the head start. And the election dollars they pour back into the politicians ensures that the system continues unabated.

And isn’t our country’s miserable record in dealing with COVID-19 also a representation of this same system? Blacks make up most of the U.S. deaths from this virus, and those with limited means are experiencing most of the layoffs. Some return to a workplace that may not be able to keep them safe. Yet those who have the wealth and means to stay safe are doing just fine.

This wealthiest of nations has once again proven its ability to “serve and protect” its economic interests above all else – to backstop our corporations in times of stress, but to behave like a Banana Republic when it comes to serving and protecting its people. Our leaders have shifted the focus away from medical and scientific advice, which if followed would mean taking a hard pause in the economy for as long as it takes to make us safe. Other countries have done this while implementing more aggressive measures to prevent the spread. Other countries are now reopening safely. We have done neither.

As a nation, our attention is on our beloved “economy” – the one represented by the national markets. Our actions went mostly to safeguard and bolster our hyper-financial engines and their shareholders (i.e. those who contribute most of the political funds), while acting like Mr. Burns from the Simpsons when asked to protect small businesses from shuttering, or to help individuals who are now food and shelter insecure. Our greatest concern is to limit as much as possible any loss of revenue, while (like the Trump reelection campaign) demanding no liability when bringing people back in and near each other again.

Is this simply an accurate representation of what we really do stand for in this country? Perhaps we are faithfully represented by the unjust social and economic order that we have built and supported all along.

To remain silent may speak to complicity, but is it enough to only speak out? We hope that corporate America’s calls for racial justice extend next to calls for economic justice as well. But will the beneficiaries of this hyper-capitalist system be willing to look deep into the soul of our republic to find the reasons that the income and wealth gaps continue to grow, and why our deadly treatment of those without means continues to rise?

We continue to ask ourselves what more we must face, and act upon, so that together, enough of us can work to end the injustices that are holding so many down. We call on ourselves and we call on all who participate in, and especially those who have benefited from, this economic system to do the same. And we welcome any and all conversations as we explore these very important issues.

The Cutting Edge team

Want to engage with us on social and economic justice issues? We stand ready to listen, learn and work toward solutions.

Please reach out to us at here and let’s discuss how to collaborate.