H.J.Res. 30: Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Labor relating to “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights”.

The last person to issue zero vetoes during their entire presidency was James Garfield in the 1880s.

Context

An investing approach nicknamed ESG (environmental, social, and governance) has gained popularity in recent years, primarily on the left.

The approach seeks to incorporate non-monetary factors when deciding whether to invest in a corporation, such as a company’s greenhouse gas emissions and contributions to climate change, the ratio of the top executive’s pay to the median employee, or the percentage of women serving on the Board of Directors.

In November 2020, the Trump administration’s Labor Department finalized a rule making it harder for financial advisers and managers to incorporate ESG considerations when running a client’s 401(k) or retirement account. The rule was officially titled “Financial Factors in Selecting Plan Investments.”

In December 2022, the Biden administration’s Labor Department finalized a rule essentially reversing the Trump-era guidance, once again making it easier for financial advisers and managers to incorporate ESG considerations when running a client’s 401(k) or retirement account. The rule is officially titled “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,”

Note that it didn’t require such ESG considerations. Instead, it only made it easier to do so if a financial adviser or manager so chose.

What the legislation does

Congressional legislation would overturn the Biden administration’s rule, once again reverting back to the 2020-era Trump administration’s policy.

The House version was introduced on February 7, as H.J.Res. 30, by Rep. Andy Barr (R-KY6). The Senate version was introduced that same day, as S.J.Res. 8, by Sen. Mike Braun (R-IN).

The legislation did not appear to have another, more “official” title.

What supporters say

Supporters argue that Biden’s rule focuses on more easily allowing “woke” left-leaning policies, instead of what should be the actual goal of financial investing: making the most money.

“Americans’ 401(k)s have taken a beating from the Biden inflation crisis, and now as one of the most ESG-focused financial institutions in the U.S. has collapsed in Silicon Valley Bank, President Biden is doubling down on prioritizing a progressive agenda over Americans’ retirements and the will of Congress,” Sen. Braun said in a press release. “Good luck explaining this one.”

“Retirement plans should be solely focused on delivering maximum returns, not advancing a political agenda,” Rep. Barr said in a separate press release. “If Congress doesn’t block the Department of Labor’s rule greenlighting ESG investing in retirement plans, retirees will suffer diminished returns on the investment of their hard-earned money.”

What opponents say

Opponents counter that, contrary to Republicans’ claims as the political party supporting free markets, the Democratic position here is actually more free-market than the GOP’s.

“To be clear, the 2022 rule is not a mandate — it does not require any fiduciary to make investment decisions based solely on ESG factors,” the White House wrote in its veto threat. “The rule simply makes sure that retirement plan fiduciaries must engage in a risk and return analysis of their investment decisions, and recognizes that these factors can be relevant to that analysis.”

“If DOL [Department of Labor] were to revert to the 2020 rule,” the veto threat continued, “the federal government would be interfering with the market in a manner that stands in the way of retirement plan fiduciaries’ ability to protect these hard-earned retirement savings and pensions, and unnecessarily limit the options available to retirement plan participants and investors.

Votes and odds of passage

The House version attracted 119 cosponsors, all Republicans. The House passed it on February 28 by 216–204. All voting House Republicans were in favor, while one House Democrat crossed party lines in support: Rep. Jared Golden (D-ME2).

The Senate version attracted 49 bipartisan cosponsors: 48 Republicans and one Democrat, Sen. Joe Manchin (D-WV). The Senate passed it on March 1 by 50–46. All voting Senate Republicans were in favor, while two Senate Democrats crossed party lines in support: Sens. Manchin and Jon Tester (D-MT).

President Biden vetoed it on March 20.

It requires two-thirds of both the House and Senate to override a presidential veto. Since the original votes in favor were only by narrow margins of 52% to 48% in the Senate and 51% to 49% in the House, Biden’s veto will almost certainly stand. His administration’s rule will take effect after all.