[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] EXAMINING THE MARKET POWER AND IMPACT OF PROXY ADVISORY FIRMS ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON CAPITAL MARKETS AND GOVERNMENT SPONSORED ENTERPRISES OF THE COMMITTEE ON FINANCIAL SERVICES U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION ---------- JUNE 5, 2013 ---------- Printed for the use of the Committee on Financial Services Serial No. 113-27 [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] U.S. GOVERNMENT PRINTING OFFICE 81-762 PDF WASHINGTON : 2013 ____________________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Printing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. HOUSE COMMITTEE ON FINANCIAL SERVICES JEB HENSARLING, Texas, Chairman GARY G. MILLER, California, Vice MAXINE WATERS, California, Ranking Chairman Member SPENCER BACHUS, Alabama, Chairman CAROLYN B. MALONEY, New York Emeritus NYDIA M. VELAZQUEZ, New York PETER T. KING, New York MELVIN L. WATT, North Carolina EDWARD R. ROYCE, California BRAD SHERMAN, California FRANK D. LUCAS, Oklahoma GREGORY W. MEEKS, New York SHELLEY MOORE CAPITO, West Virginia MICHAEL E. CAPUANO, Massachusetts SCOTT GARRETT, New Jersey RUBEN HINOJOSA, Texas RANDY NEUGEBAUER, Texas WM. LACY CLAY, Missouri PATRICK T. McHENRY, North Carolina CAROLYN McCARTHY, New York JOHN CAMPBELL, California STEPHEN F. LYNCH, Massachusetts MICHELE BACHMANN, Minnesota DAVID SCOTT, Georgia KEVIN McCARTHY, California AL GREEN, Texas STEVAN PEARCE, New Mexico EMANUEL CLEAVER, Missouri BILL POSEY, Florida GWEN MOORE, Wisconsin MICHAEL G. FITZPATRICK, KEITH ELLISON, Minnesota Pennsylvania ED PERLMUTTER, Colorado LYNN A. WESTMORELAND, Georgia JAMES A. HIMES, Connecticut BLAINE LUETKEMEYER, Missouri GARY C. PETERS, Michigan BILL HUIZENGA, Michigan JOHN C. CARNEY, Jr., Delaware SEAN P. DUFFY, Wisconsin TERRI A. SEWELL, Alabama ROBERT HURT, Virginia BILL FOSTER, Illinois MICHAEL G. GRIMM, New York DANIEL T. KILDEE, Michigan STEVE STIVERS, Ohio PATRICK MURPHY, Florida STEPHEN LEE FINCHER, Tennessee JOHN K. DELANEY, Maryland MARLIN A. STUTZMAN, Indiana KYRSTEN SINEMA, Arizona MICK MULVANEY, South Carolina JOYCE BEATTY, Ohio RANDY HULTGREN, Illinois DENNY HECK, Washington DENNIS A. ROSS, Florida ROBERT PITTENGER, North Carolina ANN WAGNER, Missouri ANDY BARR, Kentucky TOM COTTON, Arkansas KEITH J. ROTHFUS, Pennsylvania Shannon McGahn, Staff Director James H. Clinger, Chief Counsel Subcommittee on Capital Markets and Government Sponsored Enterprises SCOTT GARRETT, New Jersey, Chairman ROBERT HURT, Virginia, Vice CAROLYN B. MALONEY, New York, Chairman Ranking Member SPENCER BACHUS, Alabama BRAD SHERMAN, California PETER T. KING, New York RUBEN HINOJOSA, Texas EDWARD R. ROYCE, California STEPHEN F. LYNCH, Massachusetts FRANK D. LUCAS, Oklahoma GWEN MOORE, Wisconsin RANDY NEUGEBAUER, Texas ED PERLMUTTER, Colorado MICHELE BACHMANN, Minnesota DAVID SCOTT, Georgia KEVIN McCARTHY, California JAMES A. HIMES, Connecticut LYNN A. WESTMORELAND, Georgia GARY C. PETERS, Michigan BILL HUIZENGA, Michigan KEITH ELLISON, Minnesota MICHAEL G. GRIMM, New York MELVIN L. WATT, North Carolina STEVE STIVERS, Ohio BILL FOSTER, Illinois STEPHEN LEE FINCHER, Tennessee JOHN C. CARNEY, Jr., Delaware MICK MULVANEY, South Carolina TERRI A. SEWELL, Alabama RANDY HULTGREN, Illinois DANIEL T. KILDEE, Michigan DENNIS A. ROSS, Florida ANN WAGNER, Missouri C O N T E N T S ---------- Page Hearing held on: June 5, 2013................................................. 1 Appendix: June 5, 2013................................................. 37 WITNESSES Wednesday, June 5, 2013 Bartl, Timothy J., President, Center on Executive Compensation... 8 Holch, Niels, Executive Director, Shareholder Communications Coalition...................................................... 10 McCauley, Michael P., Senior Officer, Investment Programs and Governance, Florida State Board of Administration (SBA)........ 11 Morgan, Jeffrey D., President and Chief Executive Officer, National Investor Relations Institute (NIRI)................... 13 Pitt, Hon. Harvey L., Founder and Chief Executive Officer, Kalorama Partners, LLC, on behalf of the U.S. Chamber of Commerce....................................................... 7 Stuckey, Darla C., Senior Vice President, Policy & Advocacy, Society of Corporate Secretaries and Governance Professionals.. 15 Turner, Lynn E., Managing Director, LitiNomics................... 17 APPENDIX Prepared statements: Bartl, Timothy J............................................. 38 Holch, Niels................................................. 150 McCauley, Michael P.......................................... 162 Morgan, Jeffrey D............................................ 169 Pitt, Hon. Harvey L.......................................... 182 Stuckey, Darla C............................................. 222 Turner, Lynn E............................................... 345 Additional Material Submitted for the Record Garrett, Hon. Scott: Written statement of Gary Retelny, President, Institutional Shareholder Services Inc................................... 357 Letter from Susan Ferris Wyderko, President and CEO, the Mutual Fund Directors Forum, dated June 4, 2013............ 374 Moore, Hon. Gwen: Written statement of Sean Egan, Chief Executive Officer, Egan-Jones Rating Company.................................. 375 Sherman, Hon. Brad: Written statement of Ann Yerger, Executive Director, the Council of Institutional Investors......................... 376 Waters, Hon. Maxine: Written statement of Anne Simpson, Senior Portfolio Manager, Investments, and Director of Global Governance, the California Public Employees' Retirement System............. 395 Written statement of Katherine H. Rabin, Chief Executive Officer, Glass, Lewis & Co................................. 402 EXAMINING THE MARKET POWER AND IMPACT OF PROXY ADVISORY FIRMS ---------- Wednesday, June 5, 2013 U.S. House of Representatives, Subcommittee on Capital Markets and Government Sponsored Enterprises, Committee on Financial Services, Washington, D.C. The subcommittee met, pursuant to notice, at 10:01 a.m., in room 2128, Rayburn House Office Building, Hon. Scott Garrett [chairman of the subcommittee] presiding. Members present: Representatives Garrett, Hurt, Royce, Bachmann, Grimm, Stivers, Fincher, Mulvaney, Hultgren, Wagner; Sherman, Moore, Scott, Himes, Peters, Sewell, and Kildee. Ex officio present: Representatives Hensarling and Waters. Chairman Garrett. Greetings. Good morning. This hearing of the Subcommittee on Capital Markets and Government Sponsored Enterprises is hereby called to order. Today's hearing is entitled, ``Examining the Market Power and Impact of Proxy Advisory Firms.'' I thank our extended panel who are here with us here this morning, and I thank the Members from both sides, as well. We will begin, as we always do, with opening statements, and then look to the panel for your wisdom and input. So at this point, I will yield myself about 9 minutes. I am not sure I will use all of it. With the 2013 proxy season currently in full swing, today's hearing examines the market power impact of proxy advisory firms and, more broadly, whether the proxy system is working for U.S. companies and their shareholders. Every year, investors vote over 600 billion shares through the proxy system to elect boards of directors and take other corporate actions, as well. Therefore, an accurate, efficient, and transparent proxy voting system is important to ensuring that our capital markets remain competitive. While proxy voting can play an important role in promoting good corporate governance and enhancing shareholder values, the current system for distributing proxy materials and voting shares has become so complicated that few outside of the proxy process understand how it actually works, including most retail investors, I would guess. In addition, corporate proxy disclosures have become more voluminous and complex than ever, and the Dodd-Frank Act and SEC rules have significantly expanded the types of issues now subject to shareholder vote. As a result, many institutional investors and investment advisory firms have come to rely exclusively on proxy advisory firms to help them determine how to vote their clients' shares on literally thousands of proxy questions companies pose each and every year. And much like the overreliance on credit rating agencies during the financial crisis, the rise of proxy advisory firms over the last decade is attributable in large part to the unintended consequences of government regulation. Back in 2003, the SEC issued rules requiring mutual funds and their investment advisors to construct policies and procedures reasonably designed to ensure that proxies are voted in their clients' best interest. The next year, however, the SEC staff--rather than the Commission itself--interpreted the rules in a manner that now allows mutual funds and investment advisors to effectively outsource their fiduciary obligation when voting their clients' proxies to supposedly independent proxy advisory firms. What is the result? Well, as a result of the SEC's actions, proxy advisory firms now wield an enormous amount of influence over shareholder voting here in the United States. Two firms in particular you all know--Institutional Shareholder Services (ISS), and Glass, Lewis & Company--account for around 97 percent of the proxy advisory industry. Together, these two firms alone are reported to provide voting recommendations to clients controlling between 25 and 50 percent of the typical mid-cap or large-cap company shares. Studies indicate that ISS and Glass Lewis are able to sway at least 20 to 40 percent of shareholder votes, particularly in high-profile corporate elections. Despite their outside influence, however, proxy advisory firms have no duty to make voting recommendations in the best interest of the shareholders, and they have no financial interest in the companies about which they provide voting advice. It should come as no surprise, then, that proxy advisory firms often make voting recommendations based on one- size-fits-all policies and checklists that fail to take into consideration how voting recommendations affect the actual shareholder value. In fact, proxy advisory firms have increasingly teamed up with others, such as unions and other activist shareholders, to push a variety of social or political or environmental proposals that are generally immaterial to investors and often reduce shareholder value. For example, one recent study found that the stock market reaction to say-on-pay voting recommendations supported by proxy advisors has actually been statistically negative. So by exploiting the proxy system to push special interest agendas, proxy advisory firms and activist shareholders have increased the cost of doing business for many public companies and disincentivized private companies from going public--all without a corresponding benefit to the investor returns. Questions have been raised regarding potential conflicts of interest that proxy advisory firms may face when making voting recommendations, for example, as I alluded to a moment ago, activist shareholders--now some of ISS' and Glass Lewis' biggest clients--which increases the risk that these two firms will favor special interest proposals over those that actually increase or enhance the shareholder values. With all that said, while there may be concerns regarding the manner in which proxy advisory firms operate, proxy advisory firms still serve a valuable role, helping to promote good corporate governance. These firms should not, however, be enshrined as the sole corporate government standard-setters. And finally, to the extent that regulatory changes to the proxy voting system are necessary, these changes should be aimed at improving the transparency and efficiency of proxy voting and, most importantly, enhancing shareholder value. That is, after all, the point of good corporate governance. With that, I will yield back my remaining time, and I now yield 5 minutes to the gentleman from California. Mr. Sherman. Thank you, Mr. Chairman. I want to thank the ranking member of the full committee for asking me to sit in for the ranking member of this subcommittee, who is attending the funeral of our esteemed colleague, Senator Lautenberg; she was a close personal friend of the Senator. We once had a competition in this world between capitalism and communism. The new competition is between free market capitalism on the one hand and crony capitalism on the other. The advocates of crony capitalism say that boards should be in total control of their corporations, a small group of people should control hundreds of billions of dollars, and shareholders should be frozen out of the decision-making process and given as little information as possible, as well as be deprived of any advice that would help them question the inside management. Those who believe in free market capitalism believe that shareholders should be in control of the corporation and they need information, advice, voting, and freedom from frivolous lawsuits. Yet those trying to protect inside power have denied them all of those things. As to information, we are told that shareholders can't know about blood diamonds. They can't know about secret political contributions because they are crazy if they want to make their investment decisions or their proxy decisions based on those decisions. Investors are not only told that they will be deprived of the information to make the decision; they are told they are crazy for even wanting to make that decision. This hearing is about depriving them of the advice. No one in the corporate world has tried to deprive pension plans and investors of all kinds of advice. As a matter of fact, I have never met somebody on Wall Street who wasn't talking to me about how to sell advice to CalPERS. Yet in this one circumstance, all of a sudden they should not be allowed to get the advice they want, as if these are babes in the woods rather than the epitome of sophisticated investors. Then, we see a corporate world that has for many decades united behind the lowest common denominator of shareholder rights and corporate law. The rule is that whatever State can have the most pro-management, anti-shareholder corporate law will attract--will become the home domicile of major corporations. If we cared about shareholders we should be setting the highest possible corporate standards for all--and shareholder rights for all publicly traded companies instead of saying, well, will Delaware or Nevada be the home of those corporations trying to institutionalize crony capitalism? Finally--and this is truly bizarre--the corporate world formed an alliance with plaintiffs' trial lawyers to try to terrorize or prevent pension plans from divesting from Iran and use their corporate power in this very committee to hold up until a few years ago a bill that simply allowed pension plans to divest from those companies investing in Iran, because depriving shareholders of their right to divest and thereby influence management was thought to be an intrusion on the power of boards. It is about time for this committee to come out on the side of free market capitalism, of making sure that shareholders are given the information shareholders want, not called crazy because they care about jobs, the environment, preventing terrorism, or preventing secret political contributions. It is time that those investors get the advice. It is time that they have all the protections that a well-drafted corporate statute can provide. Instead, we are here focusing on the tiny bit of Wall Street advisors that habitually question inside management. That is not the role of this committee. I know it is easier to protect those who currently control corporations and therefore have power here in Washington, but those of us who believe in free market capitalism should be protecting shareholder rights, and that includes shareholders being able to get the advice they want. And no one here is for depriving them of any other kind of advice except to crack down on those who advise them on how to cast their votes to assure that we have jobs, open elections, and try to do something about Iran and other sources of terrorism. With that, I yield back. Chairman Garrett. I am very pleased to hear that the gentleman from California is all about free market capitalism, and I look forward to the hearing today when we look to provide that through transparency and the ending of conflict of interests with regard to proxy advisors. Mr. Sherman. Mr. Chairman, I would like unanimous consent to enter into the record the statement of the Council of Institutional Investors. Chairman Garrett. Without objection, it is so ordered. And I also look forward to the gentleman working with us outside of this issue to end crony capitalism and realign for free market capitalism and GSE reform, as well, so we can be on the same page on these things. With that, I yield to the gentleman from Virginia for 2 minutes. Mr. Hurt. Thank you, Mr. Chairman. Mr. Chairman, thank you for holding today's subcommittee hearing to examine the market power and impact of proxy advisory firms. As proxy advisory firms continue to have an increasingly powerful role in corporate governance, it is important that this committee conduct the proper oversight to ensure that these entities are working within the appropriate framework that leads to best practices in corporate governance. As an enormous market share is controlled by two proxy advisory firms, there must be sufficient transparency and accountability. A lack of these critical elements could lead to poor decisions that neither promote good corporate governance nor increase shareholder value. Additionally, as the SEC has acknowledged, conflicts of interest may arise when proxy advisory firms both provide voting recommendations for shareholder votes and simultaneously offer consulting services to the same company. An appropriate level of oversight, transparency, and accountability will ensure that that investors will be protected and it will strengthen corporate governance. I would like to thank our distinguished witnesses for appearing today before our subcommittee. I look forward to hearing your testimony. Thank you, Mr. Chairman. I yield back the balance of my time. Chairman Garrett. The gentleman yields back the balance of his time--an extra 1 minute. And with that, we look to Mr. Scott for 3 minutes. Mr. Scott. Thank you very much. This is, indeed, an important, important hearing. Two issues certainly matter, I think, very much here: there are reasons why we have Dodd-Frank; and there are reasons why we have responded. From Enron to WorldCom to the 2008 financial crisis to the failure of MF Global, there are numerous examples--notable examples--of failures in corporate governance in recent years. And I am interested in finding out why only two companies handle 97 percent of this market. I think we need to get a good answer to that. Maybe there is a really good answer for it. But certainly, it is a very important question. With the 2013 proxy season under way, this hearing is quite timely, if not overdue. Proxy votes are currently taking place by institutional investors who typically own securities positions in a large number of public companies. These votes taking place are on matters such as director elections, consideration of management and shareholder proposals, and are also relevant to many of the delineated goals, as I stated before, of Dodd-Frank in response to the financial crisis. These can include issues such as: say on pay--which is very important--which is a nonbinding vote on executive compensation practices required under Dodd-Frank; splitting the role of CEO and chairman of the board at a public company; issues regarding employee nondiscrimination policies; or other corporate responsibility measures, including environmental practices. We must also recognize the possibility of, indeed, conflicts of interest, especially in a market as highly concentrated as proxy advisory, with the two largest firms, again as I said, dominating as much as 97 percent of that market--ISS and Glass Lewis. As I said, this is a great concern. Some proxy advisory firms also provide consulting services to issuers on corporate governance or executive compensation. A 2010 SEC concept release also noted the potential of conflicts of interests of such firms and the criticism with regards to lack of accuracy and transparency in firms formulating voting recommendation. Yet, the SEC has not taken further action on this. So as we go forward to address the many regulatory issues raised by the directory of Dodd-Frank, we must balance concerns on behalf of the consumer, the user, our constituents, with the concerns raised by America's public companies, many of whom also are run by our constituents and have stakes in our communities. What policies, for example, or procedures do proxy advisory firms use, if any, to ensure that their recommendations are independent and are not influenced by any consulting fees that they receive from issuers? I think the American public is very interested in this issue today, and I look forward to getting some very good answers to these questions that I have raised. Thank you, Mr. Chairman. Chairman Garrett. The gentleman yields back. Actually, he doesn't yield back; he went over. Is there anyone else? Mr. Scott. Thank you very much and I do yield-- Chairman Garrett. Ms. Moore is recognized for 2 minutes. Ms. Moore. Thank you so much, Mr. Chairman and Mr. Ranking Member, for holding this hearing. I am eager to hear from our witnesses on proxy advisory firms, especially the increasingly important role they play in concentration in the industry. I want to discuss proxy access more conceptually and restate my support for Section 971 of Dodd-Frank. This is an area that has elicited considerable academic work and debate. Speaking to the Practicing Law Institute in 2009, then-SEC Chairman Schapiro said of shareholder access, ``Corporate governance, after all, is about maintaining an appropriate level of accountability to shareholders by directors whom shareholders elect, and by managers who directors elect.'' Chairman Schapiro went on regarding the election of board of directors, ``I believe that the most effective means of promoting accountability in corporations is to make shareholders' votes both meaningful and fully exercised. However, in most cases today shareholders have no choice in whom to vote for.'' Congress agreed, and included Section 971 in Dodd-Frank. The State of Wisconsin Investment Board (SWIB) simply states that SWIB encourages companies to ``establish reasonable conditions and procedures for shareholders to nominate director candidates to the company's proxy and ballot.'' I agree with that. One argument of opponents of Section 971-type proxy rules is that high-quality directors may be less willing to serve on boards if they face competition from shareholder-sponsored candidates. It is a silly and offensive argument. In an age when we tell college kids that they have to compete globally to get a job in corporations, and tell workers that they have to compete to keep their jobs in these corporations, why should directors of the corporations mysteriously be shielded from competition, especially from challenges from the shareholders they should serve? To hear some people tell it, Section 971 aids barbarians at the gate. In reality, it is a measured proposal to enhance corporate governance and accountability. And I yield back. Chairman Garrett. The gentlelady yields back. We now turn to the panel. And again, I welcome the entire panel. Some of you have been here before. For those who have not, you will all be recognized for 5 minutes, and the little lights in front of you will be green when you begin; yellow at one minute remaining; and red when your time us up. Also, your entire written statements will be made a part of the record, so we will look to you to summarize in your 5 minutes. So with that, again, I welcome the panel. And we will turn first to Mr. Pitt representing the U.S. Chamber of Commerce. Welcome to the panel. You are recognized for 5 minutes. STATEMENT OF THE HONORABLE HARVEY L. PITT, FOUNDER AND CHIEF EXECUTIVE OFFICER, KALORAMA PARTNERS, LLC, ON BEHALF OF THE U.S. CHAMBER OF COMMERCE Mr. Pitt. Thank you, Mr. Chairman. It is a pleasure to be back here. Chairman Garrett, Representative Sherman, and members of the subcommittee, I am pleased to participate in these important hearings representing the U.S. Chamber of Commerce to discuss the extensive but unfettered influence that proxy advisory firms currently wield over corporate governance in the United States. As you have requested, I will not repeat the Chamber's detailed written statement. Instead, I would like to briefly highlight 5 points for your consideration. First, effective and transparent corporate governance systems that encourage meaningful shareholder communications are critical if public companies are to thrive. Informed and transparent proxy advice can promote effective corporate governance, but only if transparency exists throughout the proxy advisory process, and the advice provided directly correlates to and is solely motivated by advancing investors' economic interests. Sadly, these two essential components of proxy advice have been lacking for some time. Second, as has already been observed, two firms--ISS and Glass Lewis--control 97 percent of the proxy advisory business and dominate the industry. Together, they effectively can influence nearly 40 percent of the votes cast on corporate proxy issues, making them de facto arbiters of U.S. corporate governance. Third, these firms advocate governance standards to U.S. public companies but they do not practice what they preach. Serious conflicts permeate their activities, posing glaring hazards to shareholder interests. They are powerful but unregulated and they cavalierly refuse to formulate and follow ethical standards of their own, render their advice transparently, accept accountability for advocated standards, and assume responsibility to avoid factual errors and shoulder the burden to rectify the mistakes that they make. This lack of an operable framework for those exercising such a significant impact on our economic growth is wholly unprecedented in our society. Indeed, 2 weeks ago ISS settled serious SEC charges stemming from its failure to establish and enforce appropriate written policies. Fourth, significant economic consequences flow from proxy advisory firms' unfettered power and lack of fidelity to important ethical and fiduciary precepts, something that has been recognized both here and abroad. Although U.S. regulators have not fulfilled promises to address these issues, Canadian and European regulators, among others, are speaking out. Fifth, the answer to these concerns is not more regulation, but rather a collaborative public-private effort to identify core principles and best practices for the proxy advisory industry. In March, the Chamber published best practices and core principles which provides a crucial foundation for successfully delineating standards for the industry to embrace and follow. What is essential is for responsible voices--this subcommittee, the SEC, institutional investors, public companies, and proxy advisory firms--to lend support to the effort to promulgate and apply effective standards. Mr. Chairman, members of the subcommittee, it is my hope and strong recommendation that these hearings result in a serious commitment to achieve those goals. Thank you. [The prepared statement of Mr. Pitt can be found on page 182 of the appendix.] Chairman Garrett. And I thank you for your testimony. Next, from the Center on Executive Compensation, Mr. Bartl. STATEMENT OF TIMOTHY J. BARTL, PRESIDENT, CENTER ON EXECUTIVE COMPENSATION Mr. Bartl. Thank you, Mr. Chairman. Chairman Garrett, Representative Sherman, and members of the subcommittee, my name is Tim Bartl, and on behalf of the Center on Executive Compensation, I am pleased to present our views on this very important topic. My comments today are based in part on our paper, ``A Call for Change in the Proxy Advisory Industry Status Quo,'' and I would ask that a copy of that be submitted for the record. Chairman Garrett. Without objection it is so ordered. Mr. Bartl. By way of background, the Center is a research and advocacy organization. We are a division of HR Policy Association, that represents the senior HR officers of over 340 large companies, and the Center's subscribing members are across industry group of the association. Mr. Chairman, today I would like to focus on four points, if I may: the role of proxy advisory firms; their influence over company votes and practices; the impact, as Chairman Pitt talked about, of conflicts of interest and inaccuracies; and an example of the importance of oversight, both regulatory and legislative, in procuring some of the issues changes we are talking about today. As you have heard both from members of the subcommittee and from Chairman Pitt, proxy advisors fill an important role regarding helping institutional investors fulfill their proxy voting duties, but the speed with which the advisors must analyze proxies leads to a check-the-box mentality driven in part by the desire to present investors with a uniform, condensed version of corporate pay disclosures, even though pay programs are individualized, complex, and lengthy. This can lead to errors, inaccuracies, or questionable characterizations. And in part, the irony is that the regulatory regime effectively makes each issuer responsible, at least in part, for ensuring the accuracy of its proxy advisory firm reports even though the advisors are the experts. This calls into question the legitimacy of the current model. So as we look at the influence that the proxy advisors wield--we heard members of the subcommittee talk about some of the academic research, which is all in our written testimony. But the Center data for the 2013 proxy season gives a good illustration, talking about ISS recommendations against say on pay for S&P 500 companies. If you received an ``against'' recommendation, you got an average of 64 percent support for your say-on-pay vote, compared to about 93 percent if you got a ``for'' recommendation. And despite this influence, proxy advisory firms have no economic interest in the companies for which they are giving the recommendations. As one company told us, ``It feels like we are giving power over the board to a consultant without a horse in the race.'' As we also talk about in our written testimony, proxy advisory firms also influence company pay policies, and when we researched this among our subscribers we found that about 54 percent said that they had changed a pay practice, policy, or plan primarily to meet a proxy advisory firm's standard. Let me talk for just a second about conflicts of interest and inaccuracies or errors. The practice that ISS practices of providing consulting services to corporate issuers on one side while providing impartial--or so-called impartial-- recommendations to issuers and investors on the other is a conflict that we find very troubling because it creates the perception that there is an advantage to taking up the consulting. In addition, the consulting of ISS with investor clients that are shareholder proponents also creates the perception that ISS may favor those resolutions. And we believe that both practices should be prohibited. With respect to inaccuracies, there is an example in our testimony, and I would urge you to take a look at it, with respect to Eagle Bancorp, but about 53 percent of Center and HR Policy members said in the survey that a proxy advisory firm had made one or more mistakes in a final report during our research of this. Mr. Chairman, let me conclude by talking about the sentinel effect of oversight, and this harkens back to 2012. Again, it deals with ISS, the largest firm, which had adopted a new practice--a new methodology for determining peer groups. And the reason that peer groups are important in pay disclosures is the linkage between peers and pay-for-performance. If the peer group is wrong, the connection between pay and performance is likely not to be seen. And when the methodology was put out, about 23 of 45 S&P 500 companies filed supplemental filings with the SEC saying that peer groups were a problem. This gained the attention of the SEC. And even in conversations with investors, they raised the issue and said they were going to raise it with ISS. All of this attention, in conjunction with popular press attention, led by early summer for ISS to say, ``We are going to reexamine this.'' They looked at it, and they changed it. We have even seen some of the salient effect since then on greater engagement with us. And so with that, Mr. Chairman, thanks again for allowing us to testify, and I look forward to answering any questions you may have. [The prepared statement of Mr. Bartl can be found on page 38 of the appendix.] Chairman Garrett. And I thank you for your testimony. Next, Mr. Holch, the executive director of the Shareholders Communications Coalition. You are recognized for 5 minutes. STATEMENT OF NIELS HOLCH, EXECUTIVE DIRECTOR, SHAREHOLDER COMMUNICATIONS COALITION Mr. Holch. Thank you, Mr. Chairman. Chairman Garrett, Representative Sherman, and members of the subcommittee, my name is Niels Holch, and I am the executive director of the Shareholder Communications Coalition. The Coalition is comprised of the Business Roundtable, the National Investor Relations Institute, and the Society of Corporate Secretaries. The Coalition was established in 2005 after the Business Roundtable filed a petition for rulemaking with the SEC, urging the agency to conduct a comprehensive evaluation of the U.S. proxy system. Many of the current SEC shareholder communications and proxy voting rules were adopted more than 25 years ago in 1985 and remain unchanged. These SEC rules were promulgated during a period when most annual meetings were routine and very few matters were contested. They were also developed at a time when technology was not nearly as advanced as it is today. Just for perspective, these SEC rules were adopted when Ronald Reagan was starting his second term of office, the Dow Jones Industrial average was at 1,500 instead of 15,000, and Microsoft was still publishing software using its DOS operating system. After decades of inaction, the SEC began to tackle this problem in July of 2010, when it released for public comment a concept release describing concerns about the current proxy process and discussing possible regulatory solutions. Unfortunately, another 3 years has now passed, and the SEC has not taken any action on its concept release. Let me now provide you with a brief summary of how the current proxy system is structured and why the Coalition believes reforms are essential; 70 to 80 percent of all public company shares in the United States are held in street name, meaning in the name of a broker or a bank rather than its customers, who are referred to as ``beneficial owners.'' Under SEC rules, brokers and banks are responsible for distributing shareholder meeting materials provided by companies to their beneficial owners and processing their proxy voting instructions. Changes in corporate governance practices have accelerated the need for public companies to communicate more frequently and on a more time-sensitive basis with their shareholders. However, this is very difficult to accomplish under a system that is controlled by the brokers and the banks. Additionally, SEC rules classify investors as either ``objecting beneficial owners,'' called OBOs, or ``nonobjecting beneficial owners,'' called NOBOs. The public companies represented by the Coalition have one overriding goal in this area: We want to know who our shareholders are, and we would like to be able to communicate with them directly. For these reasons, the Coalition supports the elimination of the NOBO-OBO classification rule. This would give public companies access to contact information for their beneficial owners and permit direct communications with them. Once public companies have access to shareholder information, they could assume responsibility for distributing proxy materials directly, making the process more efficient and promoting open communications. The proxy voting system also needs to be addressed. Reports in the news media of voting miscounts and delays in determining election results have raised questions about the integrity of the voting process. Proxy voting should be fully transparent and verifiable, starting with a list of eligible voters for a shareholder meeting and ending with the final tabulation of the votes cast at that shareholder meeting. Public companies are also concerned about the role and activities of private firms providing proxy advisory services to institutional investors. Proxy advisory firms should be subject to more robust oversight by the SEC. For example, the current exemption from the proxy rules that these firms enjoy should be conditioned on their meeting certain minimum requirements governing their activities. The SEC should also require registration of all proxy advisory firms under the Investment Advisors Act. Additionally, the SEC and the Department of Labor should review their existing rules and interpretations to make sure that institutional investors are complying with their fiduciary duties by exercising sufficient oversight over their use of proxy advisory services. As noted earlier, it has been more than 25 years since the SEC's shareholder communications and proxy voting rules have been updated. The Coalition urges this subcommittee to request that the SEC turn its attention to addressing the issues raised in its 2010 concept release. Thank you. [The prepared statement of Mr. Holch can be found on page 150 of the appendix.] Chairman Garrett. Thank you. Next, Mr. McCauley, from the Florida State Board of Administration. Welcome. You are recognized for 5 minutes. STATEMENT OF MICHAEL P. McCAULEY, SENIOR OFFICER, INVESTMENT PROGRAMS AND GOVERNANCE, FLORIDA STATE BOARD OF ADMINISTRATION (SBA) Mr. McCauley. Thank you. Chairman Garrett, Representative Sherman, and members of the subcommittee, good morning. I am Michael McCauley, senior officer with the Florida State Board of Administration. I am pleased to appear before you today on behalf of the State Board of Administration. My testimony includes a brief overview of the State Board of Administration and its investment approach followed by a discussion of our proxy voting process and procedures and our use of proxy advisors to assist the SBA in fulfilling its proxy voting obligations. I will also discuss some proposed reforms that will make proxy advisors more transparent to the market and more accountable to their clients. The Florida State Board of Administration, or SBA, manages more than 30 separate investment mandates and trust funds, some established as direct requirements of Florida law and others developed as client-initiated trust arrangements. In total, the Florida SBA manages approximately $170 billion in assets, and under Florida law, the SBA manages the funds under its care according to fiduciary standards similar to those of other public and private pension and retirement plans. The SBA must act in the best interest of the fund beneficiaries. This standard encompasses all activities of the SBA, including the voting of all proxies held in funds under SBA management. In Fiscal Year 2012, the SBA executed votes on thousands of public companies--approaching 10,000; it was approximately 9,500 individual meetings. The SBA makes all proxy voting decisions independently, and to ensure that the SBA meets its fiduciary obligations, it established the Corporate Governance and Proxy Voting Oversight Group, or the Proxy Committee, as one element in an overall enterprise risk management program. SBA voting policies are based both on market experience and balanced academic and industry studies, which aid in the application of specific policy criteria, quantitative thresholds, and other qualitative metrics. During 2012, the SBA issued guidelines for more than 350 typical voting issues and voted at least 80 percent of these issues on a case-by-case basis following a company-specific assessment. To supplement its own proxy voting research, the SBA purchases research and voting advice from several outside firms--principally the leading proxy advisory and corporate governance firms. When making voting decisions, the SBA considers the research and recommendations provided by advisors along with other relevant facts and research, as well as the SBA's own proxy voting guidelines. But the SBA makes voting decisions independently and in what it considers to be the best interests of the beneficiaries of the funds it manages. Proxy advisor and governance research firm recommendations inform but they do not determine how the State Board of Administration votes, and they do not have a disproportionate effect on SBA voting decisions. In Fiscal Year 2012, again, the votes that the SBA executed correlated with the recommendations of one single proxy advisor firm 67 percent of the time. Other historical reviews of SBA voting correlations have shown both lower and higher correlations with individual external proxy advisor recommendations, and that has been dependent on both the time period that was under study as well as the specific voting categories that were in question. While the SBA acknowledges the valuable role that proxy advisors play in providing pensions funds with informative, accurate research on matters that are put before shareowners for a vote, we believe proxy advisory firms should provide clients with substantive rationales for vote recommendations, minimize conflicts of interest, and have appropriate oversight. Toward that end, the SBA believes that proxy advisors should register as investment advisors under the Investment Advisors Act of 1940. Registration would establish important duties and standards of care that proxy advisors must uphold when advising institutional investors. And additionally, the mandatory disclosures would expose conflicts of interest and how they are managed and establish liability for firms that withhold information about such conflicts. Mandatory disclosure should also include material information regarding the process and methodology by which the firms make their recommendations, aimed at allowing all stakeholders to fully understand how an individual proxy advisor develops those voting recommendations. This would make advisor recommendations more valuable to institutional investor clients and more transparent to other market participants, including corporations. In this way, registration would complement the aims of existing securities regulation, which seeks to establish full disclosure of all material information. Thank you, Mr. Chairman, for inviting me to participate in the hearing, and I look forward to the opportunity to answer any questions. [The prepared statement of Mr. McCauley can be found on page 162 of the appendix.] Chairman Garrett. And I thank you. Next, Mr. Morgan, from the National Investors Relations Institute (NIRI). STATEMENT OF JEFFREY D. MORGAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER, NATIONAL INVESTOR RELATIONS INSTITUTE (NIRI) Mr. Morgan. Thank you, Chairman Garrett, Representative Sherman, and members of the subcommittee for holding this hearing and for inviting the National Investor Relations Institute, or NIRI, to participate. My name is Jeff Morgan, and I am president and CEO of NIRI. Founded in 1969, NIRI is the largest professional investor relations association in the world, with more than 3,300 members representing over 1,600 publicly traded companies and $9 trillion in stock market capitalization. My written testimony focuses on the two topics of this hearing: proxy advisors; and improving communications and engagement between public companies and shareholders. I will focus my verbal comments on the communications aspect. An open channel of two-way communications is needed for any business between its owners and its investors. Businesses have an obligation to keep their owners informed on business operations, financial results, and other material information. Owners have an obligation to ensure management is operating within expected guidelines and to offer their input on key decisions. In all cases, I think most would agree that two-way communications is much less effective when each party doesn't know who the other party is. That is the situation with public companies in the United States today and one of the many challenges we have with our capital markets and proxy system as they have evolved over the last several decades. Shareholders know they own stock or equity in a company, but the company has limited ability to know who the shareowners of the company are at any point. Ultimately, better transparency in shareholder ownership would improve the two-way dialogue of companies and shareholders, creating healthier U.S. capital markets. While companies operate under a host of regulations, there are few regulations to allow for shareholder information to be provided to the company to ensure there is a healthy flow of information and dialogue from company to shareholders. One of the few mechanisms is the choice of shareholders to be registered or to hold shares in street name. Registered shareholders are those who directly register with the issuer or publicly traded company, thus enabling the company to know the identity of the shareholder, as well as providing for the free flow of information between the company and the shareholder. Street name shareholders are those who use a broker or bank to hold the shares on their behalf. While the street name shareholder is the beneficial shareholder, there is no direct registration with the company, and consequently, the company doesn't necessarily know the shareholder's identity. Prior to the 1970s, estimates are that approximately 75 to 80 percent of shares were registered and about 20 to 25 percent were held in street name. Today, the opposite is true, with about 80 percent of shares in street name and 20 percent registered with the company. As our capital markets have evolved, companies have lost the direct linkage with their shareholders. The only report that provides some insight for a company into its larger shareholders is SEC filing Form 13F. While not specifically designed to help companies know who their largest shareholders are, Congress established a reporting regime in the late 1970s to provide public reporting by certain larger investment managers of their equity position. Every institutional manager who exercises investment discretion having an aggregate market value of at least $100 million on the last trading day of the month must file a Form 13F. Managers must file these reports with the SEC within 45 days after the last day of each quarter. The practical effect of this rule is that an investment manager may buy shares on January 2nd and not have to report that holding publicly until May 15th, more than 19 weeks after the transaction. This is hardly a productive way for issuers to know their shareholders. Recently, the NYSE, the Society of Corporate Secretaries, and NIRI submitted a petition to the SEC to reduce the reporting delay from 45 days down to 2 days. As part of Dodd- Frank, Congress mandated the SEC consider similar rules for short selling, requiring disclosure every 30 days. So we believe an evaluation of the entire equity ownership disclosure process as part of the evaluation of proxy mechanics and proxy advisors makes sense. With the increasing involvement of shareholders in corporate governance matters, it is clear that improvements to our system for linking shareholders and companies are needed. Public companies would welcome it, and this would dramatically increase the ability of companies to engage with shareholders. Action in this area, combined with an examination of our 20-plus-year-old proxy system, including a focus on the proxy advisory service area, would go a long way to enhancing our proxy and shareholder communications process in the United States. In conclusion, thank you for the opportunity to testify, and I look forward to your questions. [The prepared statement of Mr. Morgan can be found on page 169 of the appendix.] Chairman Garrett. And I thank you for your testimony. Next up, from the Society of Corporate Secretaries & Governance Professionals, Ms. Stuckey is recognized for 5 minutes. STATEMENT OF DARLA C. STUCKEY, SENIOR VICE PRESIDENT, POLICY & ADVOCACY, SOCIETY OF CORPORATE SECRETARIES & GOVERNANCE PROFESSIONALS Ms. Stuckey. Thank you, Chairman Garrett, Representative Sherman, and members of the subcommittee. I am Darla Stuckey, senior vice president at the Society of Corporate Secretaries & Governance Professionals. We have 3,100 members representing about 1,200 public companies and about over half of those are small-and mid-caps. Reading proxy statements is time-consuming. Few investment managers will allocate capital to voting decisions that they believe will not generate a return on investment. In short, proxy voting, other than in a ``bet the farm'' type scenario, is simply not worth the cost. So outsourcing to proxy advisory firms is pragmatic, but many investors use their reports like CliffsNotes: They read the summary report but not the proxy. Some don't even read the report; they just take the vote recommendation automatically. But proxy statements are subject to full 1934 Act liability and are filed with the SEC. Proxy advisory firm reports are not, but should be. My testimony will cover the proxy advisory firm influence and problems we have with their policies, conflicts, and errors. Due to the sheer volume of companies, proxy firm reports are based on one-size-fits-all policies. This is a problem simply because companies are not the same. Voting decisions and routine elections are even more important now than they have been with the advent of say-on-pay and majority vote for directors. Companies of all sizes now must navigate proxy advisory firm policies and guidelines. As you have heard, they control at least 20 percent and maybe upwards of 40 percent of the vote. This is much larger than the Schedule 13D threshold and even larger than the 10 percent affiliate status threshold, both of which require public reporting. In 2009 and 2010, IBM stated that the voting block that ISS controlled had more influence than its largest shareholder. This is the case even though the proxy advisory firms have no economic stake in the company and have not made meaningful disclosure about their power, conflicts of interests, or controls. Proxy firm voting policies are also not transparent. We don't know how they are developed. Although ISS provides both issuers and investors with an opportunity to take their survey, the questions are often skewed and biased towards a narrow agenda. We don't know if the issuer's voice counts, and the number of institutions who take the survey is very small. ISS reported 201 responses in 2010, representing only 15 percent of its institutional clients--even fewer since. So consider that 15 percent of ISS' clients create policies that influence as much as 20 percent of the vote of every public company. They also influence corporate behavior. Just the threat of an ``against'' vote causes boards to change their practices to satisfy the one-size-fits-all guidelines. ``What will ISS say?'' is regularly asked in the board rooms. Proxy advisory firms are also subject to conflicts, which you have heard, and which are discussed in my written testimony. I will explain one. Here is the story: One company member received a call from a sales representative from Equilar, a company working with Glass Lewis, 2 days after Glass Lewis recommended against their say-on-pay proposal. The rep wanted to sell the company a service that would shed light on the recommendation. The society member asked about the basis for the CEO compensation number that had been used because its CEO had changed in 2012 and it looked like Glass Lewis had used a composite of the former CEO's compensation and the new CEO comp. But even still, the number was 45 percent higher than what was in the summary comp table. The member asked for an explanation, but the sales representative was unwilling to discuss it unless the company subscribed to their service, which was about $30,000. Indeed. And lack of access to reports is at the heart of the larger problem of mistakes. Until recently, a company could get its Glass Lewis report from its proxy solicitor or a law firm, but no longer. Instead, Glass Lewis will sell issuers a copy of the report for $5,000 or they can buy the $30,000 service I mentioned. So if an issuer wants to see the facts given to its investors, their only choice is to pay for the report. At the very least, proxy recommendation reports should be provided to all issuers in advance of publication, free of charge, to enable the issuer to check the factual accuracy of the report, because votes that are not based on facts are not informed votes and we don't believe an institution can satisfy its fiduciary duties by relying on something that is not accurate or that it doesn't know is accurate. Other problems: Aside from conflicts, the reports can contain mistakes. One example relates to ISS' peer group selection methodology. A small-cap member wrote to me yesterday--somebody with no access to the report in advance-- telling us that last week, ISS also recommended against its say-on-pay proposal. Here is what he described: The ISS peer group bears almost no relationship to our industry. We are an e-mail data security company. We sell B-to-B. They have designated as peers consumer-oriented online media companies, personal dating sites, online games, et cetera, that have nothing to do with our industry. We don't compete with these companies for talent and we have been consistently profitable for the measurement period, whereas most of the companies to which they compare us have not been. In sum, both investment advisors and proxy advisory firms must have an obligation to ensure that vote recommendations are based on accurate facts and are in the best economic interests of the shareholders. Thank you. [The prepared statement of Ms. Stuckey can be found on page 222 of the appendix.] Chairman Garrett. Thank you. And having the final word on the topic--well, maybe not-- Mr. Turner, you are recognized for 5 minutes. STATEMENT OF LYNN E. TURNER, MANAGING DIRECTOR, LITINOMICS Mr. Turner. Thank you, Chairman Garrett. It is indeed an honor to be invited back again to testify before the committee, and I would like to thank you and Representative Sherman. I would like to make a few key points today, and my points will be based upon my past experience: I have been a member of the corporate boards of public companies which were subject to the recommendations of the proxy voting firms; I have been on the board of two institutional investors who did the proxy voting; I have been a financial executive, vice president, in a large international semiconductor company; I was a former regulator at the SEC; and I also was a senior executive and head of research at Glass Lewis during its initial formative years, from 2003 to 2007. First, let me note that proxy voting is an important right to the owners of public companies. Proxy voting provides investors with a very useful market-based mechanism with which to establish the accountability of both the board of directors and management, which is what makes our capital market system work. Second, many investors and their asset managers take this responsibility very seriously. If you look at the Web sites of the largest public pension funds and the 15 largest money managers, such as Fidelity, Vanguard, and Blackrock, you will find they all have their own custom designed proxy voting guidelines, as well as staff dedicated to proxy voting. These custom guidelines are similar at times to those of the two proxy advisory firms on issues, but this is because investors do have some common views on what is good governance in the corporate community. Third, asset managers may buy research from the proxy voting services to gather useful information and assist with their analysis of the issues. However, it is not uncommon that they will vote differently than ISS or Glass Lewis and their recommendations and often vote with management. And certainly, one would think that buying of such research to add to one's available information about the issue should not be criticized in the context of trying to be fully informed about an issue. Fourth, in today's global markets an investor asset manager is going to invest in dozens of capital markets around the globe. At COPERA, we invest in 7,000 to 8,000 companies. A proxy advisory firm like Glass Lewis or ISS may issue recommendations on 20,000 to 40,000 proxies a year around the globe. Clearly, the mutual funds and the pension funds don't have the staff to go through all of those. It would be cost- prohibitive. It would take well over 100 staff, I believe, based on my experience, to read each of those in depth, do the analysis, and vote the 8,000 proxies in a global marketplace. If you had to add those staff to your pension fund or your mutual fund, it would drive up the cost to investors significantly and reduce their returns. I doubt people want to do that. Fifth, there is a significant amount of transparency today when it comes to proxy voting. ISS, to their credit, goes through a phenomenal public comment process, not dissimilar from what the Federal regulators here in this government do. They post their guidelines to their Web site; they talk about their methodologies on their Web site. Most proxy and pension funds also post their proxy voting guidelines, as I have previously mentioned. Sixth, pension and mutual funds do not view their proxy voting guidelines as rigid documents. Quite often, when the circumstances are appropriate, we will turn around and vote differently than their guidelines. It is not a one-size-fit- all, as some would argue. Seventh, if there is a bias in proxy voting it is, in fact, towards management. In 2002 at PERA, we voted with management about 86 percent of the time. Even on shareholder proposals, we still voted with management about 60 percent of the time. And I think in the statement by the Council of Institutional Investors, and the statement you heard from Florida, they also indicated a bias towards management. In fact, on the say-on-pay proposals so far to date this year, there have been approximately 2,473 votes, and only 31 have failed; less than 2 percent have failed. When I was going to college, I would have signed up quickly for any class where you had a 98.5 percent passing rate. This is not way out of the mark. Eighth and finally, I will just say that there are about 100 proxy voting contests each year that get a lot of attention. It is typically because of a lack of performance, if you looked at the recent example on Hewlett Packard, for example--very contested, a lot of visibility in the media. In that case, Hewlett Packard had been underperforming in the market, had lost over $30 billion in market share, had turned around and had negative performance in excess of 20 percent over the previous 5 years, and was in the lower quartile in their industry during that time period. That is what causes the disputes on the proxy voting. Thank you, and I would be happy to answer any questions. [The prepared statement of Mr. Turner can be found on page 345 of the appendix.] Chairman Garrett. Great. Thank you. So again, I appreciate the panel's testimony, and we will now go to questioning. I will try to run down the list in 5 minutes. Chairman Pitt, in your written testimony you didn't exactly say, you inferred, that the Egan-Jones no-action letter is one of the main reasons that the largest proxy firms--we just basically have two of them, a duopoly at this point. So for all practical purposes, is it correct to say that the decision by the SEC--and that was done by the staff, correct, not by the Commission--has eliminated any fiduciary responsibility for the actual mutual funds themselves and the investment advisors? Mr. Pitt. I think it is correct to say that those letters have enabled institutional investors to sidestep their fiduciary obligations instead of actually fulfilling them themselves. Chairman Garrett. Right. And if they had a fiduciary responsibility--just to lay this out clearly--that responsibility would be to whom? Mr. Pitt. That is correct. They have-- Chairman Garrett. To whom would it be if they had a fiduciary responsibility? Who were you talking about? To the investor? Mr. Pitt. They do have clear fiduciary responsibilities. Chairman Garrett. If those letters basically obviated, eliminated, diminished the fiduciary responsibility by the mutual fund or the investment advisor to the little investor out there, let's see, did it shift that responsibility someplace else? Does the proxy advisor now have that fiduciary responsibility to the investor? Mr. Pitt. No. The fiduciary duties still remain with institutional investors. They cannot divest themselves of their fiduciary obligations. What the no-action letters do is provide a vehicle for them to outsource the exercise of-- Chairman Garrett. Right. So basically, it says it satisfied the responsibility by going to a proxy advisor. Mr. Pitt. That is correct. Chairman Garrett. Right. Does the proxy advisor--if I am the little investor, does the proxy advisor now have a fiduciary duty to me, because I can't go back to the mutual fund? Mr. Pitt. I believe that they do not have the same fiduciary duties that the institutional investors have because the institutional investors owe their fiduciary duties to the shareholders in those institutions. Proxy advisory firms-- Chairman Garrett. Right. Mr. Pitt. --do have clear obligations of truthfulness and the like, and those are akin to fiduciary duties, but they are not the same fiduciary duties. Chairman Garrett. Someone on the panel--I don't think it was you--made reference to the idea of just making them responsible as an investment advisor. Would that solve the problem? Mr. Bartl. Yes. I don't think that was me, but-- Chairman Garrett. No, it wasn't. But would that solve the problem? Because you were the one who said-- Mr. Bartl. In terms of registration as an investment advisor, because of the services that proxy advisors provide, it in and of itself is not going to put them in the shoes of investors because they are in sort of a quasi-role between analyzing company plans and giving advice to investors. It is almost a different animal altogether. Chairman Garrett. Right. You did point out, though, that they basically just don't have, as you put it colloquially, a ``horse in the race,'' so they don't have that interest in it. But you also raised also another potential conflict, which is interesting, with regard to the advice that they actually sell to the firms as well, which puts them into an additional conflict situation. Mr. Bartl. Yes. And the interesting part here is that the companies still perceive that there is an advantage, and when proxy advisors provide advice on one side of the house and the other side of the house is giving the rating, regardless of whatever disclaimers are made--in fact, ISS even says, ``Don't tell us by contract--don't tell us that you talked to our consulting side if you come to the research side to tell us about your proxy''--it is a bit of a kangaroo court. The-- Chairman Garrett. Let me just break, because I only have 30 seconds here--I appreciate your kangaroo court opinion. Ms. Stuckey and Mr. McCauley--Ms. Stuckey, you sort of say that the one-size-fits-all does not work for these, and Mr. McCauley sort of indicates that is true in the sense that 67 percent of the firms don't rely upon them exclusively for the advisors. And yet some firms rely on them exclusively. Is that right, Ms. Stuckey? Ms. Stuckey. That is right. There is even a recommendation- only service that some investors can buy where they don't even get the reports at all because they don't have time to read them. It is really the lowest common denominator; it is like a compliance obligation on behalf of many smaller investors--not Mr. McCauley. Chairman Garrett. Right. Just checking the box. I appreciate that. And my time has expired. I now recognize the gentleman from California. Mr. Sherman. Mr. Turner, I want to thank you for pointing out that the same proxy advisory firm could tell two different clients a recommendation to vote in different ways just because they are given different criteria and they correspond to that criteria, just as a beer advisor might advise me to buy one beer because it tastes great and advise him to buy a different beer because it is less filling. In California, we do everything by referendum. In effect, every voter gets a proxy statement from the California Secretary of State; it is paid for by the corporation, that is, the State government legislature puts various referendum on the ballot. And the opponents get as much space in that book as the proponents of those referendum. Few Democrats and, I assure you, many fewer Republicans would advocate that only the management of the California legislature be allowed space in that proxy statement. If anybody wants to draw an analogy to the corporate world, they are welcome to do so. Ms. Stuckey, if someone was listening perhaps not as closely as they should have to your testimony, they would have thought you were advocating that these recommendations all be filed with the SEC where they would be public. That would mean that everybody who wanted to see these reports could see them for free and that would, of course, abolish the proxy advising industry. I have a series of questions I want to ask everybody-- Ms. Stuckey. May I respond to that? Mr. Sherman. No, because I am sure you didn't mean to do that. I just want to caution those who might not have listened carefully enough to your testimony. I want to go on. We are here to talk about shareholder rights. Mr. Turner, you are representing yourself, but everybody else here is representing an organization, so I would ask them to respond as to official positions of their organization. Please raise your hand if the folks you represent have taken a position in favor of requiring cumulative voting for all corporations publicly listed. Only Mr. McCauley's hand goes up. How many of your organizations have taken a position in favor of information being in the proxy statement about $1 million-plus political expenditures? No hands go up. We have a circumstance where you may have a management and a board that is just doing a terrible job, and yet it takes 3 years to vote on the board because only one-third of the board is up every election. How many of your organizations have taken a position in favor of allowing the entire board to be replaced within 365 days? Mr. McCauley raises his hand; no one else raises their hand. As I alluded to before--and I know that we would have to-- if we wanted a statute on this, we would have to package it a different way to pass the courts, but there are those who think that if 5 percent of the shareholders want to put forward a proposal or an argument to vote for a particularly different slate of directors, that they should be able to use corporate money to do that just as the corporate management does. How many of you favor a proposal along those lines? Mr. McCauley raises his hand--thank you very much--for the record. Mr. Pitt, I heard you say that the proxy advisor had an obligation to advise the investors based upon their economic interest. Do I have that right? Mr. Pitt. To further the economic interests of investors, yes. Mr. Sherman. Okay. So let's say I want to invest not for rate of return but I want to invest in companies that will build a strong manufacturing base in the United States even if that gives me a lower rate of return. Should it be illegal for me to find a proxy advisor who will help me achieve that objective through my votes in the companies I already own? Mr. Pitt. Absolutely not. Mr. Sherman. So we should have investment advisors who give advice based on something other than the economic interest of the investor. Mr. Pitt. I think your point is that the advice should be tailored to the interests of investors, and I quite agree with that. Mr. Sherman. Okay. Should a pension plan management be subject to lawsuits alleging that they have breached their fiduciary duty simply because they chose to invest or vote based on what they thought was good environmental policy or good antiterrorism policy? Mr. Pitt. If they are subject, for example, to ERISA, yes. Mr. Sherman. Did your organization support legislation that would allow pension plans to divest from those companies investing in Iran? Mr. Pitt. I am sorry, to invest on what? Mr. Sherman. To divest from those companies investing in Iran. Did you support or oppose that legislation? Mr. Pitt. No. Mr. Sherman. You did not support or oppose? Mr. Pitt. I'm sorry. I know I am-- Mr. Sherman. Okay. There was legislation before this committee--finally passed years too late--over the under-the- table opposition of the organization you are representing that would simply allow Mr. McCauley to divest from companies giving money to the ayatollahs in Iran without facing lawsuits, and I wondered if that was still your position. Mr. Pitt. I don't believe that the Chamber opposed that legislation. Mr. Sherman. There was a reason it didn't pass until long after it should have. I yield back. Chairman Garrett. The gentleman yields back. The gentleman from Virginia? Mr. Hurt. Thank you, Mr. Chairman. I do have a couple of questions for the panel. I did want to allow Ms. Stuckey the opportunity to respond to what the gentleman from California alleged in his question. I just wanted to give you a moment to respond, if you would like? Ms. Stuckey. I would just like to say that we are not advocating these proxy advisory firms be put out of business. We believe they have every right to exist. But yes, I did say that we would like their reports filed and they could be filed after the fact. We don't want them to give away their competitive information, but we do think that having the reports filed will make them think harder about what they are doing and making sure they get it right. Mr. Hurt. Thank you. I guess, let's start with Mr. Pitt on this question: Obviously, the SEC has the responsibility to encourage capital formation, investor protection, and fair and efficient markets, and to that extent, Congress has that responsibility, I think, to encourage policies that do encourage capital formation and encourage that formation to take place in our public markets that have served us well, I think, since the founding of our country. And so to that extent, it seems that this is an important issue that results or has consequences for those three objectives of the SEC. You said in your statement, I believe, that you don't think these issues necessarily require more government regulation, but I would like to know what specifically we or the SEC should be doing to solve the conflict of interest problem and, perhaps, the misalignment of fiduciary duties? If you could just address that, and then I would like to hear from Mr. Bartl and Mr. Holch. Mr. Pitt. Yes. I think first and foremost what the Chamber has done is published best practices and core principles. It would be very constructive if this subcommittee encouraged all of the participants to engage in a good faith, meaningful dialogue on those principles, and to come up with a consensus view on the ways in which this industry should be performing and should practice, and I think if that occurs, there may never be a need for formal regulation. If that doesn't work, obviously this subcommittee should consider additional steps. But until that dialogue begins, there is clearly no predicate made for a regulatory solution. Mr. Hurt. Okay. Mr. Bartl? Mr. Bartl. Yes. Thank you, Vice Chairman Hurt. I think one aspect--and I talked about it in my testimony-- but is persistent and ongoing oversight in conjunction with maybe the development of best practices because those that are overseen by the SEC and by this body tend to pay more attention, and we saw that in my peer group example. The other thing is that regulation may have the effect of entrenching the existing participants in the system, and there was actually another player in this space until 2 years ago, Proxy Governance, and one of the things they commented on was the ability of the larger players in this space to basically wipe them out economically. So if we are looking for greater competition, as Mr. Scott talked about, that is one thing to keep in mind here. Mr. Hurt. Thank you. Mr. Holch. Congressman, the Coalition is for regulation here--not something of Dodd-Frank complexity, but what I would call light touch regulation. We do believe that we will need some ability to regulate in order to solve these problems. We are not opposed to best practices as an approach, but we do believe that these-- Mr. Hurt. What are the specifics of-- Mr. Holch. Sure. ISS, for example, is already registered as an investment advisor, but the Investment Advisors Act--the current framework really doesn't apply to their role. Their role is very unique. They are not selecting investments for their clients; they are providing advice on proxy voting. And so we think the SEC should create a unique regulatory framework that reflects their role using their authority under the Investment Advisors Act: first, we would be for registration; second, we also think that unique framework should address some of these transparency problems that we have identified, address the factual inaccuracy issue that we have also talked about; and third, we do think both the SEC and the Department of Labor should evaluate their fiduciary duty rules and interpretations regarding investment advisors just to clarify and to make sure that these investment advisors are providing the proper oversight. Mr. Hurt. Thank you. Chairman Garrett. I thank the gentleman. The gentlelady is recognized for 5 minutes. Ms. Moore. Thank you so much, Mr. Chairman. Before I start my questioning, I would like to ask unanimous consent to enter into the record the testimony of Sean Egan, chief executive officer of the Egan-Jones Rating Company. It has been mentioned here. Chairman Garrett. Yes. Without objection, it is so ordered. And since you are doing that, I will use this time also to enter into the record a-- Ms. Moore. You are using my time-- Chairman Garrett. No, I won't be using your--oh, your time is-- Ms. Moore. Right. Chairman Garrett. [Off mike.] Ms. Moore. Right, right. So get that clock back--my 25 seconds. Chairman Garrett. I wasn't going to use your time. I agree to just entering testimony into the record. Ms. Moore. Okay. You are running the hearing. You can do it, but-- Chairman Garrett. We are going to reset you to 5 minutes; and we are going to put the June 4th letter from the Mutual Fund Directors Forum into the record, as well. Without objection, it is so ordered. And the gentlelady's time is set back to the original 5 minutes. I will even throw another 10 seconds on-- Ms. Moore. Thank you so much, Mr. Chairman. I just want to start out by thanking the panel for coming. This is a very, very interesting conversation. I think that I heard some really broad agreement here, some things that we need to think about whether or not the SEC ought to regulate this industry more adequately. I think we did hear some agreement--perhaps not from Ms. Stuckey; I am going to ask her some more questions--about the value of having these rating companies do the intense research that they have done. And so with that, let me start out by asking Mr. Pitt-- Honorable Mr. Pitt, I found it very interesting in your testimony that you said these rating companies didn't have a horse in the race, or skin in the game, so to speak, and so I was wondering whether or not you thought that--and since another objection that many people have is that there are often conflicts of interest, I was wondering if you didn't think that by them not having a horse in the race, their information might be more objective and it might be as a service? Mr. Pitt. I don't believe that affects their objectivity. Glass Lewis, for example, has a parent that is an activist investor and Glass Lewis takes positions on their positions. ISS takes positions with respect to companies that also purchase corporate governance services from them, so-- Ms. Moore. Okay. Okay, thank you. That is good information. Do you think regulation would change that? Mr. Pitt. I think best practices and adopting fiduciary standards would help. Ms. Moore. Okay. Thank you for that. Ms. Stuckey, I was very interested in your--everybody else seemed to think that these companies did bring something to the table, and maybe you clarified it a little bit when you were given time to say that you don't think they should be out of business, but you say that they produce a product and the--sort of the cost-benefit is not realized. I guess I wanted to hear just a little bit--a few seconds--about whether or not you thought they brought any useful information to the table. Often, companies internally cannot afford to do all this research that they need in order to make good investment advice, so I wanted you to clarify that for us. Ms. Stuckey. We are companies. We like our shareholders. Our shareholders tell us they need this type of information from the marketplace. We don't have a problem with that. Ms. Moore. Okay, good. I-- Ms. Stuckey. We don't have a problem with that. What we have a problem with, though, is when we write a 100-page proxy according to the SEC rules and then the services take the proxy and they use junior people, perhaps--they use people who they-- they are trying to make money so they use maybe people who don't really understand these things--they are complicated, they come up with a summary report which then gets sent to the investors--not all investors, but a lot of them--and they don't have time to read our proxy-- Ms. Moore. I understand. Mr. Turner, I am going to let you have the last word on this. You mentioned something that hasn't come up previously in questioning about the board of directors' lack of access to the ballot, and how it disadvantages certain types of proxy voters like labor unions. So I want you to talk about that, and also I want you to respond to the whole skin in the game and cost- benefit points that have been made. Mr. Turner. I do think having access to the proxy is extremely important for investors. At our pension fund, which represents half a million investors, the fund has voted to support proxy access, so we are a strong proponent of that, as many of the funds are. As far as the cost-benefit here, first of all, it is not just junior staff who are preparing these things. That is a misnomer; that is a myth that needs to be busted wide apart. Those things are reviewed by senior people on up. It is just the same as an audit firm does when they do an audit. Junior staff do a lot of the work. Congressman Sherman knows this very well. But before that product goes out, senior people up the level do review it, so they are credible. And in fact, I have found in using their reports that most of the time, they are credible. If you are going to do 40,000 reports a year, are there going to be some misses? Yes. But for the most part, they are well done. And the benefit of that to the investing public is immense because you usually get--in our case, we even get not only one research report, we get a couple of pieces of information that supplements what we do as our people do read the proxies at the PERA board, and it does provide a number of different viewpoints, which is the best way to become a well-informed voter. So I think the system does work. I actually do agree, I would do some form of registration and take care of the conflicts, but for the most part, the system is much better than what some would say. Ms. Moore. Thank you. Chairman Garrett. I thank the gentlelady, and I thank the gentleman. The gentlelady, Mrs. Wagner, is recognized for 5 minutes. Mrs. Wagner. Thank you, Mr. Chairman. And I would like to thank the witnesses for being here today. Mr. Morgan, I want to focus specifically on retail investors and how the proxy process is working or not working for them specifically. In your opinion, do you feel that the proxy process is easy for the average retail investor to understand? Mr. Morgan. Thank you for the question, because they are the missing piece in all of this. Mrs. Wagner. I agree. Mr. Morgan. Retail investors do not have access to the-- because they don't pay the fees to proxy advisors. Most of them are not registered with the company; they are in street name. So they come through a proxy process and there is not a lot of communication. They get their proxy. As Darla said, it is 100 pages. They look at it, they are confused. Many of them don't vote. Retail voter accounts that vote is about 14 percent. It is terrible. We just don't have the retail shareholders engaged, and I--part of the changes to a proxy system would hopefully address that to allow them to become reengaged in the process-- Mrs. Wagner. Let me get to that. So you do believe that it is the complexity, I guess, of the proxy process that has led to a lower level of retail investors' participation? Mr. Morgan. I would say it is the complexity as well as we are legally required to provide these proxies, and in order to meet all the requirements; they are very dense. So it makes it very difficult for a retail shareholder who isn't engaged in this to understand them. Mrs. Wagner. Then what steps can we take to simplify the proxy statements so that the information could actually be meaningful to retail investors? Mr. Morgan. I think part of it is when we tell investors something, let's tell them once, and put all this information out there so it is easily understandable. I think looking at the system, as we have talked about, registered shareholders versus those in street name, we need to look at the process and try to bring it back to how it was to where there is more dialogue and engagement so they feel more informed when they are making their decisions and feel more empowered. Mrs. Wagner. So then the complexity, would you say, of the proxy system has caused almost an overreliance on proxy advisory firms at the expense of retail investors? Mr. Morgan. I wouldn't necessarily say that. I would say that retail shareholders are on their own, and by being on their own they don't have the tools that institutional investors do. Mrs. Wagner. All right. Let me focus with Chairman Pitt, please, if I could. There are thousands of public companies that had nothing to do with the financial crisis of 2008, yet a number of these companies have been targeted by activist shareholders in recent years. Dodd-Frank was passed as a supposed antidote to the financial crisis, but how has Dodd-Frank encouraged some of these activist shareholders to promote their agendas at nonfinancial companies? Mr. Pitt. It has in many ways. For example, it undertook to Federalize a large portion of corporate governance, which heretofore has been the province of State law. That in itself has been a very troubling development as part of the legislation. It then takes issues that are perhaps important but that don't affect the material outcome of a company's behavior, such as conflict minerals-- Mrs. Wagner. Right. Mr. Pitt. --doing business in certain countries, and it has now encouraged people to use corporate disclosure documents for purposes other than informing investors. Mrs. Wagner. I think you are quite right. I want to also ask about what was in your testimony regarding Section 951 of Dodd-Frank, the so-called say-on-pay provision. Why do you feel that ISS and Glass Lewis decided that these say-on-pay votes should be held yearly as opposed to every 2 years or even every 3 years? Mr. Pitt. The problem with this is Congress, in its wisdom--and it was wisdom--gave companies and shareholders a choice of 1, 2, or 3 years. But ISS and Glass Lewis adopted a one-size-fits-all position and have effectively been able to mandate that all corporations do this on a yearly basis. This is expensive and it doesn't produce any value for shareholders, and there are studies that say it actually has acted to the detriment of shareholders. Mrs. Wagner. All right. Thank you. Mr. Chairman, I think I will yield back my time since it is waning. Thank you very much. Chairman Garrett. If she yields it to me, I will just ask this question to Mr. Morgan: Glass Lewis is owned by the Ontario Teachers Fund, correct? Mr. Morgan. Correct. Chairman Garrett. So where are the retail investors who are looking to being protected in that situation? Who is Glass Lewis actually responsible to, their owner or the retail investors? Mr. Morgan. They are, as an institutional investor those institutional investors represent those individuals, so there is an intermediary there. So we were talking two different things. One is the direct-- Chairman Garrett. Understood. But is there a potential for conflict when you have a proxy advisor being owned by a-- Mr. Morgan. Oh, absolutely. It is a huge potential conflict. Chairman Garrett. Thank you. With that, I yield to Mr. Scott for 5 minutes. Mr. Scott. Thank you, Mr. Chairman. Like to continue a line of questioning from my colleague who mentioned about the say on pay. It is good for us sometimes to be able to look around corners to see what is coming, and there is a gathering storm that is coming at us, and it is this huge gap in pay. We dance around it. But I want to ask you, because--and I mentioned the question about just having 2 firms control 97 percent of the market, and let me just give you a glaring point on why this compensation issue and perhaps this almost monopoly with two companies might have something. Last year, proxy advisor firm Glass Lewis urged votes against management on their pay and compensation 17 percent of the time. ISS urged votes against their management on their compensation pay 14 percent of the time. But yet, 98 percent of U.S. companies got the majority of support on their compensation plans last year. And I am wondering, at what point are we going to begin to realize that this cannot continue? We are a mass consumption economy, which means our success hinges on many, many people being able to buy many, many things. And so, the credibility is at stake. It is these people who invest in the market--in their pensions, in their retirements. I am wondering, and I would like to ask--perhaps Mr. McCauley or Mr. Pitt or Mr. Turner may have touched upon some of this--either of you, what must we do about this? Why is it that, one, we have just 2 companies controlling 97 percent of this, and does this have anything to do with why we are not getting the kind of response to taking a very jaundiced eye look at the seriousness of this huge gap on compensation between the top and the middle and the bottom and the impending damage that it could do to our economy? Mr. Pitt. The reason I think we only have two companies is because of the government policies that have existed, and I would urge you to consider an analogy. We saw the exact same thing with credit rating agencies before the 2007 and 2008 meltdown, where competition based on government policies was reduced and restricted. And as one of the panelists indicated, new entrants into this field have found it impossible and have been unable to compete. So one problem is that there is no facilitation of competition here. The issue you raise about compensation, in my view, is a very serious one. I start from the premise that people should be rewarded for performance, not for having a pulse. And so when compensation comes up, it is absolutely crucial for companies to do the due diligence that is required to set what standards they want and then to develop metrics to measure whether senior executives have actually met those metrics. Although the SEC has tried to promote better disclosure, the real problem is that many companies today simply cannot get their arms around the process of setting compensation. The one place where I have a concern, however, is that I don't think it is the appropriate role for government to try and figure out what is good compensation or appropriate compensation. But I do agree with you: The bigger the disparity, the more potential problems we will have, and it is up to companies to do the discipline and then make appropriate disclosures of what they have done. Mr. Scott. I thank you. Chairman Garrett. Mr. Hultgren is recognized for 5 minutes. Mr. Hultgren. Thank you, Mr. Chairman. Thank you all for being here. Chairman Pitt, wonder if I could address some questions to you. Can you describe how the SEC's regulation of proxy voting--specifically the 2003 rules governing institutional investors' fiduciary obligation to clients when voting client proxies and also the 2004 no-action letters--contributed to the rising influence of proxy advisory firms over the last decade? And also, how is this scenario similar to the SEC's rule mandating the use of credit rating agencies? Mr. Pitt. Yes. In 2003--and I was Chairman at the time--the Commission adopted rules which said that registered investment advisors should disclose how they--what policies they apply in voting proxies, and then at some point after a vote was taken disclose how they voted so people could see whether the policies aligned. And the theory was, these shares belong to the investors not to the managers, and therefore there at least ought to be policies with respect to that. What happened thereafter was that the SEC staff issued two no-action letters, which effectively permitted registered investment advisors to obviate their own responsibilities with respect to voting and instead rely on proxy advisory firms as a general proposition to eliminate potential conflicts that any investment manager might have with a particular company situation. The no-action letters were unique in that instead of responding the way most no-action letters do, as you would write in, for example, to the SEC and say, ``Here is what I am planning to do. Can I do this?'' And the SEC would say, ``Yes, you can do it, based on the facts we know. We won't bring any action.'' These no-action letters effectively amended the SEC's rules without any action by the Commissioners. What this did was create an impetus in favor of the two largest firms and the existing firms and made it easier for them to sell their services based on the fact that there was no requirement for investment managers to look to their own conflicts of interest if their policy was to solicit and get advice from these third party persons. With respect to credit rating agencies, the SEC had provisions--and I was astounded to learn this when I got back there--that established nationally recognized credit rating agencies and then made it impossible for other entrants to compete. And the result was that you had an oligopoly and a lack of real standards. Mr. Hultgren. You kind of touched on this, but Chairman Pitt, by allowing mutual funds and investment advisors to outsource that fiduciary duty to act in their client's best interest when voting their proxies to proxy advisory firms has the SEC effectively decoupled the voting decision from the fiduciary duty? Mr. Pitt. I am sorry. Has the SEC-- Mr. Hultgren. Effectively decoupled the voting decision from the fiduciary duty? Mr. Pitt. I think that is a fair statement. Mr. Hultgren. Taking this a little further, should mutual funds and investment advisors be allowed to outsource that fiduciary duty to proxy advisory firms in your opinion or in the thoughts of the Chamber? And what reforms--I know you have talked about some of these in your statement, but what reforms need to be made to ensure that proxy advisory firms are making recommendations that enhance shareholder value? Mr. Pitt. Let me say first that the Chamber is studying this issue. I can answer for myself, and my view is that outsourcing of fiduciary responsibilities breaches the whole concept of fiduciary duty, so I believe that the answer has to be yes, you can go out and obtain this kind of guidance, but in the end you must exercise your own fiduciary responsibilities and you cannot rely on others to do that for you. Mr. Hultgren. Okay. Mr. Chairman, I see my time is just about out. I will yield back. I don't know if you have a-- Chairman Garrett. No. I will-- Mr. Hultgren. Okay. I yield back. Thank you. Chairman Garrett. Thanks. I now recognize Mr. Mulvaney. Mr. Mulvaney. Thank you, Mr. Chairman. It strikes me that many of the complaints we are hearing are sort of typical when you are operating in a marketplace where there are only two providers, or 2 providers provide 97 percent of the services, so I want to drill down a little bit on the questions that my colleagues, Mr. Scott and Mr. Hultgren, just asked and start with you, Mr. Pitt, because clearly one reaction would be to regulate this industry because of the apparent concentration of market power, but obviously competition would be another possible solution. You said a couple of times in the last couple of answers that there are government policies that are preventing new entrants, but I haven't heard the specifics yet on what those policies are. What is it specifically that the government is doing that is preventing you and me from going into this business and starting a new competitor? Mr. Pitt. I think that some of the policies that exist are an indifference, if you will, to the fact that the existing advisory firms engage in a one-size-fits-all approach, that there is no sense of concern about the failure of the two major proxy advisory firms to consider the best financial interests of shareholders, and-- Mr. Mulvaney. Okay, but let me catch up. Indifference is not a policy. There is a difference between the government getting involved to promote competition, okay--we could do things to try and encourage competition, but there are also things we do to discourage competition. Is there anything that this government is doing now that is discouraging me and Mr. Hultgren from getting into this industry? Because indifference is not a policy. Mr. Pitt. Yes. I think with respect to the subject of the no-action letters, for example, the grant by the SEC staff of the ability of the existing proxy advisory firms to permit registered investment advisors to focus on their general policies instead of whether there is a specific conflict has diminished the ability to create competition in this field. Mr. Mulvaney. So if you and I, or me and Mr. Hultgren, want to start another--we can't get that same treatment. Is that what you are saying? Mr. Pitt. Yes. Mr. Mulvaney. Someone else help me out here. What am I missing? Is there something else? Why aren't there more competitors in this market? Don't everybody jump up at one time. Mr. Holch. I will take a crack at-- Mr. Mulvaney. Mr. Holch, yes, sir? Mr. Holch. I think one of the problems is for institutional investors you need to have a certain amount of scale to function in this market. You have to cover 13,000 annual meetings. The proxy statements, as Darla Stuckey said earlier, average 100 pages. You need to be of a certain size to really service the marketplace. There have been other firms that have tried to get into the retail space and have really failed miserably because the retail shareholders won't pay for it, either. So I think there is a sort of a price and a cost dynamic that makes it really difficult to compete. Mr. Turner. Having started Glass Lewis, I would totally agree with that. There have been others in the marketplace that didn't get to the scale and failed financially, so you have to be able to almost immediately--we had to go out and get venture capital backing to give us the ability to ramp up quickly because we had to be able to cover 5,000 or 10,000 companies right out of the gate, so you have to have the ability to raise some money, to ramp the scale, put in the technologies, and then get institutional investors to be willing to sign on. And they are reluctant to sign on to someone who has never done it before, so--and it is not a big marketplace. If you look at the revenues at Glass Lewis and ISS combined, they are probably in the $250 million to $350 million range. This is not a big marketplace. The ability to get a return if you do invest in a company like this is not that great, so I just don't think you are going to see--financially the market just isn't going to support any other entrants. Mr. Mulvaney. Mr. Bartl? Mr. Bartl. Yes. It is interesting. If you look at the current market participants and the scale and the competition between them, you have one player in ISS that is substantially bigger. When Glass Lewis makes an attempt to move, you see a countermove as well by ISS, and if you look at the announcement by Glass Lewis last spring of greater engagement with its investors, ISS announced its feedback review board. Whether the two are connected, I don't know, but you saw that. Mr. Mulvaney. Okay. Mr. Bartl. You saw peer groups with Glass Lewis and using a more market-based participation. In addition to the blow-up I discussed on peer groups, ISS adopted a similar procedure as part of its procedure when it revised its process for 2013. So, getting into the market and staying in deals with market participation, and this has been discussed in other settings before by other organizations that have explored the competition in the market. Mr. Mulvaney. Okay. That is helpful, because that is not where I thought Mr. Pitt was going. I thought there was something we were doing to prevent that type of competition, which you have just described can be experienced in many industries where economies of scale simply prevent new entrants, so that is sort of a natural barrier to entry. And there are different ways to deal with that, Mr. Pitt, than dealing with something we are doing to affirmatively prevent competition, so that is extraordinarily helpful. I yield back. Thank you, Mr. Chairman. Chairman Garrett. Thank you. The gentleman from California? Mr. Royce. Thank you, Mr. Chairman. I would like to ask Mr. Pitt a couple of questions. Last year, Glass Lewis offered vote recommendations for the Canadian Pacific Railway shareholders meeting and the Ontario Teachers Pension Board, the parent company of Glass Lewis--opposed the board of directors of the Canadian Pacific Railway. Not surprisingly, Glass Lewis issued a recommendation that shareholders oppose the incumbent board of directors and vote for an alternative slate. According to a letter sent by the Chamber of Commerce to the SEC, the case represents tangible conflicts of interest in the operation of proxy advisory firms. What I wanted to find out--the chairman has discussed this issue, and you have alluded to it as well--is how common are these types of instances, and would disclosing a conflict of interest such as this be sufficient or, in your judgment, Harvey, is it necessary to take more prescriptive measures in order to address this, other than just disclosure? Mr. Pitt. I think that at present, the disclosure that exists is very vague and generic, i.e., ``We may have positions or our parent may have positions,'' and then Glass-- Mr. Royce. That is not disclosure, right-- Mr. Pitt. It is not. When I was chairman, that is what the research analysts did, and we prohibited that. Mr. Royce. Right. Mr. Pitt. I think one thing that has to occur is you have to disclose real conflicts on real time. The second is there has to be an accepted standard of behavior for these firms. We think that can be achieved consentually. If that fails, then there may be a need for government action, but right now ISS and Glass Lewis have no interest in developing appropriate standards on conflicts. Mr. Royce. The post-Andersen debacle led to a situation where what was once presumed effective Chinese firewalls-- clearly post-debacle that was addressed, and we get into the issue here of ISS, and certainly the SEC and the GAO both pointed out conflicts of interest arise when an advisory firm runs a consulting business alongside its proxy advisory services. And there are times when they may be asked to advise on shareholder proposals sponsored by someone who obviously is also paying them on consulting work. Now, what is surprising is when you go through the record how many cases you can find. In 2011, AFSCME sponsored a shareholder proposal at Target Corporation, and that same year AFSCME paid ISS as a client. In 2010, the Nathan Cummings Foundation sponsored a shareholder proposal at Masco while paying ISS for, again, advice. In 2010, the Connecticut Retirement Plans and Trust Funds sponsored a shareholder proposal at Abercrombie and Fitch, and that same year the Connecticut State Treasurer confirmed in a letter to the SEC that the State was a client of ISS, and that she would support initiatives to clarify potential conflicts of interest on the part of proxy advisory firms. So sure, these should be disclosed, but I want to take it a step further. And maybe I could ask Mr. Morgan on this, because Mr. Morgan in his written testimony called this an inherent conflict of interest. The question is, what would the solution be, in your opinion? Mr. Morgan. Certainly, if you can't regulate it starts with transparency, and those conflicts should be stated and shown on any recommendation that they make that they are also providing consulting services for these activists or whoever is proposing that position. So I think that would be the starting point so that when the recommendation is read you can see that there is--they have also supplied consulting services. Mr. Royce. Harvey, would that be sufficient, in your opinion? Mr. Pitt. It could be. I think one of the things that would solve this problem would be to eliminate the effect of these no-action letters that permit firms not to detail specific conflicts of interest before they recommend positions with respect to those companies. Mr. Royce. Thank you. Thank you, Mr. Chairman. I yield back. Chairman Garrett. The gentleman from California now yields back. That concludes the questioning from all the Members who are here. We have just agreed with the ranking member that we will--if the panelists can sit through 10 more minutes, we will do an additional 5 minutes on each side. The gentleman from California will have his 5 minutes. I will share with whoever is still here on our side, or I will use the 5 minutes. But with that, I will yield to the gentleman from California. Mr. Sherman. I will, of course, generously share my 5 minutes with all the other Democrats who are here. Mr. Pitt, do I as a--let's say there are two panels running for board of directors, one of which is committed to divesting from Iran, protecting the environment, and promoting American jobs. The other, in my opinion, is going to earn one cent more per share for all the shareholders. Do I as a shareholder have a fiduciary duty to my fellow shareholders to vote for that second panel? Mr. Pitt. I don't think fiduciary duty determines which way you vote. I think fiduciary duty dictates that your standard should be what is in the best interests of those to whom you owe the duty, and-- Mr. Sherman. As I said, these are my own shares. Mr. Pitt. If you conclude that in the long run, a certain vote will promote the best interests of those shareholders, then-- Mr. Sherman. Okay. I own these shares. They are mine. Do I have a fiduciary duty to vote in the best interests of all those other people who have invested in IBM stock? Mr. Pitt. No. Mr. Sherman. Or can I--okay. Mr. Pitt. No. You vote your shares for any reason. Mr. Sherman. Ms. Stuckey, you suggested an after-action filing of the report. Let's say the Smith Family Trust has decided--its trustees--a big foundation, maybe a big family trust--that they want to divest from Iran but they have decided they don't want to divest from Sudan. If the report given to them by their investment--their proxy advisors is filed with the SEC then everyone in the country will know that the Smith family is good on Iran but they are not tough on Khartoum. Is that fair? Ms. Stuckey. I think so, under that scenario. Mr. Sherman. So you think that if the Smith family--just a family trust, a couple of brothers put their money in--have decided that they are going to pick their-- Ms. Stuckey. You don't know for sure that they followed the recommendation. Mr. Sherman. Are you saying that if Jack Smith and John Smith have an investment partnership and they choose to get advice on how to vote their proxies-- Ms. Stuckey. And assuming they were-- Mr. Sherman. --that the entire world has to know what their proxy voting criteria are? Ms. Stuckey. If they are an institutional investor with a fiduciary duty-- Mr. Sherman. I didn't say an institutional investor; I said Jack and John Smith. Ms. Stuckey. Jack and John Smith probably didn't buy the proxy advisory firm services. They are probably a retail-- Mr. Sherman. In my example, I said they were relatively wealthy brothers with a big trust. They can buy what they want. Ms. Stuckey. Then they have no obligation to-- Mr. Sherman. They have no obligation-- Ms. Stuckey. --follow the recommendations or not. They can just-- Mr. Sherman. So now, let's say it is an ERISA pension plan. Do you think they have an obligation to disclose their voting criteria? Ms. Stuckey. Yes. Mr. Sherman. Okay. Let's see. I didn't know we would get a second bite at this apple. So, Mr. Pitt, is it the Chamber's belief that we should have this race to the bottom by the different States in trying to deprive shareholders of any meaningful control and that corporations should be--publicly traded corporations should be free to incorporate in whichever State has the least cumulative voting, the longest terms for board members, et cetera? Should we have minimum national standards or should we invite States to try to get this business from other States by offering the most pro-management corporate law? Mr. Pitt. With all due respect, there is a mixed metaphor. The Chamber supports high standards; they do not support a race to the bottom. With respect to the issue-- Mr. Sherman. How would we get those high standards? Or can you be in a position to say, ``We as a Chamber support high standards but we support a system in which States will naturally race to the bottom and the Federal Government won't stop them?'' Mr. Pitt. The support should be--and I think is--for the system as originally adopted by Congress, which is that the States decide the substantive rights of shareholders, and there are a lot of very strong reasons why that was a very wise policy. Mr. Sherman. And it has given us the weakest possible shareholder protection. I see my time has expired. I yield back. Chairman Garrett. Thank you. And for the final 5 minutes, so in the testimony that we have received today on one of the issues dealing with say on pay--and I will throw this out to Ms. Stuckey and Mr. Bartl-- Congress was pretty explicit as to how say on pay was going to play out, or should play out, but the way the proxy advisors basically played it out was in contradistinction to where Congress is. That is to say, it would be, what, every year. Do you see by them doing that as a conflict or a contradiction from Congress as it is laid out, or as a potential conflict from their interest to the investors in this situation? I will start with Ms. Stuckey. Ms. Stuckey. I think say-on-pay votes being every year certainly increases the need for their services, so they are perpetuating themselves in business. I will add to that, when companies get recommendations that they don't like, they talk to their investors. So they go out and talk to their investors now more than they ever did before. There are companies that tell us, ``We talked to every single one of our top 50 investors, and they all want 3-year say on pay.'' Chairman Garrett. Okay. Mr. Bartl. I would simply echo that, Mr. Chairman. And even for those who aren't saying, for 3 years now, they have been saying, ``We are going to look at this over the time being,'' simply because the workload involved in an annual say-on-pay analysis versus the benefit received is something that is starting to weigh on the investor, as well. So there is definitely a vested interest in keeping it at one year. Chairman Garrett. Okay. Just two other points. First of all, we got into a little bit--actually, the testimony was Mr. Holch, with regard--and some others, as well--to the point of what can be done, and you laid out some of these points as to help facilitate more direct communications between the entities--the companies and the investors. And I think there is unanimity on the panel that this is something that would be good to work on, and the Congress should take an additional look at, that there is a problem in this area, and this is an area where Congress has a role to try to help facilitate. Mr. Holch? Mr. Holch. The SEC has the authority to repeal their NOBO- OBO rules, which I described in my testimony. The SEC also has the authority to switch the responsibility of communicating with shareholders from the brokers and the banks over to the public companies. But certainly Congress has a role, and I think it would be great if members of this subcommittee could help us encourage the SEC to move this along. The public company community has waited a long time to try to address these issues and we are supported by a number of institutional investors. There really is a consensus for change, and so we just need to get this up the priority list over at the SEC. Chairman Garrett. There are a couple of different areas that we heard from on this overall panel, and hopefully, this is one area where we may find some degree of agreement, and some degree of bipartisanship on as we look at it further. The area where we may have a little bit more dissention is the role and the--how we deal with proxy advisors. My takeaway--and someone can correct me if it is wrong--is that there is--whether we are talking about the retail--yes, when we are talking about the retail investor, there is still a lack of clarity as to what the obligation is of the proxy advisor to my mom, the small retail investor, of the proxy advisor. There is no obligation, basically. Yes, not clarity--I should say there is no obligation. Conversely, there--thank you. Mr. Morgan is agreeing with me that there is no obligation of the proxy advisor to the retail investor. The other takeaway that I am getting from this as well is that there might be--or there are various conflicts that the proxy advisor currently has, whether it is the one that Ms. Stuckey talked about just now, the one that Mr. Bartl talked about earlier with regard to the selling of services on the side, if you will, and also the one that others have pointed out, the potential conflict of basically who owns these proxy advisors, and who their largest clients also are may influence their decisions as to their advice on these things. Mr. Turner is shaking his head ``no,'' but as of right now, I can't see why there is not a potential for a conflict of interest when they do not owe me or the small retail investor and there is not disclosure or transparency as to what those potential conflicts are. Those potential conflicts potentially can exist, and I think that is something that we can take a look at. And I will close on this, on the happy note that I think Chairman Pitt raised, that maybe some of this can be done just on a consensus basis with trying to bring the interested parties together, because now Congress is taking a focus on it. I will end on that happy note, although I think that when two entities have 97 percent of the market share, I have a feeling that they probably don't have a whole lot of interest in trying to reach any compromise on this, but we will remain optimistic. I thank all of you for your testimony. The Chair notes that some Members may have additional questions for this panel, which they may wish to submit in writing. Without objection, the hearing record will remain open for 5 legislative days for Members to submit written questions to these witnesses and to place their responses in the record. Also, without objection, Members will have 5 legislative days to submit extraneous materials to the Chair for inclusion in the record. With that, we are now adjourned. [Whereupon, at 12:00 p.m., the hearing was adjourned.] A P P E N D I X June 5, 2013 [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]