[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                   IMPROVING RETIREMENT SECURITY AND
                    ACCESS TO MENTAL HEALTH BENEFITS

=======================================================================

                                HEARING

                               BEFORE THE

                         SUBCOMMITTEE ON HEALTH,  
                      EMPLOYMENT, LABOR, AND PENSIONS

                                 OF THE

                    COMMITTEE ON EDUCATION AND LABOR
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________


             HEARING HELD IN WASHINGTON, DC, MARCH 1, 2022

                               __________

                           Serial No. 117-40

                               __________

      Printed for the use of the Committee on Education and Labor
      
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]      

        Available via: edworkforce.house.gov or www.govinfo.gov
        
                                __________

                   U.S. GOVERNMENT PUBLISHING OFFICE                    
56-629 PDF                  WASHINGTON : 2025                  
          
-----------------------------------------------------------------------------------     
        
                    COMMITTEE ON EDUCATION AND LABOR

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

RAUL M. GRIJALVA, Arizona            VIRGINIA FOXX, North Carolina,
JOE COURTNEY, Connecticut              Ranking Member
GREGORIO KILILI CAMACHO SABLAN,      JOE WILSON, South Carolina
  Northern Marina Islands            GLENN THOMPSON, Pennsylvania
FREDERICA WILSON, Florida            TIM WALBERG, Michigan
SUZANNE BONAMICI, Oregon             GLENN GROTHMAN, Wisconsin
MARK TAKANO, California              ELISE M. STEFANIK, New York
ALMA S. ADAMS, North Carolina        RICK W. ALLEN, Georgia
MARK DeSAULNIER, California          JIM BANKS, Indiana
DONALD NORCROSS, New Jersey          JAMES COMER, Kentucky
PRAMILA JAYAPAL, Washington          RUSS FULCHER, Idaho
JOSEPH D. MORELLE, New York          FRED KELLER, Pennsylvania
SUSAN WILD, Pennsylvania             MARIANNETTE MILLER-MEEKS, Iowa
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
JAHANA HAYES, Connecticut            BOB GOOD, Virginia
ANDY LEVIN, Michigan, Vice Chairman  LISA McCLAIN, Michigan
ILHAN OMAR, Minnesota                DIANA HARSHBARGER, Tennessee
HALEY M. STEVENS, Michigan           MARY MILLER, Illinios
TERESA LEGER FERNANDEZ, New Mexico   VICTORIA SPARTZ, Indiana
MONDAIRE JONES, New York             SCOTT FITZGERALD, Wisconsin
KATHY MANNING, North Carolina        MADISON CAWTHORN, North Carolina
FRANK J. MRVAN, Indiana              MICHELLE STEEL, California
JAMAAL BOWMAN, New York              JULIA LETLOW, Louisiana
SHEILA CHERFILUS-McCORMICK, Florida  VACANCY
MARK POCAN, Wisconsin                VACANCY
JOAQUIN CASTRO, Texas
MIKIE SHERRILL, New Jersey
ADRIANO ESPAILLAT, New York
KWEISI MFUME, Maryland

                   Veronique Pluviose, Staff Director
                  Cyrus Artz, Minority Staff Director
                                 ------                                

        SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                 MARK DeSAULNIER, California, Chairman

JOE COURTNEY, Connecticut            RICK ALLEN, Georgia,
DONALD NORCROSS, New Jersey            Ranking Member
JOSEPH D. MORELLE, New York          JOE WILSON, South Carolina
SUSAN WILD, Pennsylvania             TIM WALBERG, Michigan
LUCY McBATH, Georgia                 JIM BANKS, Indiana
ANDY LEVIN, Michigan                 DIANA HARSHBARGER, Tennessee
HALEY M. STEVENS, Michigan           MARY MILLER, Illinios
FRANK J. MRVAN, Indiana              SCOTT FITZGERALD, Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  VIRGINIA FOXX, North Carolina (Ex 
    (Ex Officio)                         Officio)
                         
                         
                         C  O  N  T  E  N  T  S

                              ----------                              
                                                                   Page

Hearing held on March 1, 2022....................................     1

                           OPENING STATEMENTS

    DeSaulnier, Hon. Mark, Chairman, Subcommittee on Health, 
      Employment, Labor, and Pensions............................     1
        Prepared statement of....................................     5
    Allen, Hon. Rick, Ranking Member, Subcommittee on Health, 
      Employment, Labor, and Pensions............................     7
        Prepared statement of....................................     9

                               WITNESSES

    Matsui, Amy, Director of Income Security, National Women's 
      Law Center.................................................    11
        Prepared statement of....................................    13
    Handorf, Karen, Senior Counsel, Berger Montague P.C..........    22
        Prepared statement of....................................    25
    Biggs, Andrew, Senior Fellow, American Enterprise Institute..    39
        Prepared statement of....................................    41
    Szapiro, Aron, Head of Retirement Studies and Public Policy, 
      Morningstar Investment Management, LLC.....................    53
        Prepared statement of....................................    55

                         ADDITIONAL SUBMISSIONS

    Chairman DeSaulnier:
        Letter dated February 28, 2022, from the American 
          Federation of State, County and Municipal Employees 
          (AFSCME)...............................................   110
        Statement dated March 1, 2022, from the American Benefits 
          Council................................................   113
    Ranking Member Allen:
        Statement dated March 1, 2022, from The Association for 
          Behavioral Health and Wellness.........................    86
        Statement dated March 1, 2022, from The ERISA Industry 
          Committee..............................................    88
        Statement dated March 1, 2022, from Fidelity Investments.
        Statement dated March 1, 2022, from the Hispanic 
          Leadership Fund........................................   104
        Letter dated March 1, 2022, from the Partnership for 
          Employer-Sponsored Coverage (P4ESC)....................   107
    Norcross, Hon. Donald, a Representative in Congress from the 
      State of New Jersey:
        Letter dated February 15, 2022, from TIAA................   128
    Walberg, Hon. Tim, a Representative in Congress from the 
      State of Michigan:
        Statement dated March 15, 2022, from Robert H. Sitkoff...   129
        Statement dated March 15, 2022, from the U.S. Chamber of 
          Commerce...............................................   133

                        QUESTIONS FOR THE RECORD

    Responses to questions submitted for the record by:
        Mr. Andrew Biggs.........................................   141
        Ms. Amy Matsui...........................................   143
        Ms. Karen L. Handorf.....................................   147

 
                   IMPROVING RETIREMENT SECURITY AND
                    ACCESS TO MENTAL HEALTH BENEFITS

                              ----------                              


                         Tuesday, March 1, 2022

                  House of Representatives,
    Subcommittee on Health, Employment, Labor, and 
                                          Pensions,
                          Committee on Education and Labor,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:18 a.m., 
via Zoom, Hon. Mark DeSaulnier (Chairman of the Subcommittee) 
presiding.
    Present: Representatives DeSaulnier, Courtney, Norcross, 
Wild, McBath, Levin, Stevens, Scott (Ex Officio), Allen, 
Walberg, Banks, Miller, Fitzgerald, and Foxx (Ex Officio).
    Staff present: Illana Brunner, General Counsel; Daniel 
Foster, Health and Labor Counsel; Rasheedah Hasan, Chief Clerk; 
Sheila Havenner, Director of Information Technology; Eli 
Hovland, Policy Associate; Carrie Hughes, Director of Health 
and Human Services; Ariel Jona, Policy Associate; Stephanie 
Lalle, Communications Director; Kevin McDermott, Senior Labor 
Policy Advisor; Richard Miller, Director of Labor Policy; Max 
Moore, Staff Assistant; Kayla Pennebecker, Staff Assistant; 
Veronique Pluviose, Staff Director; Banyon Vassar, Deputy 
Director of Information Technology; Cyrus Artz, Minority Staff 
Director; Michael Davis, Minority Legislative Assistant; Mini 
Ganesh, Minority Staff Assistant; John Martin, Minority Deputy 
Director of Workplace Policy/Counsel; Hannah Matesic, Minority 
Director of Member Services and Coalitions; Audra McGeorge, 
Minority Communications Director; Ethan Pann, Minority Press 
Assistant; Krystina Skurk, Minority Speechwriter; and Ben 
Ridder, Minority Professional Staff Member.
    Chairman DeSaulnier. Welcome everybody. Good morning. We 
are ready to begin. I will count down from five and then we 
will start, five, four, three to one.
    The Subcommittee on Health, Employment, Labor and Pensions 
will come to order. Welcome again everyone. I note that a 
quorum is present. The subcommittee is meeting today to hear 
testimony on Improving Retirement Security and Access to Mental 
Health Benefits. This is an entirely remote hearing. All 
microphones will be kept muted as a general rule to avoid 
unnecessary background noise.
    Members and witnesses will be responsible for unmuting 
themselves when they are recognized to speak, or when they wish 
to seek recognition. I would also ask that members please 
identify themselves before they speak. Members should keep 
their cameras on while in the proceeding.
    Members shall be considered present in the proceeding when 
they are visible on camera, and they shall be considered not 
present when they are not visible on camera. The only exception 
to this is if they are experiencing technical difficulty and 
inform committee staff of such difficulties.
    If any member experiences technical difficulty during the 
hearing you should stay connected on the platform, make sure 
that you are muted, and use your phone to immediately call the 
committee's IT director whose number was provided in advance.
    Should the Chair experience technical difficulty, 
Congressman Levin, or another majority member is hereby 
authorized to assume the gavel in the Chair's absence. This is 
an entirely remote hearing, and as such the subcommittee's 
hearing room is officially closed.
    Members who choose to sit with their individual devices in 
the hearing room must wear headphones to avoid feedback, 
echoes, and distortion resulting from more than one person on 
the software platform sitting in the same room.
    While the recent guidance from the Office of the Attending 
Physician has made mask wearing optional at this time, please 
note that we have at both member and staff levels, the 
committee strongly recommends that masks continue to be worn 
out of concern for the safety of the unvaccinated, and 
immunocompromised committee members and staff.
    In order to ensure that the committee's 5-minute rule is 
adhered to, staff will be keeping track of time using the 
committee's digital timer which will appear in its own 
thumbnail picture. Members and witnesses are asked to wrap up 
promptly when their time has expired.
    Pursuant to Committee Rule 8(c), opening statements are 
limited to the Chair and the Ranking Member. This allows us to 
hear from our witnesses sooner and provides all members with 
adequate time to ask questions. I now recognize myself for the 
purpose of making an opening statement.
    Today we are meeting to discuss how Congress can improve 
workers retirement and access to mental health benefits. As our 
economy continues to recover, and our constituents struggle 
with higher costs caused by the pandemic, now more than ever, 
we need to help workers and retirees achieve financial 
stability, including a secure retirement and high-quality 
health care, including mental health and behavioral health.
    According to the New York Times, roughly 55 million 
Americans are 65 and older. Those at the peak of the Baby Boom 
are reaching 65 this year. Many are working later in their 
lives, relying on their next paycheck to make ends meet. With 
the Federal Reserve indicating many Americans would struggle to 
come up with money to finance an unexpected $400.00 expense, 
such as a car repair.
    Too few are earning enough to save for a dignified 
retirement. Similarly, health care, particularly mental and 
behavior health care is too often unaffordable for workers and 
their families. Even before the pandemic less than half of 
individuals with mental illness, and only 11 percent of 
individuals with a substance abuse disorder received needed 
behavioral health services or treatment.
    The pandemic has underscored the urgency of this crisis. In 
the past 2 years Congress and this committee have remained 
committed to improving retirement security and strengthening 
health coverage for workers and families. Last March 
congressional democrats and the administration addressed the 
urgent multi-employer pension crisis and fully protected the 
pensions of more than 1 million Americans.
    Our solution was broadly supported by key stakeholders, 
including hundreds of employers and the United States Chamber 
of Commerce. Had we not acted, plans would have failed, workers 
and retirees would have lost nearly everything they worked so 
hard to save, and employers would have been forced to close or 
cut jobs.
    In November, the committee advanced the Retirement 
Improvement and Savings Enhancement RISE Act. This bipartisan 
legislation would make meaningful improvements to improving the 
retirement security of American workers, and I want to thank 
all my colleagues, the ranking members of the committee and the 
subcommittee.
    The committee has played a leading role in strengthening 
health benefits, including through efforts to improve 
enforcement of the Mental Health Parity and Addiction Equity 
Act. However, we know that there is more work to be done, much 
more work to be done to build a stronger, more inclusive 
retirement system, and improve access to mental and behavioral 
health care.
    Today I look forward to discussing several commonsense 
solutions to help us do just that. First the hearing will 
explore draft legislation that Representative Lucy McBath 
intends to file. This draft bill makes a number of improvements 
in the Nation's retirement system, and includes important 
legislation that has been, or will be filed by our committee 
colleagues.
    Specifically, the discussion draft helps 401K participants 
better understand the fees they pay on investments. This is 
based on legislation that Representative Susan Wild plans to 
introduce soon. It increases lifetime income options in 
worker's 401K plans. This is based on bipartisan legislation 
Representative Don Norcross and Tim Walberg, our colleagues 
recently introduced. I want to thank them for their leadership 
on this, along with Representatives Wild and McBath.
    This also gives workers additional opportunities to be part 
of their employer's retirement plan. This is based on 
legislation that Representative Kathy Manning recently 
introduced. It boosts employee ownership programs through the 
Department of Labor. This is based on legislation that 
representatives Joe Courtney and Mark Pocan introduced.
    It encourages emergency savings. This is based on 
bipartisan legislation introduced by Representative Bonnie 
Watson Coleman and Congressman French Hill. This discussion 
draft also includes provisions to increase spousal protections 
in 401K plans that were included in legislation offered by our 
colleague Representative Lauren Underwood.
    I look forward to today's testimony on how this package as 
a whole can bolster American's retirement security. Second, the 
Biden and Harris Administration has taken steps to reverse the 
prior administration's rules that made it harder for retirement 
plans to consider climate change, and other environmental 
social governance, or ESG factors when selecting investments. 
Workers are interested investing in a way that reflects their 
values without sacrificing returns, something Representative 
Andy Levin has been working on, and we look forward to the 
final rule.
    Third, the administration recently released a report 
examining implementation of mental health parity by health 
plans. The report found widespread failure by health plans to 
comply with important requirements of the law. It made several 
recommendations that would improve enforcement, and strengthen 
coverage of behavioral health, both for the benefit of workers, 
their employers, and retirees.
    Finally, we will learn about ways to protect workers and 
their families from barriers they face in enforcing their 
rights under retirement health plans including mandatory 
arbitration agreements, discretionary clauses and other 
technical issues.
    Through these commonsense solutions I am hopeful, and I am 
confident, we can take another step forward to help Americans 
retire with security and access to all the health care they 
need and deserve and have paid for. I welcome my Republican 
colleagues' support, and hopefully we can work together to 
further secure Americans' financial futures.
    Now it is my pleasure to recognize the distinguished 
ranking member for the purpose of making his opening statement. 
Representative Allen.
    [The statement of Chairman DeSaulnier follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Allen. All right. Thank you, Mr. Chairman. I think I am 
unmuted. Can you hear me, okay?
    Chairman DeSaulnier. Yes.
    Mr. Allen. Okay. Well, I am in the committee hearing room, 
and I will be just delighted to have you next to me sooner than 
later, so I would hope we could consider that as we open up our 
House to the people. Thank you for holding this hearing today. 
Our retirement system is healthier than it's been in decades.
    Employer based retirement savings are thriving. More 
Americans see the value of saving for the future. Committee 
republicans are working to make the future of American retirees 
more secure, strengthening employer-sponsored retirement plans, 
particularly defined contribution plans are the best way to 
encourage workers to put money toward retirement savings 
voluntarily.
    The committee is addressing much needed reforms for the 
defined contribution retirement system through bipartisan 
legislation. The RISE Act, H.R. 5891 and the Securing a Strong 
Retirement Act of 2021, H.R. 2954, will expand American 
workers' access to secure retirement. The committee should 
focus on enacting these bipartisan bills.
    Specifically, the RISE Act expands multi-employer plans, 
which will make it easier for non-profit organizations, 
educational institutions, and small businesses to provide 
retirement benefits to their employees. The RISE Act also 
expands retirement savings for part-time and traditional 
workers, helping more Americans get ready for retirement.
    The RISE Act also allows employers to offer small, 
financial incentives to employees for participating in 
retirement plans. The earlier American workers prepare for 
retirement the better. Empowering American workers to take 
ownership of their retirement savings is important for their 
long-term financial health, and that of their families.
    It also contributes significantly to the future economic 
health of our Nation. We must protect taxpayers from 
irresponsible bailout schemes. President Biden's bail out of 
multi-employer pension plans in the so-called American Rescue 
Plan was reckless and irresponsible, sending 97 billion to 
underfunded pension plans without addressing the root cause is 
like scooping water out of a boat while it still has a hole in 
it, and sinking.
    One of my first hearings on this committee was--and this 
was 8 years ago--dealing with multi-employer pension plans, and 
we have yet to do anything about it. The multi-employer pension 
system is in desperate need of systematic reform to protect 
workers and retirees from further mismanagement and to stop 
creating incentives for underfunding the plans, plus costing 
taxpayers millions of dollars.
    Unless changes are made, these pension plans will backslide 
into old destructive patterns. We must demand accountability, 
transparency, and assurances that taxpayers will never again be 
asked to bear the burden of mismanaged pension plans. 
Furthermore, we must be vigilant against the Biden 
administration's aggressive and punitive regulatory agenda. The 
administration has demonstrated that it cares more about its 
radical progressive agenda than the financial well-being of 
retirees.
    This was evidenced by the Department of Labor's proposed 
rule that will pressure retirement plan fiduciaries to 
prioritize environmental, social and governance factors when 
investing retirement plan assets. This is a reversal of 
protections the Trump administration put in place for 
retirement savers. Now the President of the United States is 
going to tell people where to invest their money.
    This is ridiculous. That is why republican leader Foxx, and 
I sent a letter to Secretary Walsh in December requesting that 
the DOL rescind this proposed rule. Retirement plan fiduciaries 
are caretakers of retirement accounts, not social justice 
lawyers. Putting the Biden administration's radical green and 
social agendas above the financial interest of retirees is 
unacceptable.
    With government run retirement plans faltering, it is more 
important than ever to strengthen employer-based retirement 
savings. Our bipartisan legislation will empower both employers 
and workers to cooperate for a better and more secure future.
    Last, I would like to add a note about this hearing. 
Cramming sweeping and diverse topics into one hearing fails to 
give these important issues a really thorough bipartisan 
discussion. I hope this committee could aim to do better in the 
future, and with that, Mr. Chairman, I yield back.
    [The statement of Ranking Member Allen follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    

    Chairman DeSaulnier. Thank you, Mr. Allen. Without 
objection, all other members who wish to insert written 
statements into the record may do so by submitting them to the 
committee clerk. You should do this electronically in Microsoft 
Word format by 5 p.m. on March 15.
    It is now my pleasure to thank and introduce our witnesses 
today. Thank you for being part of the hearing. I will start 
with Ms. Amy Matsui, whose name sounds familiar to me, is the 
Director of Income Security and Senior Counsel of the National 
Women's Health Center.
    Ms. Karen Handorf is Senior Counsel at the law firm Berger 
Montague. Mr. Andrew Biggs is a Senior Fellow and Resident 
Scholar as the American Enterprise Institute, and Mr. Aron 
Szapiro is Head of Retirement Studies and Public Policy at 
Morningstar, Inc. We very much appreciate the witnesses for 
participating today and look forward to your testimony.
    Let me remind the witnesses that we have read your written 
statements, and they will appear in full in the hearing record. 
Pursuant to Committee Rule 8(d) and committee practice, each of 
you is asked to limit your oral presentation to a 5-minute 
summary of your written statement.
    Before you begin your testimony, please remember to unmute 
your microphone. During your testimony staff will be keeping 
track of time and a light will blink when your time is up. 
Please be attentive to the time, wrap up when your time is 
over, and then re-mute your microphone. If any of you 
experience technical difficulty during your testimony, or later 
in the hearing, you should stay connected on the platform, make 
sure you are muted, and use your phone to immediately call the 
committee's IT director whose number was provided to you in 
advance.
    We will let all the witnesses make their presentation 
before we move to member questions. When answering a question 
please remember to unmute your microphone. The witnesses are 
aware of their responsibility to provide accurate information 
to the subcommittee, and therefore we will proceed with their 
testimony.
    I will first recognize Ms. Matsui. Your mother-in-law has 
asked me to be nice to you, and I will. Go ahead.

 STATEMENT OF MS. AMY MATSUI, DIRECTOR OF INCOME SECURITY AND 
 SENIOR COUNSEL, NATIONAL WOMEN'S LAW CENTER, WASHINGTON, D.C.

    Ms. Matsui. Thank you Chair DeSaulnier, Ranking Member 
Allen, Chairman Scott, Ranking Member Foxx, and members of the 
committee and subcommittee. I appreciate the opportunity to 
testify about improving women's retirement security. My name is 
Amy Matsui. I am the Director of Income Security and Senior 
Counsel of the National Women's Law Center.
    In order to ensure a dignified retirement, women need 
retirement income from employer-sponsored pensions, and 
retirement savings plans to supplement social security's modest 
benefits. Because women face workplace inequities and shoulder 
the burden of family caregiving, they experience disparities in 
retirement income and retirement savings.
    Women, especially women of color and women in low-wage 
jobs, may have less access to retirement savings plans at work, 
and even when women participate in retirement savings plans, 
they may be less able to save from their smaller paychecks.
    The gender wage gap alone costs women $400,000.00 over a 
40-year career, with a lifetime loss of earnings for black 
women and Latinos, approximating one million dollars.
    COVID will likely have negative long-term effects on 
women's lifetime incomes, wealth, and overall economic 
security. According to an AARP survey last year, more than one 
in five women reported that they prematurely dipped into their 
retirement savings or stopped contributing altogether during 
the pandemic.
    For all of these reasons, married women rely on their 
spouse's retirement income and savings more than men do. 
Unfortunately, loopholes in spousal protections under ERISA 
undermine women's retirement security. The Retirement Equity 
Act of 1984 established spousal protections for traditional 
defined benefit pension plans by requiring the default form of 
benefit for married participants to be a joint and survivor 
annuity.
    In order for a married participant to receive pension 
benefits in a different form, like a single life annuity or a 
lump sum, the participant spouse must agree to waive his or her 
spousal rights in writing before a notary public or plan 
administrator. This prevents the participant spouse from making 
unilateral decisions that impact their spouse's retirement.
    However, the same protections do not apply to defined 
contribution plans like 401Ks, which are the predominant form 
of employer-sponsored retirement benefits. A married 
participant in a DC plan must obtain spousal consent if they 
want to designate a beneficiary other than their spouse to 
receive the account balance in case the participant dies while 
working.
    Unless a married worker elects to receive their DC account 
balance in the form of a life annuity, ERISA does not require 
DC plans to provide a joint and survivor spousal annuity as the 
default form of benefit. In other words, no spousal consent is 
required if the participant retires or changes jobs and decides 
to withdraw the account balance as lump sum, or roll it over 
into an IRA.
    At that point, there is nothing to stop the participant 
spouse from taking actions that could undermine the other 
spouse's retirement security. For example, the participant 
spouse could withdraw his retirement savings and make a risky 
investment, an extravagant purchase, or a gift that the other 
spouse did not consent to.
    He could squander the funds gambling. In any of those cases 
the funds would no longer be available for retirement. 
Practitioners have reported instances where participant spouses 
have drained their retirement savings accounts to prevent the 
other spouse from receiving a share during divorce proceedings.
    Even if the other spouse finds out they may effectively be 
without a remedy if their retirements funds are spent, and 
there are few other assets. Because Federal law does not 
require married IRA holders to name their spouse as a 
beneficiary, if the participant spouse rolls their 401K account 
balance into an IRA, they could name a child, a sibling, or a 
girlfriend as a beneficiary, cutting out the spouse.
    In all of these instances marital retirement savings have 
been placed out of the reach of spouses. Spouses may be 
deprived of their retirement savings when they need them the 
most. They may not even find out that the retirement savings 
they were counting on are gone until their spouse dies.
    Section four of the discussion draft circulated to the 
subcommittee would provide robust spousal protections and 
defined contribution plans and protect spouses against the 
risks I just described. It would give spouses decisionmaking 
power over how and when retirement savings are withdrawn from 
the account by requiring the default form of benefit to be a 
qualified joint survivor annuity, or its equivalent.
    It would not however require spousal consent for rollovers 
to other employer sponsored DC plans, or to IRAs that require 
spousal consent to have a beneficiary other than spouse named. 
Women faced a retirement crisis well before the pandemic and 
are likely to experience an even more uncertain retirement in 
its wake.
    Strengthening spousal rights in defined contribution plans 
would help ensure that women who rely on their spouse's 
retirement savings because they have fewer of their own, do not 
bear the risk of their spouse depleting, or giving those 
savings away. Thank you for the opportunity to testify, and I 
look forward to your questions.
    [The prepared statement of Ms. Matsui follows:]
   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    

    Chairman DeSaulnier. Thank you. We will now hear from Ms. 
Handorf. Please proceed.

    STATEMENT OF MS. KAREN HANDORF, SENIOR COUNSEL, BERGER 
                 MONTAGUE, ALEXANDRIA, VIRGINIA

    Ms. Handorf. Good morning, Mr. Chairman, Ranking Members, 
and members of the subcommittee, and thank you for the 
opportunity to testify today. The Department of Labor's 2022 
Mental Health Parity Report revealed stunning lack of mental 
health parity compliance by targeted plans and indicates a 
widespread non-compliance in general.
    To leverage its resources the Department of Labor should be 
given the requested authority to deal directly with insurance 
carriers and insurers acting as third-party administrators. The 
relevant terms of insured plans issued by carriers are likely 
to be administered and be identical by the carrier in the same 
way.
    The relevant terms of prototype plans sold by carriers to 
self-insured employers are also likely to be identical and 
administered by the insurer acting as a third-party 
administrator in the same way. If there are violations of 
mental health parity requirements, either in plan documents, or 
through plan administration, they are likely to show up in all 
plans insured or administered by the same carrier.
    DOL could leverage its limited resources if it could 
correct the problems at the insurer third-party service 
provider level, rather than seeking compliance from each 
employer individually. DOL should also be given civil penalty 
enforcement authority for parity violations. Under the current 
system there's no financial deterrent.
    A non-compliant employer only has to fix the non-compliant 
plan and pay the benefits it should have paid in the first 
place. If non-compliance results in a stiff penalty, employers 
will be more likely to comply before DOL knocks on the door. 
Employers are also more likely to comply if make-whole relief 
is available to participants who have been harmed by benefit 
denials.
    This is fair to the injured participant, and will 
incentivize employers to comply, or they will have to bear the 
financial consequences. Compliance will be even more likely if 
the Department is given the authority to make-whole relief on 
behalf of all participants who have been injured by a 
violation. DOL cannot do it alone. Congress intended for 
participants to have effective remedies, and ready access to 
the Federal courts.
    It is imperative that Congress lift the roadblocks that 
keep participants from protecting their own rights. One major 
roadblock is the deferential standard of review of benefit 
determinations. Many plan documents give broad discretion to 
those deciding benefit claims. Courts review those decisions 
under an extremely deferential standard of review.
    Benefits that would have been granted under a de novo 
standard are not under this discretionary standard. Because 
these discretionary standards undermine promised coverage, 26 
states have banned them from insurance policies issued in their 
states. They should also be banned in ERISA.
    An ERISA ban will protect plan participant's rights to 
receive hard-earned benefits, and it will ensure uniformity 
among plans in different states and between insured and self-
insured plans. Plan arbitration clauses are another major 
roadblock to private enforcement. These provisions deny 
participants their right to litigate their claims in Federal 
court.
    Some also prohibit class action lawsuits or limit the 
participant's ability to obtain relief for the plan as a whole. 
Some include confidentiality clauses and make it impossible for 
participants to inform others of fiduciary breaches. These 
arbitration clauses make it unlikely that a plan participant 
will challenge even egregious misconduct.
    Almost always, the monetary value of their individual claim 
will be a lot less than the cost of legal representation, and 
as a result, systemic violations impacting all plan 
participants will not be redressed. In many cases individual 
arbitration simply does not work with the remedial structure of 
ERISA.
    Plan investment decisions impact all plan participants in 
the same way, and relief for those violations should be uniform 
among participants. Individual arbitrations are likely to 
result in conflicting decisions about fiduciary misconduct, and 
inconsistent and non-uniform remedies for plan participants.
    There are many other significant roadblocks to effective 
private enforcement of ERISA as outlined in my written 
testimony. If we are committed to employer-sponsored health and 
pension plans, we must give DOL and participants the ability to 
make them work. Thank you.
    [The prepared statement of Ms. Handorf follows:]
   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman DeSaulnier. Thank you, Ms. Handorf. Now we will 
hear from Mr. Biggs. Mr. Biggs, the floor is yours.

    STATEMENT OF MR. ANDREW BIGGS, SENIOR FELLOW, AMERICAN 
             ENTERPRISE INSTITUTE, WASHINGTON, D.C.

    Mr. Biggs. Thank you very much, Chairman DeSaulnier, 
Ranking Member Allen, and members of the subcommittee. Thank 
you for the opportunity to testify today. My remarks will focus 
on how environmental; social and governance considerations 
should factor into the duties of fiduciaries such as retirement 
plan administrators owe to plan participants.
    I wish to start by pointing out the overlooked successes of 
the US retirement system. Despite what you may read about a 
purported retirement crisis, nearly all indicators of 
retirement preparedness are pointing in the right direction.
    More Americans are saving more for retirement than ever 
before, with savings increasing among every age, income, 
educational, and racial or ethnic group.
    Americans are working longer and delaying claiming social 
security benefits. More retirees are receiving benefits from 
private retirement plans. Retirement incomes are at record 
highs across the income distribution, and poverty and old age 
are at record lows.
    I am not Pollyannaish when it comes to our retirement 
system. I point out these successes so that we know what we may 
put at risk by ill-conceived policies. Under ERISA, fiduciaries 
are charged with acting solely in the interest of retirement 
plan participants. The Supreme Court unanimously ruled that 
those interests should be defined in purely financial terms.
    Now it is perfectly reasonable to suppose an environmental, 
social and governance factors could affect the financial 
returns on investment, but here is the problem. To the degree 
that ESG factors directly affect financial returns, those 
factors are likely already incorporated into the price of those 
investments.
    The firm that is superior in ESG factors in ways that will 
raise the firm's profits will carry a higher price today before 
any regulations or legislation has been passed.
    A firm whose ESG practices may reduce its profits will 
trade at a lower price today. Why do I say that? Today that is 
a supposition that we apply to nearly every factor that can 
affect financial returns.
    Investors like to make money in any factor that they 
believe will affect the firm's profits will be factored into 
the price they're willing to pay for the firm's stocks. That is 
true for ESG characteristics, just as it is true from whether 
investors think the new Play Station or Marvel movie will be a 
success. The Federal Thrift Savings Plan offers only index 
funds for precisely that reason.
    However, I am concerned that the regulatory or legislative 
attempts to force ESG further into the mix could have adverse 
results. For instance, H.R. 3604 would require that fiduciaries 
document how they have considered economic issues such as local 
job creation and affordable housing, employee treatment issues 
such as health safety, diversity, demographics, human rights, 
the right to collectively bargain, the prevention 
discrimination child labor and supply chain management.
    Environmental consideration, such as climate issues, 
species endangerment, environmental justice, worker transitions 
with respect to the shift to low carbon economy, and governance 
considerations such as executive compensation and board 
diversity.
    Given that exhaustive list of criteria, and the fact that a 
fiduciary who violates their duties risks being sued, fined or 
imprisoned, many fiduciaries might simply opt for the ESG fund 
to protect themselves, much as physicians practice wasteful 
precautionary medicine to protect against malpractice suits.
    I know that both legislation and regulations say the ESG 
factors should be included only if they do not reduce the value 
of an investment to the client. In the real world, including 
ESG funds, may be seen as an effective safe harbor against 
litigation.
    In an era of increasing lawsuits in 401K plan providers, 
that may skew fiduciaries' behaviors, but this would 
effectively negate ERISA's requirements that investors be 
placed first.
    The Americans' savings for retirement will be placed after 
Congress's desire to promote certain public policy goals, and 
after financial advisor's desire not to risk litigation for 
failing to promote Congress's goals.
    This could come at the expense of the saver. Research has 
shown that economically targeted investments conducted by State 
and local government pension plans are associated with lower 
investment returns. Other research in peer review journals 
finds that ESG investments tend to produce lower risk adjusted 
returns than other investments.
    Likewise, a recent study from the Center for Retirement 
Research at Boston College found that across nearly every asset 
class the 10-year average return on ESG funds trailed that of a 
comparable Vanguard index fund by an average of over 3 
percentage points annually.
    One reason for that is that ESG funds carry far higher fees 
than index funds. I believe fees help account for the rising 
popularity of ESG funds in the investment industry. In an era 
of index funds, actively managed ESG funds can be far more 
profitable to the fund manager, but this often comes at a cost 
to the investor's own savings.
    Again, I do not oppose fiduciaries considering any factors 
that would affect the financial value of investment offers, 
including ESG. We should consider carefully, either regulations 
or legislation that will push fiduciaries beyond that. Thank 
you very much.
    [The prepared statement of Mr. Andrew Biggs follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    

    Chairman DeSaulnier. Thank you, Mr. Biggs, perfect. We will 
now hear from Mr. Szapiro.

 STATEMENT OF MR. ARON SZAPIRO, HEAD OF RETIREMENT STUDIES AND 
  PUBLIC POLICY, MORNINGSTAR, INC. AND MORNINGSTAR INVESTMENT 
                  MANAGEMENT LLC., CHICAGO, IL

    Mr. Szapiro. Thank you, Chairman and members of the 
subcommittee for this opportunity to discuss ways to improve 
the U.S. retirement system.
    I am head of retirement studies and public policy at 
Morningstar, Inc., Morningstar Investment Management, LLC, and 
I also lead our Center for Retirement and Policy Studies, which 
released new research this morning addressing some of the 
issues that we are discussing today, and which I excerpted it 
in my written testimony.
    I am going to focus my remarks on the value of regulatory 
or statutory clarity on how plan sponsors should use 
environmental social governance, or ESG information, when 
selecting investments for their retirement plans, and I have a 
different perspective from Mr. Biggs, and I will try to explain 
why in this brief time.
    As requested in my written testimony, I have also covered 
two additional important issues, fee disclosures and provisions 
to expand access to lifetime income products and employer-based 
plans. Morningstar's mission is to empower investor success, 
and I bring several Morningstar perspectives to this testimony. 
We offer a variety of services to retirement plan sponsors and 
participants, including fiduciary services and managed 
accounts.
    I bring the perspectives of my colleagues who work every 
day to help investors reach their retirement goals. Morningstar 
also has specific expertise in ESG analysis, and I have 
gathered our views on the ESG issues from financial 
professionals across our organization.
    We categorize and rate different pooled investments such as 
mutual funds based on their ESG attributes. We also identify 
funds in our data base that claim ESG or sustainable investing 
as core to their investment approach. Second, our equity 
analysts use ESG as part of their approach to assessing 
investments.
    Finally, our sustained analytics division is a leading 
provider of ESG ratings and data. Let me try to be clear here. 
We believe proposals to encourage plan sponsors to consider ESG 
information as part of a prudent process for selecting plan 
investments such as the Department of Labor's proposal from 
last fall, are consistent with common practices that asset 
managers use to integrate ESG considerations into their 
investment processes and selections.
    An ESG risk analysis can be part of any premium investment 
analysis and does not need to be called out for special or 
unique scrutiny. Indeed, many asset managers view ESG risk as a 
pecuniary matter that is fundamental to evaluating the likely 
risk-adjusted performance of an investment.
    This view has become widespread in the past decade, and 
especially the past 5 years, as ESG issues are increasingly 
seen as potentially material to the performance of an 
investment, and as more robust ESG data and analytics have 
become available allowing asset managers greater insight into 
material ESG issues.
    To be more specific, many firms have some financially 
material amount of exposure to climate risk, but those without 
a plan to transition away from fossil fuels, or with physical 
assets vulnerable to severe weather risk may be caught flat 
footed in the face of new regulation or environmental 
realities.
    Or to take another example, companies with poor human 
capital management may find it very difficult to retain or 
attract talent to remain competitive in the future. They could 
also face regulatory risks and reputational risks from 
customers.
    Beyond managing the ESG risks, participants themselves may 
want investment options that align with their personal values, 
especially around sustainability related issues.
    To the extent that plan sponsors can offer options that 
support these values without sacrificing risk adjusted returns, 
and over the past half decade data shows many sustainably 
oriented funds have performed well, such investment 
alternatives could encourage people to save, or save more for 
retirement, furthering the overall goal of enhancing U.S. 
retirement security.
    I just want to take a moment to talk about the State of ESG 
and 401K plans today. Plan sponsors appear to have shied away 
from considering ESG information and analysis in part because 
of regulatory uncertainty. In doing so, sponsors have left the 
U.S. defined contribution system in the aggregate tilted toward 
investments with more, rather than less ESG risk.
    Specifically, just 4 percent of investment options and 2 
percent of assets are in strategies with the lowest levels of 
ESG risk, but 10 percent of all strategies rated by Morningstar 
are in this category. Unless retirement plan sponsors are 
convinced that ESG risks are overstated, they might want to 
reexamine their investment choices through an ESG lens.
    When some regulatory uncertainty appears to have a real-
world effect, exposing retirement savers to more risks than 
might be prudent. I also want to note that in our study we find 
about 60 percent of assets that are not in target date funds, 
but other designated investment alternative assets, are in 
actively managed funds.
    Many of those managers are considering ESG risks, but some 
of them are not, so just to address what Mr. Biggs said, I do 
not think it is the case that all plans are using passive 
investments today. Thank you.
    [The prepared statement of Mr. Szapiro follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    

    Chairman DeSaulnier. Thank you to all the witnesses. Thank 
you for being timely in your oral comments. Under Committee 
Rule 9(a) we will now question witnesses under the 5-minute 
rule. I will be recognizing subcommittee members in seniority 
order, again, and to ensure that the member's 5-minute rule is 
adhered to, staff will be keeping track of time. Please be 
attentive to the time, wrap up when your time is over, and re-
mute your microphone.
    As Chair I will begin by now recognizing myself for 5 
minutes. Ms. Handorf, when ERISA was enacted with overwhelming 
bipartisan support in 1974, Congress made clear that its 
legislative purpose was to provide ``appropriate remedies, 
sanctions and ready access to the Federal courts.''
    Could you briefly explain how binding arbitration 
agreements and class action waivers undermine that core tenant 
of ERISA?
    Ms. Handorf. Yes. They definitely do because they do not 
give access to the Federal courts. They make it almost 
impossible to--for participants to seek relief to the plan as a 
whole, which is generally what you would want to seek if you 
were trying to correct a fiduciary misconduct with respect to 
an investment. In that way it really--it is designed really to 
keep people out of court, rather than to give them access to 
court.
    Chairman DeSaulnier. Thanks. In my home State of California 
our mental health parity law prohibits insurance companies from 
including so-called discretionary clauses in health care 
contracts, health plan contracts. This is an important 
protection in my view that ensures consumers have a fair review 
of their benefit claim if necessary, in court.
    Ms. Handorf, how do discretionary clauses make it harder 
for individuals to access their health benefits? Why is it 
important that Federal ERISA statute be amended to provide 
nationwide protections for plan participants considering 
actions like we did in California?
    Ms. Handorf. Well, I think that when you see the 
discretionary, the arbitrary and capricious or differential 
standard review in a benefit claim, the court is really looking 
to see whether there is anything that supports the 
administrator's decision to deny benefits rather than looking 
to see whether they are really entitled to benefits.
    The evidence indicates that a number of courts have said 
that they would have granted benefits under de novo standard 
review, but because it was a discretionary standard, they 
deferred to the decisionmaker, so that really does deny 
participants their bargain for benefits.
    The other thing is that California is a great example of a 
State that has concluded that these are not good for 
individuals covered by insurance policies. The problem is that 
only applies to insurance policies issued in the State of 
California, and the other states that have adopted those 
provisions. It also only applies to fully insured plans, not 
the self-insured plans, and in order to have a uniform standard 
between insured and uninsured plans, and between--or insured 
and self-insured plan, and between all states, you really do 
need an ERISA standard.
    Chairman DeSaulnier. Thanks so much. Mr. Biggs, in your 
written testimony you say that the California Public Employees 
Retirement System, CALPERS ``costs its participants over 3.6 
billion in investment gains over two decades,'' by choosing to 
divest from tobacco products. You also mentioned that it 
undercuts its fiduciary duty by not maximizing the financial 
benefits for its participants.
    This was based on an article from Wilshire Associates. As 
you are undoubtedly aware, that same firm, investment 
consultant firm Wilshire Associates, said that the 3.6 billion 
dollars claim it updated its analysis from that number, and 
said that CALPERS had done better by having a tobacco free 
equity portfolio.
    In fact, they said that CALPERS gained 856 million by 
holding no tobacco stocks between January 1, 2017, and June 30, 
2020, because those shares lagged behind market during that 
period. Are you aware of that, and I am respectful of the 
balance here of responsibility to the investment, but also 
doing that in the context of short, mid-term and longer-term 
investments? Would you care to respond?
    Mr. Biggs. Sure. Thank you very much, Mr. Chairman. The 3.6 
billion dollars figure I cited has been widely discussed, so it 
was not reliant entirely on Wilshire. I was not aware of 
Wilshire's more recent research looking at that. There is a 
broader picture though of looking at economically targeted 
investments from State and local pension plans. I would refer 
you to this study from the Center for Retirement Research at 
Boston College, but others have done it as well.
    Economically targeted investments have a much longer track 
record than ESG investments, but they're qualitatively similar, 
and those have tended to be associated with lower returns with 
pension plans that undertook them. What I was trying to do was 
highlight the risk of this, that they have a duty to purely the 
financial returns of their participants, and in these cases, 
they took choices which seemed clearly skewed by a social 
desire to get out of tobacco stocks.
    Regardless of how that turned out in the end, the research 
does tend to show that those types of investments are 
associated with lower returns for State and local pensions. 
Those are the ones that have used these sort of economically 
targeted investments most commonly.
    Chairman DeSaulnier. I appreciate that. Having been on a 
Retirement Board when I was a county elected official during 
that period of time, I appreciate that, but the dynamics of 
investments as I'm sure you would agree trying to get this 
balance, and I would include the health care costs, although 
the legal definition as you mentioned we have to be mindful of 
it. With that, I would now like to recognize--I am told I 
recognize our distinguished Ranking Member of the full 
committee, Ms. Foxx, for her questions.
    Ms. Foxx. I thank you distinguished Chairman for 
recognizing me. Dr. Biggs, I am going to followup a little bit 
on the line of questioning. ERISA requires retirement plan 
fiduciaries to act solely in the interest of plan participants 
and beneficiaries for the exclusive purpose of providing 
benefits to participants.
    In 2014, the U.S. Supreme Court ruled unanimously that 
under ERISA the term ``benefit'' refers to financial benefits 
and does not include non-financial benefits. Does the Biden 
administration's recent proposed rule on ESG investing comply 
with the Supreme Court decision? How does the proposed rule 
treat non-financial factors?
    Mr. Biggs. Well, thank you, Congresswoman. Yes, as I made 
clear in my written testimony, both the written word of ERISA, 
and then the Court entered various Court interpretations showed 
that the obligation of the fiduciary is solely to the 
participant, and solely to the participant's pecuniary 
benefits, meaning the financial benefits they get from the 
investment.
    Those other factors such as environmental social governance 
economically targeted investments, those can only matter to the 
degree that they do not detract from the financial returns to 
participants.
    Ms. Foxx. Thank you for--oh sorry, I was going to say thank 
you for restating that. I have a couple other questions. Let me 
try to get those in, and then I will let you come back. In 
September, Pension Benefit Guarantee Corporation stated that 
while insolvency has been delayed, its insurance program for 
multi-employer pension plans is still likely to go insolvent.
    Moreover, plans receiving lump sum payments from PBGC may 
still fail. This is happening despite the taxpayer funded 
bailout of underfunded and failing plans in democrat so-called 
American Rescue Plan. Should plans that receive a bailout from 
PBGC, which have already failed to keep their promises to 
retirees, are allowed to continue making new promises of 
benefits? Should Congress stop plans from digging a deeper 
hole?
    Mr. Biggs. With a single employer traditional pension 
accompanying off the pension plan, if that goes insolvent in 
general the plan is frozen, meaning the plan cannot continue to 
promise new benefits in general, but employees would be 
switched to a 401K plan, then you figure out the liabilities of 
the plan, what can it continue to pay? What can it afford to 
pay?
    What happened to multi-employer pensions is something very 
different, and what that was allowed was that the pensions 
could continue promising new benefits despite the fact that 
they are going to require at least 100 billion dollars in new 
Federal money simply to pay benefits they have already accrued.
    Moreover, they are continuing to promise benefits that in 
the future those plans will not be able to pay because the 
Federal money is not going to be sufficient to keep them going 
indefinitely. I think the multi-employer situation, both the 
initial regulation where multi-employer plans were not required 
to fund sufficiently, and then the bailout, I think to be frank 
Congress made a botch of it from the beginning.
    I think they should recognize that problem, freeze the 
plans, and then build toward the future. What we have now is 
not fair.
    Ms. Foxx. Thank you very much. Thanks for reiterating that. 
Dr. Biggs a provision in the Chairman's discussion graph 
requires an individual to receive the written, notarized 
consent of his or her spouse before taking a distribution from 
the retirement plan. One of the many benefits of the 401K-type 
plan is the flexibility it provides participants to take 
distributions in times of emergency, which we witnessed during 
the COVID-19 pandemic.
    Does the discussion draft adequately consider instances 
when a notarized consent may be impractical, or harmful to 
participants, including for wives who need emergency access?
    Mr. Biggs. Thank you. I have seen cases like the one raised 
by Ms. Matsui where one spouse would attempt to drain an 
account, and that's a real problem. At the same time though you 
could have cases where say in spousal abuse where you know 
would the abused spouse be required to get her abuser's 
consent?
    More generally, DC plans like 401K's, withdrawals like that 
are much, much more common than with traditional pensions. I 
just think this needs additional study to quantify how often 
these issues come up, and what are the best ways to balance 
things. I just do not think there is a perfect you know cookie 
cutter solution.
    Ms. Foxx. Sure. Now I got you offtrack in your first 
answer. Is there anything else that you want to add to that 
that you didn't get a chance to say?
    Mr. Biggs. Well, I think the material effect of the 
regulations, or legislation on ESG is going to need to push 
fiduciaries to over consider ESG factors. Not to consider 
allowing to the extent that it is allowed on the paper of the 
law, but to over consider them, and I think that is 
inconsistent to the spirit of law, but also could reduce 
financial returns.
    Ms. Foxx. Thank you very much. Thank you, Mr. Chairman.
    Chairman DeSaulnier. My pleasure, Ms. Foxx. I will now 
recognize Mr. Courtney for 5 minutes.
    Mr. Courtney.
    Mr. Courtney. Thank you, Mr. Chairman, and thank you to our 
witness. Again thank you, Mark, for mentioning the Work Act in 
your opening remarks which is a bill that myself and Mark Pocan 
have introduced along with Brian Fitzpatrick from Pennsylvania 
to help promote ESOPs, employee stock ownership plans, which is 
you know a great model for businesses that allow their workers, 
their employees to become co-owners, and that creates obviously 
a really healthy incentive in terms of people's buy in to you 
know the success of companies.
    It also provides a really extremely strong retirement you 
know option in terms of stock ownership. The data shows that 
ESOPs outperform 401Ks by a wide margin and this bill, which is 
a very benign bill, will allow the Department of Labor to 
really give technical assistance to companies who want to make 
that conversion, purely voluntary, but there clearly is a need 
to increase people's understanding of ESOPs, and that bill will 
help provide it.
    I will however, like to just pivot for a second to the 
issue of mental health parity. Again, I always hear along with 
a couple of the other veterans on the committee when we passed 
the Wellstone Bill that created the Mental Health Parity Act. 
In one of the provisions was to have the Department of Labor 
every 2 years give a report in terms of how well we are doing.
    The report that was just finished by the Department of 
Labor unfortunately you know had a lot of shocking data in 
terms of the number of violations by health plans and insurers. 
I would like to ask Ms. Handorf again, just sort of again your 
take on that report, and you know some of the suggestions 
including you know beefing up enforcement.
    Don Norcross's bill I think is really going to go a long 
way to helping us with that, but again maybe you can just sort 
of comment a little more directly in terms of that report.
    Ms. Handorf. Yes, I think that the report is rather 
shocking in the non-compliance. It is not shocking really when 
you look at the employer's sponsored health care in general 
because really what you see is a system in which insurance 
companies either acting as insurers or third-party 
administrators to plans, are really running these plans, and 
the employers are really not paying a whole lot of attention to 
compliance.
    They think that once they sign the contract that is the end 
of it. If the Department of Labor can deal with the insurers 
and the third-party administrators directly, they will be able 
to get compliance in all of the plans that are administered or 
insured by those third-party administrators. That will be much 
more effective than to going to each individual employer and 
trying to get compliance.
    I also think that the penalty provisions will put the 
employers on notice that they need to be paying attention to 
what is in their plans, and that if they do not, they are going 
to get a financial penalty or if you give--make whole relief, 
the ability for the Department to make whole relief for 
violations, that would be a further incentive because there 
will be some financial harm that will come along to an employer 
that does not comply with the statute, so I fully support those 
recommendations.
    Mr. Courtney. Great. Thank you. I mean one thing that I 
think, you know, the shared experience before COVID--of the 
opioid crisis, and what that has really done in terms of 
creating tremendous demand for substance abuse and mental 
health services.
    My experience in terms of talking to substance abuse and 
mental health providers is that they really struggle to a much 
greater degree interacting with private health plans, versus 
Medicaid. It just kind of screams out that we really cannot 
allow that kind of disparity. The COVID behavioral health 
overhang is just going to aggravate that situation even more.
    Again, I mean this is not a very discrete problem. This is 
a problem that is actually going to be growing in the wake of 
COVID, and obviously the opioid addiction has not disappeared. 
Maybe again, based on your experience whether or not that is 
what you are seeing in that sector of health care.
    Ms. Handorf. I am seeing it in that sector of health care, 
but I think that is across the board with not just mental 
health parity. I think that the inefficiencies in our current 
system have driven up prices, both for employers and for 
participants who are paying premiums and high deductibles, and 
I think that while transparency is a really fine thing, you 
really need employers to feel compelled to look at how their 
insurers, and third-party administrators are administering the 
plans.
    If they did, they would find a lot of things that would be 
rather shocking. I think that we have to have a vibrant 
enforcement of those provisions, and that comes by giving the 
Department more authority, and also strengthening private 
enforcement.
    Mr. Courtney. Thank you. I yield back.
    Chairman DeSaulnier. Thank you, Mr. Courtney. We will now 
recognize the ranking member of the subcommittee, Mr. Allen.
    Mr. Allen. Thank you, Mr. Chairman. Dr. Biggs, in 2020 the 
Trump administration Department of Labor issued a final rule 
prohibiting ERISA retirement plan fiduciaries from 
subordinating the financial interests of workers retirement 
savings to other unrelated or collateral objections such as 
investing in investments based on environmental social 
governance or ESG factors.
    Why is it important that investment decisions be based only 
on financial factors that are relevant to the risk of return on 
an investment?
    Mr. Biggs. I think it is important because an ERISA plan, a 
401K, is generally superior as a retirement vehicle to 
something that is not covered by ERISA, say an IRA. You want to 
keep people participating in those plans, but if they do not 
feel as if their best interests are being looked after, they 
may choose to go elsewhere.
    We want to have people invested in these plans. They do not 
clarify a little bit we see disagreement on some of the ESG 
factors. I am not sure how much there really is. I do not 
disagree that these factors could affect the profits generated 
by a firm. If you have a firm that is vulnerable to these 
factors, the CEO, and the management firm they have the 
financial incentive to address as best they can.
    Next, existing financial market participants, there are 
hundreds of millions of people investing in these firms. They 
then will weigh in, and they will not pay as high a price for a 
firm that has not addressed these factors. At that point you 
have really gotten on top of that, I think. Considering on top 
of that you are assuming that the fiduciaries were being pushed 
into these considerations by ESG regulations.
    You are assuming they know something that both the managers 
of the firm and the investors in the market done. If there is 
one thing we have learned over the past 20 to 30 years, it is 
that active management often falls short of simply investing in 
the market index. ESG is active management like anything else, 
and so I think there is just a risk of not doing as well for 
your clients.
    Mr. Allen. Right. It looks like just focusing on the actual 
financial returns detects savers and retirees, and they rely on 
these plan fiduciaries to make the decisions on their behalf, 
and it is important that they have the freedom to do this 
versus some one size fits all top down rule from the Department 
of Labor saying oh, okay, if you are going to get tax deferred 
retirement savings you have got to have so much percentage in 
this.
    I mean this administration has already been picking winners 
and losers, so I mean don't you think that the best protections 
for the plan holders is to have the freedom to use their 
fiduciaries to give them the proper advice, rather than the 
Biden administration?
    Mr. Biggs. Sure. I mean I have no doubt if proponents of 
ESG based investing think they are doing the best thing for the 
planet, the best thing you know for workers, the best thing for 
Governors. I do not doubt their motives on that. At the same 
time though, I also do not doubt that the effect of these 
regulations is going to be to push fiduciaries in a direction 
that may overcompensate for this.
    Perhaps I can just touch back on a question that came up in 
Chairman DeSaulnier's questioning earlier looking at CALPERS, 
they are economically targeted investments. I said that over a 
20-year period they had lost 3.6 billion dollars according to 
Wilshire. Wilshire, quoting the Chairman, has said that over 
the past 3 years they had made 850 million dollars from this.
    What that nets out is over 20 years they still lost several 
billion dollars by investing in tobacco. That was very clearly 
driven by a desire to sort of get out of the business of a 
harmful product. I do not blame people for wanting to do that, 
but that did come at the expense of the participants. I just 
think that the record overall of doing these things of actually 
benefiting the participants is not very strong, but that is in 
fact the standard.
    That is what ERISA says. If we want to change ERISA that is 
fine. The standard on there is it has to be in the financial 
best interest of the participants, and I think too much 
emphasis on ESG factors is going to detract.
    Mr. Allen. Well, you know obviously the Biden 
administration signed the executive order protecting public 
health and environmental and restoring science to tackle the 
climate you know crisis, that executive order directs all 
Federal agencies to review, revise and rescind guidance that is 
consistent with prioritizing environmental justice and the 
creation of well-paying union jobs.
    That is what we are up against. Unfortunately, I am out of 
time. Hopefully another member of the committee can follow 
through on this question. With that, thank you Mr. Biggs, and I 
yield back.
    Chairman DeSaulnier. Thank you, Mr. Allen. I will now 
recognize the gentleman from New Jersey, Mr. Norcross, for 5 
minutes.
    Mr. Norcross. Thank you, Chairman and thank you for holding 
this hearing. Since I walked through these doors back in 2014, 
we have been focused on the golden years. You work your whole 
life, you play by the rules, you expect at the end that your 
retirement will take you through those golden years. 
Unfortunately, we found there are many impediments to that.
    Certainly, when we look at a study by CNN Money, the 
percentage of workers in the private sector, through its own 
retirement account, it is a defined pension benefit, it is down 
to 4 percent. Down from 60 percent. That is how much that has 
changed since 1980.
    Today, only about 14 percent of companies have a combined 
of both types, instead they have a 401. In the 401 there is 
typically not an option for workers to replicate that what we 
call a lifetime income option. A feature of defined benefit 
pension that we all know well. Mr. Walberg and I have 
introduced a bill the Lifetime Income for Employee Act that 
allows that to happen.
    Mr. Szapiro, with the decline of defined benefit pensions 
is there a concern that people with 401s could retire and 
outlive what they have saved?
    Mr. Szapiro. Yes absolutely. I am sorry.
    Mr. Norcross. Just followup to that and speaking of that, 
is it a good idea to increase lifetime income for 401s?
    Mr. Szapiro. Thank you so much for the question. This has 
been a perennial issue for decades you know finding ways to 
ensure people in defined contribution plans they do not outlive 
their savings.
    I fully agree that policy that could help more workers 
hedge this longevity risk could help more retirees achieve 
their retirement goals, and that this you know when you look at 
the studies out there, almost all of them will show many, many 
Americans would benefit from an increase in guaranteed income 
in retirement, and that's only going to increase as more and 
more people exit the defined benefit system.
    It is the wave of defined contribution only workers begin 
to retire. There is a reason they call this lack of 
annuitization the annuity puzzle. It has been a very hard 
problem to solve, and I do think it is important to consider 
that retirees have a wide variety of lifetime income needs 
depending on their preferences--requests to maintain liquidity, 
their savings levels, the replacement rate that they will 
receive for Social Security and other factors.
    Nonetheless, providing greater access to lifetime income 
solutions is incredibly important. Our view is to the extent 
that it can come with education, particularly personalized 
education so that participants can feel confident that the 
annuity recommendation, especially a recommendation into an 
illiquid, permanent election, into an annuity product is right 
for them.
    We think if participants have that confidence there would 
be a big uptick. If those options were available inside defined 
contribution plans instead of 401K plans. This is a very 
important issue, and it is only going to get more important.
    Mr. Norcross. Thank you for your response. Certainly, we 
want everybody's golden years. I want to thank the committee 
for coming together in bipartisan. We might have some different 
nuances, but we all agree to work hard you should be able to 
retire in those golden years.
    A report that Joe Courtney was just talking about is Parity 
Enforcement Equity Act. It has been on the books for a long 
time. You talked about some of the enforcement capabilities in 
the bill that is included, and we appreciate you Chairman 
putting that in The Parity Enforcement Act. If you could define 
for us and walk through what happens to a national insurance 
company who does not include that? Ms. Handorf, if an insurance 
company elects not to provide that mental health, as bad as it 
is out there right now in the pandemic, what happens to that 
company?
    Ms. Handorf. The insurance company?
    Mr. Norcross. They get caught.
    Ms. Handorf. Nothing.
    Mr. Norcross. They have to pay for the bill, right?
    Ms. Handorf. Well, the only thing that happens is they have 
to comply, have to pay for the benefits if it is a fully 
insured plan. If it is a self-insured plan the employer has to 
pay the benefits, but that is basically it. Know there are so 
many barriers to participants who want to enforce their own 
rights to mental health parity.
    You have to have a lawyer. You have to go through an 
appeal's procedure in which your lawyer does not represent you 
or does not get paid for it. You are limited in what type of 
information you can get, and what information you can present. 
You have anti-assignment provisions in plans, all of those are 
barriers to participants getting their benefits paid.
    On top of it they are dealing with mental illness in some 
cases. All of those things need to be fixed in order for the 
system to work. Strengthen employee's rights and strengthen the 
Department's rights to enforce.
    Mr. Norcross. It is time to put some enforcement. Nobody is 
looking for people, but my gosh, if we have not figured out 
mental health is just as important as physical health, we as a 
country are going to face in terms of that. I yield back.
    Chairman DeSaulnier. Thank you, Mr. Norcross. We will now 
recognize Mr. Walberg.
    Mr. Walberg. Thank you, Mr. Chair, and thanks to the panel 
for being with us on an important topic. Whenever this 
committee has approached the subject of retirement policy we 
have done so generally in a spirited bipartisanship. That 
spirit still exists, and is highlighted by the Life Act, which 
was introduced by my colleague Representative Norcross and 
myself, as he has indicated already.
    The Life Act will help guard against savers outliving their 
retirement savings by expanding the accessibility of products 
that provide guaranteed life income. Approximately 10,000 
Americans turn 65 every day, many of whom are expected to live 
up to 30 years in retirement. If we are to address anxiety 
workers and retirees feel about their ability to accumulate 
sufficient income that will last throughout their retirement 
years, we must continue the bipartisan progress Congress has 
made to improve defined covered contribution system.
    However, I have significant concerns about some of the 
other approaches we are discussing today, and the policy 
priorities of the current administration. It appears the 
Department of Labor's looking to revive its flawed 2016 
fiduciary rule, a regulation which would have made it 
drastically more difficult and costly for families to save for 
retirement.
    Dr. Biggs, should the DOL revive the fiduciary rule? How 
would lower to middle income savers be impacted?
    Mr. Biggs. Well, the likely impact of reinstating the 
fiduciary rule is it would raise the cost of financial advice, 
particularly, or in a most salient way for low-and middle-
income savers. The reason is that currently a part of that 
advice is paid through fees the fiduciary receives, or the 
participant receives otherwise, but those fees are going to 
have to be charged out front.
    Back in 2013, the United Kingdom had a very similar 
regulation where advisors would have to act as fiduciaries, and 
several studies that I have seen there have shown the intended 
increase to cost of financial advice for low-income savers. It 
did so in a way, it raised that upfront cost more than those 
savers were willing to pay.
    Over in the UK it is called the guidance gap, where you 
know for some people, it worked very well. For high income, 
people still got the financial advice, but it made it harder 
for low-income people to do it. In theory, the fiduciary rule 
sounds great, but we always have to think of what are the other 
effects of this.
    We do not want to cut other people off from financial 
advice. I think it is just thinking about how we balance these 
concerns.
    Mr. Walberg. Yes, we definitely want to get people started. 
If we can get started it is kind of like potato chips, you just 
keep eating, and to make it difficult and costly. I do not get 
it, and I believe that is why this rule was invalidated by the 
Federal Court in 2018. How will the Department be able to 
revive it even though it was blocked by the Court?
    Will the Department be flouting the Court's ruling do you 
think?
    Mr. Biggs. I am going to credit you in the future for the 
potato chips analogy, that is a very good one. I am a policy 
person, economist, not an ERISA lawyer. You want to take that 
for what it is worth, but the Court ruling in the original 
fiduciary rule, which I think came out in 2018, simply said 
that the DOL had gone beyond their legal rights in doing that.
    I think if you wanted to go in that route again, I think 
you would have to do it through legislation, rather than 
through regulation. In general, that is how I think things 
should be done. In Congress, people should agree on how you 
want to do that. That will tend to produce compromise, it will 
be more lasting over time, than having different 
administrations changed regulatory rules.
    Mr. Walberg. The Trump administration issued a revised rule 
regarding investment advice in 2020, and full compliance with 
that rule does not go into effect until June of this year. In 
your view, Dr. Biggs, does it make sense for the Department to 
pursue a new fiduciary rule when full compliance with the 
current rule has not occurred? Would not it be wise to see how 
the current rule is working before you try to change it?
    Mr. Biggs. Now, I would stick with what we have, see how it 
plays out, and then reconsider in the future. I think just 
trying to jump back in on something which many people think 
would be harmful, but also is invalidated in Court, I think you 
are just setting yourself up for trouble, so let us just see 
how things go, study it, and then look to improve it in the 
future.
    Mr. Walberg. I concur and seeing I have very limited time I 
will yield back.
    Chairman DeSaulnier. Thank you, Mr. Walberg. We will now go 
to another member of the Michigan delegation, Ms. Stevens you 
are recognized.
    Ms. Stevens. Well, thank you so much, Mr. Chairman. I could 
not be more grateful for today's just incredibly topical 
hearing, and I really want to commend my colleagues. 
Congresswoman McBath, for her discussion--direct bill that is 
in formulation, and I know she is working hard on that. I got a 
chance to talk with her about it.
    Obviously, Congressman Norcross, for his work alongside Mr. 
Walberg for the Lifetime Income for Employees Act as well. We 
are working on these annuity contracts, which is just going to 
be very important. Ms. Matsui, in particular, thank you for 
your testimony today, to everybody, all of our distinguished 
witnesses.
    Ms. Matsui, in particular you noted that women confront 
economic challenges in the workplace, pay and retirement 
savings inequities. Certainly, in my home State of Michigan it 
has been reported to just a recent March 2021 report from the 
Michigan Bureau of Labor and Market Information and Strategic 
Initiatives that women in Michigan experienced a sharp drop in 
employment in April 2020 due to the pandemic.
    What comes next? Loss of retirement savings. This was 
documented to be a longer period than it was for men, and 
frankly women have just failed to recover. As the report notes 
that between February and December 2020, roughly 136,000 women 
left the labor force, and unfortunately this is likely to have 
a dramatic impact on lifetime earnings and retirement savings.
    Ms. Matsui, is this reflective of what is been happening 
nationally when it comes to the pandemic's impact on women?
    Ms. Matsui. Thank you very much for the question, 
Representative Stevens. We have in fact seen significant 
employment impacts on women from the pandemic, so over 1.8 
million net jobs have been lost since February 2020, and I will 
also note that nearly a million women have left the labor force 
altogether.
    One of the things about retirement is that it is premised 
on the time value of money. The assumption is if you start 
early, if you continue to invest, the cumulative impact of just 
continuing to contribute and interest means that you will have 
a nest egg at retirement. Unfortunately, the converse is also 
true. When there are disruptions to employment, when people are 
not able to save or to contribute, that sets retirement 
offtrack.
    There is I think a significant concern that the impacts of 
the pandemic will be to further derail women's retirement 
security, and for some women later in their careers it may be 
too late to make up the difference. You know when people are 
kind of at the height presumably of their income, that is the 
time when they are supposed to add additional savings, 
additional cushion.
    If they are not able to do that, and in fact, if they have 
been having to rely on or withdraw those retirement savings, 
their own retirement can be delayed or indefinitely deferred.
    Ms. Stevens. Yes. I noticed your testimony cites research 
suggesting younger workers entering the job market in a period 
of high unemployment may experience reduced earnings for up to 
10 years as well as reduced job mobility. Could you elaborate 
on that based on what you were also just talking about?
    Ms. Matsui. I am happy to. Thank you for the question. This 
is really something that we saw you know kind of for 
millennials after the last recession. They left school with a 
lot of debt. They found you know jobs at lower pay with less 
mobility, and it really is a challenge, especially for workers 
at the beginning of their career when they are paying off 
student loans.
    Their salaries are lower. They cannot save for homes. They 
cannot pay off their debt. They may defer having children. Of 
all of those things, it seems so far off to start saving for 
retirement that they do not begin to accumulate the savings 
that they can, that they need to for the length of their 
careers.
    Just to the extent that we are seeing disparities for pay, 
for women across the board, as soon as they start in the labor 
force and throughout their lives, there is also going to be a 
disparity for women, even among younger workers.
    Ms. Stevens. Yes, sure. Let me just to conclude on a point 
as well because I served in the U.S. Department of Treasury for 
a number of years and we did a fair amount of financial 
education, particularly around retirement. I remember when we 
rolled out the My IRA and things along those lines that have 
been really important.
    We do need to not only educate ourselves as Members of 
Congress, particularly around some of these disparities, but we 
need to make sure that we have got transparency for the 
American people. With that said, Mr. Chairman, we hope the 
American people are tuning in today for our hearing, our 
subcommittee hearing, and I yield back the remainder of my 
time.
    Chairman DeSaulnier. This subcommittee always gets a big 
crowd of yours. With that, we will recognize the gentleman from 
Indiana, Mr. Banks, for 5 minutes.
    Mr. Banks. Thank you, Mr. Chairman. We cannot talk about 
retirement security without talking about social security, and 
I want to turn our attention to that for a moment as we expect 
social security to be insolvent by 2033. In fact, the social 
security and disability insurance programs experience a three 
trillion dollar increase in their unfunded obligations since 
just last year.
    Dr. Biggs, what would happen to benefits for current social 
security recipients once the program becomes insolvent?
    Mr. Biggs. Well, thank you, Congressman. I would say at the 
outset that if social security was handled with the same level 
of bipartisanship that private retirement savings are, I think 
we could have fixed the problem. There really is a contrast 
between how private retirement savings initiatives work with 
tons of bipartisanship and social security is much more 
contentious.
    People warn of a retirement crisis, which I think is just 
in general entirely unwarranted. If social security becomes 
insolvent, the trust fund runs out, legally it can only pay 
benefits with the money it collects, that will imply an across-
the-board benefit cut of somewhere north of 25 percent for not 
just new retirees, but existing retirees, the disabled 
survivors. That is where you get the retirement crisis from, so 
that will be a very concerning event.
    Mr. Banks. Thank you. As you know, many Americans receiving 
benefits today cannot afford to have their benefits cut due to 
rampant inflation and soaring costs. Dr. Biggs, what will 
happen to benefits for our children and grandchildren if 
benefits for current social security recipients are not 
lowered?
    Mr. Biggs. It is a little bit of a complex issue in the 
sense that social security is a pay as you go program, and the 
taxes I pay today are not saved for me, they go straight out 
the door to pay for my grandparents or whatever. Really, the 
benefits available in the future are going to be premises on 
the wage base in the future, and the taxes that are levied 
then.
    I think the key thing is we want to get this on a 
sustainable track. You do not have to have cliffs where at some 
points some dramatic change happens. We have known for 30 years 
precisely what is going on with social security. You read an 
article in the New York Times today it is essentially the same 
as an article in 1990.
    What is lacking in information was lacking as political 
will. We should tell people that the deal you were promised 
cannot be held up. You either have to pay more in, or get less 
out, and people can make their choices, but we just need to be 
honest upfront with people and tell them the sooner you do this 
the easier it is going to be.
    Mr. Banks. Social security's unfunded obligations are now 
an astounding 20 trillion dollars. This means that to fund all 
obligations without reducing benefits, every single American 
household would have to be pay $154,000.00. Dr. Biggs, is it 
economically viable to simply raise taxes to offset social 
security obligations and interest? Who would bear the main 
burden of such a proposed tax increase?
    Mr. Biggs. Well, you know, yes in theory you can. I mean 
there are countries that is--it is very, very, high social 
security taxes. The issue though is first you know raising the 
payroll tax, that is a tax on labor. That is going to reduce 
incentives to work. It is less money particularly for lower 
income people to save for retirement on their own.
    This is a--it is a costly kind of thing to do. My own view 
on this is that we should maintain and strengthen the safety 
net curve for low-income Americans. That is not very expensive 
to do. Most other countries do it. What we need to do is 
middle-and upper-income people need to rely more on their own 
savings, less on social security in the future.
    That does not mean a dramatic cut. That does not mean 
anybody is zeroed out, but it means we just transition to a 
system in the future where middle-and upper-income people are 
saving more on their own, relying less on a tax and transfer 
system from the government. Many countries do that, you know 
Australia, United Kingdom. It is not crazy, but it actually 
works.
    Mr. Banks. Give us one more piece of advice, Dr. Biggs, 
with the minute that we have left. You talked about 
bipartisanship, what is that one bipartisan solution that we 
need to take to reduce the burden on American taxpayers to 
reform social security and do what we need to do?
    Mr. Biggs. That is the tough one. If we were back in the 
late 1990's, you had a whole number of truly bipartisan bills 
that could have passed a bipartisan plan then. Today, if you 
look at something like the Social Security 2100 Act that has 
shifted to not just fixing a problem entirely with tax 
increases, but doing more than that, raising taxes above what 
is needed to pay for full benefits, and the increasing benefits 
further.
    I think everybody needs to get a little more realistic 
about what they can actually pass. A completely republican plan 
will not pass. A completely democratic plan will not pass. You 
really do need to meet in the middle, and that is where you go 
have lunch with your colleagues and see what they are open to.
    Mr. Banks. All right, thank you very much. I yield back.
    Chairman DeSaulnier. Mr. Banks and Mr. Biggs, I will be 
happy to go to lunch with both of you. We will recognize Ms. 
Wild.
    Ms. Wild. Thank you, Mr. Chair. I would like to recognize 
you as well as our colleague representative Lucy McBath for 
your leadership on the important retirement and health care 
issues being considered by the subcommittee this morning.
    I am proud that the legislation I plan to introduce is part 
of Representative McBath's discussion draft legislation. The 
Department of Labor requires 401K plans to provide workers with 
information about the fees that they pay on their retirement 
investments.
    Several years ago, our committee asked the GAO to look into 
this information and assess its usefulness and last August the 
agency issued an eye-opening report. It found that almost 40 
percent of 401K plan participants do not fully understand the 
fees they are paying on their retirement accounts, and many are 
unaware that they are even paying fees.
    Clearly there is more work to do here to help workers 
better understand these fees, and that they are paying fees on 
their retirement investments. I am leading a bill to have the 
Labor Department review these rules and explore how they can be 
improved. I think it is a straightforward common-sense idea 
that will benefit workers in all of our districts and make this 
work easier for employers and plan sponsors.
    With that, Mr. Szapiro, I appreciate that your testimony 
focuses in part on retirement plan fees. Based on your 
understanding of the data, do you agree with GAO's findings 
that far too many Americans do not understand the fees that 
they are paying, and that the Labor Department should give the 
relevant regulation a fresh look?
    Mr. Szapiro. Thanks so much for the question. Yes, I would 
have a hard time disagreeing with my former colleagues at GAO 
on this study. I think it is very clear, and we see that also 
through practical experience. Morningstar has long advocated 
for increased fee transparency and to retirement plan lineups. 
I think a review of these 404A5 disclosures that participants 
are supposed to get and understand are certainly called for.
    I would also note that Congress could consider directing 
the Department to review the publicly available fee disclosures 
that plans provide, and that's on the Form 5500, and that might 
help plan sponsors, regulators and EBSA itself, and third party 
benchmark providers, better understand the fees in the lineup 
that the plan is offering, and that would ultimately help the 
sponsors to assess whether those are reasonable and improve 
plans for all participants.
    I just want to say you know this discussion around fees. It 
is not an academic debate. We put out research this morning 
looking at the variance in fees across different plans, and 
there are some plans that are quite expensive, there are a lot 
that are quite good, and it is really important that 
participants understand what they are paying, where they sit, 
particularly as they make decisions around rollovers and the 
like. This can really materially impact their future nest egg.
    Ms. Wild. In addition, your written testimony also details 
the difference in fees that are being paid, depending on the 
size of a retirement plan. That is that the larger the 
retirement plan, the less expense it is likely to be for its 
workers to invest for retirement. Is this correct? If so, would 
you agree with me that it seems to indicate for those Americans 
who work for a small business, it is even more imperative that 
they understand the fees they are paying.
    Mr. Szapiro. Yes, absolutely. I think that is absolutely 
the case. You know at the median the fees for people at smaller 
plans that are offered by smaller businesses could be almost 
double the median fee for those larger plans, and so it really 
is important for people to understand that what they pay for 
retirement may be dependent on their employer.
    I do want to note we see a lot of variability with small 
plans. There are some that are quite inexpensive, but a lot 
that are in that long tail. Most people are covered by large 
plans, that makes sense, but there are lots of people who you 
know may be paying quite a bit more than they think they are, 
and really need to understand that.
    Ms. Wild. Thank you so much. With that, I yield back.
    Chairman DeSaulnier. Thank you. We will now recognize 
Representative Fitzgerald for 5 minutes.
    Mr. Fitzgerald. Thank you, Mr. Chair. I just had kind of a 
quick one that I thought it might take some explanation, but 
Dr. Biggs, one of the provisions that Chairman Scott has in 
that discussion draft it prevents a spouse from taking a 
distribution from a retirement account without the knowledge of 
the other spouse.
    It does not seem--I thought it was odd that this was 
included, and I was trying to figure out why this would be--and 
it is kind of a strange precedent I would think. What I wanted 
to know is how frequently are retirement assets used by one 
spouse for non-retirement expenses without the knowledge of the 
other spouse? Is that something that happens? It is just 
something that kind of stuck out in the actual discussion 
today.
    Mr. Biggs. Well, thanks, Congressman. The answer is we do 
not really know, and I think I touched on this a little bit in 
my earlier discussion of this where I think it would be good to 
have better data to the degree it is possible on how this plays 
out. Perhaps there are some plans that already require this, 
maybe you can test how much it is happening.
    With all of these issues that we are thinking about, 
whether it is ESG, spousal consent, fiduciary role, these are 
not easy issues. The easy decisions have already been made by 
your predecessors. Now you get left with the harder ones where 
you are balancing the different priorities.
    I think with this I would just want to look further on it. 
With all of these I am concerned of the unintended 
consequences. We are trying to do the right thing, but then it 
may have bad effects we have not anticipated, so even more up 
front the better off we are.
    Mr. Fitzgerald. Yes, I guess that was my point in bringing 
it up was it appears that a lot of these areas there has either 
been some precedent set-in retirement planning in the past, or 
there has been kind of just a complete negligence in addressing 
these. Even though the draft looks fairly clear, there are more 
complex issues that could emerge as implementation happened. 
You think that is true?
    Mr. Biggs. Exactly. I mean this is just a more complex 
issue than when we are looking at traditional defined benefit 
pensions where you essentially make one decision now that these 
are people that could be taking loans, they could be taking 
emergency withdrawals, it is just a more complicated issue, I 
think.
    Mr. Fitzgerald. Yes, very good. I yield back. Thank you, 
Mr. Chair.
    Chairman DeSaulnier. Thank you, Congressman Fitzgerald. We 
will now recognize Congresswoman McBath.
    Mrs. McBath. Well thank you so much, Mr. Chair. Thank you 
to all of our guests who have joined us to talk about these 
really pressing matters. I have read all of your testimoneys. 
Know that hardworking individuals deserve to retire with 
security and dignity, and I am proud of the work that this 
committee has done to improve and secure the retirement 
benefits for millions of Americans, whether through the RISE 
Act, or through the saving of multi-employer pension plans, my 
colleagues and I really remain steadfast in our commitment to 
the American worker.
    I am pleased to continue that work with today's hearing, 
which is really focused in part on draft legislation that I 
plan to file in the coming weeks, and this common sense 
legislation truly adds you know further protections and 
clarification for benefit holders and financial managers, and I 
thank each of my colleagues such as Representative Wild and 
others, that have contributed to creating this really important 
package of bills.
    One of its key aspects is extending spousal protections 
that are currently available for traditional defined benefit 
pensions to define contribution plans like 401K's which we are 
just discussing now. This provision is also a part of 
legislation our colleague Representative Underwood of Illinois 
introduced, and I thank her for her leadership.
    For many families in my own district, and across the 
country, their 401K plan is often their largest asset outside 
their home, yet there is a loophole in current law that is 
being exploited, allowing one spouse to make a withdrawal from 
a 401K plan without the other spouse's knowledge or consent.
    Women who are far more often have fewer assets and 
retirement benefits than men, are the ones who are far more 
likely to be harmed by this loophole. Ms. Matsui thank you for 
your thoughtful and compelling testimony. I have a few 
questions to emphasize what is at stake, and why Congress 
really needs to act.
    Let us say one spouse retires or changes jobs and decides 
to withdraw a 401K balance that was intended to serve as a 
retirement nest egg for both spouses. Is there anything in 
current law to stop this spouse from depleting this account?
    Ms. Matsui. Thank you very much for the question and for 
this important legislation Representative McBath. Right now, if 
a withdrawal is made there is nothing to prevent one spouse, 
the participant spouse from depleting those assets. I will say 
that you know for in some limited circumstances, if there is a 
divorce pending, there may be a requirement to kind of hold 
those assets, or think about those but it is often very 
difficult to practically protect those since as you noted the 
401K, or retirement savings plan could be the biggest asset in 
the marriage, and if those assets or funds are spent or 
depleted, there is not really a way to recoup them or get them 
back.
    By the same token some states do have--and only in common 
law states though have protections in IRAs, but again those are 
not comprehensive, and there really is no recourse, especially 
since spouses may not find out until their spouse has passed 
away.
    Mrs. McBath. Okay, thank you. You have just answered my 
next question that there is no recourse for that spouse. I can 
see how this would be a major issue for couples in anticipation 
of a divorce. Can you speak a little bit more to that?
    Ms. Matsui. Yes, and thank you for the question. Because 
pension benefits and retirement savings that are accumulated 
during a marriage are effectively marital property, it is 
deferred compensation, so it belongs to kind of the marital 
unit. The one spouse does have kind of a right to share as 
marital property.
    While those benefits can be divided at divorce, again there 
is a concern that if those funds are depleted, they are not 
kind of available and ready, and in addition there are 
sometimes considerations of you know tradeoffs, or one spouse 
may be interested in keeping the house. It is not always kind 
of a guarantee that a spouse will get their share. All of these 
are points where retirement savings can be lost, and spouses 
can be put at risk for a less secure retirement.
    Mrs. McBath. Let us say this becomes law. Can you talk 
about how these spousal consent provisions would be implemented 
and administered by retirement plan sponsors?
    Ms. Matsui. Yes, thank you. For almost four decades, 
retirement plans who administer defined benefit plans have been 
effectuating and implementing spousal consent provisions. In 
addition, the Federal thrift savings plan for its recipients 
does also have spousal protections for their defined 
contribution plans.
    If for example, a participant rolls the account balance 
over to another defined contribution plan that is employer 
sponsored, or an IRA where there is spousal protections, no 
consent would be required, but there's kind of ample precedent. 
Plans have been doing this for almost 4 years to be able to put 
these protections in place.
    Mrs. McBath. Thank you so much. I am out of time, and I 
look forward to continuing to work on this really vital 
legislation with my colleagues, and I yield back.
    Chairman DeSaulnier. Thank you. We will now recognize Mr. 
Levin for 5 minutes.
    Mr. Levin. Thanks, Mr. Chairman, and thanks for convening 
this hearing. I have long opposed the previous administration's 
efforts to stymie environmental social and governance, or ESG 
sustainable investing. I introduced two bills, the Sustainable 
Investment Policies Act, and the Retiree's Sustainable 
Investment Opportunities Act to protect and promote 
transparency in this area.
    Workers should be able to invest in accordance with their 
values relating to environmental sustainability, workers' 
rights, and corporate governance. Contrary to what some may 
say, this kind of sustainable investing is not at odds with 
making a profit. In fact, worker's profit motives are central.
    If a company has negative practices, such as high liability 
risks, or treatment of workers, even in their supply chains, or 
carbon intensive business practices, their stock could suffer 
in the long-term. Retirement plan fiduciaries should be able to 
consider such factors when making investment decisions for 
their participants.
    That is exactly what the Biden-Harris administration's 
proposed ESG rule seeks to do, and I am a strong supporter of 
it. For today, I want to explore two important issues--the 
performance of ESG funds, and the necessity of this Biden-
Harris administration regulation.
    Mr. Szapiro, in Mr. Biggs's testimony, he cites studies 
questioning the performance of ESG funds. Based on 
Morningstar's extensive study of the data, have you seen 
underperformance with ESG funds?
    Mr. Szapiro. Thanks so much for the question, and we really 
have not. We put out every year the sustainable funds landscape 
report. We published the most recent one in January of this 
year. What we find when we look across all sustainable funds 
with different kinds of strategies, funds that incorporate the 
ESG information into their investment process, what we find is 
slightly more than half of those funds finish in the top half 
of their Morningstar category by returns.
    At least looking retrospectively, there is really not--
there to the argument that these funds systematically, or 
generally underperform conventional funds. I want to emphasize 
that that is all net of fees. In previous years we found 
sustainable funds have actually performed--have been more 
likely to perform quite a bit better than conventional funds.
    Mr. Biggs also cited the CRR study, and I think that is an 
interesting study, but just in a nutshell I do not think that 
its findings support the notion that ERISA DC plans should not 
consider ESG information, or that the Department of Labor's 
regulation should not be promulgated. They look at, and I am 
just quoting from the study here, a whole range of approaches 
that run the gamut of State mandates and ESG policies, so I do 
not think they are really capturing the kind of ESG analysis 
that the regulation the Department of Labor is considering 
would promote.
    Mr. Levin. Exactly. Well, so I really want to sort of put a 
fine point on that because clearly in his testimony, Mr. Biggs 
questions whether the proposed ESG rule is even necessary at 
all, and he seems to argue that plans are already doing this, 
and the market is already pricing it in.
    Based on Morningstar's study of the data, are plans 
accounting for ESG factors, and is the proposed ESG regulation 
needed?
    Mr. Szapiro. I think it absolutely is, and in my written 
testimony I provide some charts and figures on this, but I 
think that the bottom line is something I alluded to earlier, 
and I want to come back to. 4 percent of strategies, 2 percent 
of assets that we can identify, around 3 trillion in assets we 
can identify in the defined contribution system are in funds 
that we would call five globe, that is that they are best 
prepared to address ESG risks.
    I think it is clear to me that plan sponsors are you know 
afraid of considering these issues because of the regulatory 
uncertainty, and that doing so would benefit participants 
because it would allow the plans to say okay, we are 
considering whether these risks are financially material, and 
what they will mean for your future retirement.
    Mr. Levin. Well, thanks, and you know I really appreciate 
you underscoring the importance of the Biden-Harris 
administration's proposed ESG rule. I plan to file legislation 
to codify the rule once it's finalized by DOL because Congress 
also needs to provide long-lasting clarity to plan fiduciaries, 
and I welcome my colleague's support for this bill.
    You said something else in your testimony that I really 
believe, and I am going to expand on it because this is what I 
think anyway. Young people, young workers, do not save nearly 
enough for their retirement, and part of the reason is they are 
not interested, it does not seem to meet their needs.
    Letting them invest their values in ways that also maximize 
their returns over time will get a lot more young people into 
the game when they need to start saving for their retirement. 
That is what we need to protect those young workers, that is 
the whole reason we are here talking about that. Thanks, Mr. 
Chairman, I yield back.
    Chairman DeSaulnier. Thank you. We are now going to 
recognize the Chair of the full committee, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Szapiro, let me 
follow through on that because Mr. Biggs said that ESG funds as 
a whole do not do as well as index funds. Is it true that most 
other funds, actively managed funds, do not do as well as index 
funds either?
    Mr. Szapiro. That has been true for many active funds yes. 
I think the arguments that get into returns on ESG, I mean 
obviously we feel our study is the gold standard on this, but I 
think they tend to sort of cherry pick specific examples. When 
you look at the totality of funds that are incorporating the 
ESG information into their strategy, they have performed as 
well, or better than conventional funds in previous years. 
That's what we found.
    Mr. Scott. Okay, thank you. Mr. Biggs, you indicated that 
because index funds do not do as well--because ESG funds do not 
do as well as index funds, should not that argument also 
exclude virtually all managed funds because they do not do as 
well as index funds either?
    Mr. Biggs. In my point of view, if you are looking out for 
the pure financial best interests of your participants, an 
index fund is probably the best choice. Just to touch back on 
the points Mr. Szapiro made. I would be happy to provide you a 
variety of cites to references of studies looking at ESG funds. 
I have some in my written testimony.
    I believe that Morningstar's study looked at more recent 
returns the last 5 years or so. ESG funds are heavily weighted 
to tech, have done well. The Boston College study looked at the 
longer term, where I think short-term factors are less 
important.
    Mr. Scott. Well, Mr. Biggs, I think you made the point that 
index funds are probably better.
    Mr. Biggs. Sure.
    Mr. Scott. Overall, anyway, but on a question of whose 
money is it, why should not an employee be able to choose from 
a list of options what they want to invest in, and why would 
you be excluded from considering, if that is your choice with 
your money, investments in ESG funds? Why should we even be 
required to support carbon pollution and gambling and smoking 
if you do not want to and knowing the risks it may or may not 
make as much, but that is your choice, and it is your money. 
Why should not that be your choice?
    Mr. Biggs. Yes, I should be clear. I am much more open to 
an ESG, or an ethical fund being introduced as an option in a 
401K. Where I would have real problems would be if an ESG fund 
became the default because we know that you know most people 
are going to go with that. Again, I am not an ERISA lawyer.
    There is a distinction between the individual's choice 
versus what is effectively being chosen on that.
    If you are in a defined benefit fund, I think ESG is really 
problematic.
    Mr. Scott. Thank you. Ms. Handorf, on mental health parity 
we have talked about the penalty and the absence of penalties 
for violation. Who enforces the violation right now? The 
violation of a mental health parity on insurance policies?
    Ms. Handorf. Basically, the Department of Labor has the 
authority to make them come into compliance, employers to come 
into compliance, but that is it, and then to pay whatever the 
required benefits are. I think if you look at private 
litigation, you are going to find some real changes being made 
because participants have banded together to fix the problems 
with large insurers, and third-party administrators.
    Mr. Scott. Well, that sounds like class action to me. What 
is the problem with banning class action in some of these 
policies?
    Ms. Handorf. Well, the problem with it is one single person 
cannot afford to bring litigation that is as complex as ERISA 
is, and they just do not have the money. It is not worth it to 
them, so it is really important that they be able to band 
together, and to get meaningful relief. That is the only way 
you are going to get change.
    Mr. Scott. Should there be any relief to insurance 
companies in terms of mental health parity if there is a 
provider shortage prior to putting a package together in your 
provider network in some areas, frankly, are not the providers?
    Ms. Handorf. Well, I think the providers, there are 
providers. The networks I think are problematic altogether, but 
networks definitely should--there is no incentive for them to 
get any greater network coverage and, therefore.
    Mr. Scott. Well, I mean in some areas network can include 
everybody, but if everybody--there are not enough providers, 
some counties do not have psychiatrists.
    Ms. Handorf. That is a problem, and that is why I think the 
telehealth issue is a good one. It would definitely expand the 
availability of benefits to people that are underserviced 
areas.
    Mr. Scott. What is wrong with arbitration clauses?
    Ms. Handorf. Arbitration clauses keep people out of court. 
They make it impossible. I often see it in the topics of 
employee's stock ownership plans where it does not really make 
any sense that you would have arbitration provisions and each 
person would go into court individually to sue for the exact 
same violation that occurs for everybody, it just does not 
work, and it is definitely put in plans to keep the 
participants from protecting their rights.
    Mr. Scott. Thank you, Mr. Chairman.
    Chairman DeSaulnier. Thank you as well, Mr. Scott. That is 
our last question for members. I want to remind my colleagues 
that pursuant to committee practice, materials for submission 
for the hearing record must be submitted to the committee clerk 
within 14 days following the last day of the hearing, so by 
close of business on March 15, 2022, preferably in Microsoft 
Word format.
    The materials submitted must address the subject matter of 
the hearing. Only a member of the subcommittee, or an invited 
witness may submit materials for inclusion for the hearing 
record. The documents are limited to 50 pages each. Documents 
longer than 50 pages will be incorporated into the record via 
an internet link that you must provide to the committee clerk 
within the required timeframe, but please recognize that in the 
future that link may no longer be operational.
    Pursuant to House rules and regulation, items for the 
record should be submitted to the clerk electronically by 
emailing submissions to edandlabor.hearings@mail.house.gov. 
Again, I want to thank our witnesses. You have all been 
terrific, really good exchange, and for your participation 
today.
    Members of the subcommittee may have some additional 
questions for you, and we ask the witnesses to please respond 
to these questions in writing. The hearing record will be held 
open for 14 days in order to receive these responses.
    I remind my colleagues that pursuant to committee practice, 
witness questions for the hearing record must be submitted to 
the majority committee staff, or committee clerk within 7 days. 
The questions submitted must address the subject matter of the 
hearing.
    Now I would like to thank all of my colleagues. I want to 
thank my ranking member. I am looking forward to being there in 
the meeting room with you as well Mr. Allen, and I recognize 
you for a closing statement.
    Mr. Allen. Okay, there we go. Thank you, Mr. Chairman, and 
I ask unanimous consent to enter a statement into the record 
from the Association for Behavioral Health and Wellness, the 
ERISA Industry Committee, Fidelity Investments, and the 
Hispanic Leadership Fund, and a letter from the partnership for 
employer sponsored coverage.
    Chairman DeSaulnier. Without objection.
    [The information of Mr. Allen follows:]
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    Mr. Allen. Thank you Mr. Chairman. I would also like to 
thank the witnesses for their testimony today, and thank you 
Mr. Chairman for holding this hearing. I am concerned with the 
timing of the hearing and my colleague's intentions. The 
committee should focus on enacting bipartisan RISE Act, not 
jumping to consider new, more partisan retirement package.
    It is my hope that the committee continues its important 
tradition of bipartisan cooperation in retirement legislation. 
As we heard from today's testimony, the financial interests of 
retirement savers and beneficiaries must be prioritized. The 
Biden administration's proposed rule requiring ESG investing 
and private retirement plans not only contradicts ERISA, but 
also threatens the savings of American workers and retirees.
    DOL's proposed rule and similar legislative proposals would 
place retirement savers third behind the political whims of the 
majority and a fiduciary fearing a lawsuit for non-compliance. 
Thank you again to all the witnesses for participating in 
today's hearing, and with that Mr. Chairman thank you and I 
yield back.
    Chairman DeSaulnier. Thank you, Mr. Allen. I will now 
recognize myself for the purpose of making my closing 
statement. First I ask unanimous consent to enter a letter from 
the American Federation State, County and Municipal Employees 
into the record. Without objection so ordered.
    [The letter of Chairman DeSaulnier follows:]
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    Chairman DeSaulnier. Thanks again to the witnesses. I 
really mean it. It's a good conversation and encouraging. In 
spite of our differences, I think there's a lot that we can 
work on together. So thank you very much. Today we discussed, 
excuse me, the importance of helping workers access secure 
retirement, high-quality health care.
    Unfortunately, as our witnesses shared, many workers 
continue to face barriers to saving for retirement and 
receiving the care they need. That is why Congress and this 
committee advanced legislation to improve retirement security, 
strengthen health benefits, and protect pensions of more than 
one million workers and retirees through the American Rescue 
Plan.
    I look forward to continuing our efforts to advance common 
sense solutions, that meaningfully improve the lives of 
American workers and retirees. I welcome my Republican 
colleagues' support for these ideas, and I also welcome our 
conversation. Thank you again to our witnesses. If there's no 
further business, without objection the subcommittee stands 
adjourned. Thanks.
    [Whereupon, at 12:07 p.m., the hearing was adjourned.]
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