[Congressional Record Volume 167, Number 63 (Tuesday, April 13, 2021)]
[Senate]
[Pages S1886-S1887]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Gary Gensler

  Mr. TOOMEY. Mr. President, I rise this afternoon to discuss the 
nomination of Mr. Gary Gensler to serve as the Chairman of the 
Securities and Exchange Commission.
  To start this, I just want to remind my colleagues, the mission of 
the SEC is really threefold: It is to protect investors; it is to 
facilitate capital formation; and it is to maintain fair, orderly, and 
efficient financial markets, capital markets.
  And the fact is, America's capital markets are, without a doubt, the 
envy of the world. There are no other capital markets anywhere on the 
planet that have the depth, the liquidity, the diversity, the 
flexibility that allow growing businesses to grow as readily as our 
capital markets allow.
  And that is a big part of why we are outperforming the world in terms 
of a recovery from the pandemic--coronavirus infections and lockdowns 
and all the rest. It is one of many reasons, but it is an important 
one.
  It is also worth remembering that that recovery can be stymied if 
regulators impose inappropriate, burdensome regulations, including, 
say, backdoor regulation by enforcements that we have seen in the past 
that hamper job growth, that limit access to capital or if these 
regulators mandate managers of publically traded companies to favor so-
called stakeholders over the interests of the people who actually own 
the company, which is to say the shareholders.
  The SEC has historically administered Federal security laws and 
pursued its mission on a pretty bipartisan basis, but increasingly, 
there are some who want the SEC to stray from this tradition and 
instead to push the bounds of its legal and regulatory authorities in 
order to advance a particular liberal, social, and cultural agenda.
  Unfortunately, when he was the Chairman of the CFTC, Mr. Gensler 
demonstrated a willingness to push the legal authorities and the legal 
limits of that Agency's authority. He was responsible for a CFTC rule 
on position limits that was overturned in court and another rule on 
cross-border swaps that was viewed by many, including international 
regulators, as exceeding the CFTC's authority. This raises questions 
about whether he would be willing to exceed the legal bounds on the 
SEC's authority as well.
  Let me acknowledge that Mr. Gensler, without a doubt, has a great 
deal of knowledge and experience in our securities markets. There is no 
question about it. He has a lot of expertise there. But based on his 
record as a regulator in the past and statements that he has made 
during the course of this nomination process, I am concerned that he 
will use the SEC and its regulatory powers to advance an agenda that 
should not be the purview of the SEC--specifically, global warming and 
climate change, political spending disclosures, and issues of racial 
inequality and diversity.
  Securities laws and securities regulations are not the appropriate 
vehicle to address any of these topics. That is the reason why we have 
environmental and political spending and civil rights laws, and we have 
Federal Agencies that are responsible for enforcing those laws. If 
anybody thinks those laws are not adequate, OK, then take it up before 
Congress and have Congress change the laws. We are the people who 
should be responsible because we are the ones who are accountable to 
the American people. It is certainly not the role of the Securities and 
Exchange Commission--an independent financial regulator with no 
political accountability to voters whatsoever--to address difficult, 
challenging, sometimes contentious political, social, and cultural 
issues.
  I have to say, nothing that Mr. Gensler said at his hearing or since 
has alleviated my concerns. Mr. Gensler did state that his regulatory 
approach would be grounded in the Supreme Court's definition of 
``materiality,'' but he declined to explain what that really means, 
what that means to him, what are the limiting principles.
  For example, I asked him if it would be OK for companies to be forced 
or pressured to comply with quotas with respect to the race, the 
gender, or sexual orientation of their board members. In response, Mr. 
Gensler did not disavow the idea of forcing or pressuring companies to 
use these kinds of quotas to achieve board diversity.
  I also asked him if a company's financially insignificant spending 
on, say, energy or maybe political advocacy--if that can ever be 
material information that must be disclosed to investors. Again, I was 
talking about financially insignificant transactions. In response, Mr. 
Gensler essentially indicated that if a number of politically motivated 
activist investors wanted to know the information--for example, 
information related to global warming or political spending--then that 
makes it material information even if it is financially insignificant 
to the company, and therefore the SEC could presumably mandate its 
disclosure. I think that is completely inconsistent with the whole idea 
of materiality.
  What it seems to me the bottom line for Mr. Gensler is, as long there 
are liberal activist investors who demand to know certain things about 
environmental, social, or corporate governance issues, then it would be 
OK to force disclosure of those issues, and I was not able to discern a 
situation in which Mr. Gensler would not be willing to mandate 
disclosure of that kind of information.
  There is another issue that is concerning to me, and that is Mr. 
Gensler's answers to questions during his nomination hearing about 
recent stock market volatility.
  We have seen some extraordinary volatility in a handful of companies 
for a variety of relatively novel reasons. Some have suggested that we 
have to take a paternalistic approach to grown adults and maybe limit 
their ability to

[[Page S1887]]

make investments because they don't know well enough what is good for 
them. And maybe there are apps that make it too user friendly to buy 
stocks, so maybe that leads to imprudent decisions.
  I find it shocking that we would actually contemplate limiting grown 
adults' ability to make their own decisions. I wasn't sure where Mr. 
Gensler came out on this, and in some respects, I think, he indicated 
that there may be some sympathy to this paternalistic view that I think 
would be a very, very big mistake.
  So the nomination process just never alleviated the concerns I have. 
Maybe my concerns will prove to have been misplaced. I certainly hope 
so. Mr. Gensler is a very intelligent, knowledgeable, thoughtful 
person. He is very likeable. I happen to like him personally. But 
because of these concerns I have, I will not be able to support his 
nomination, and I will be voting no later today.
  Mr. TOOMEY. I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio
  Mr. BROWN. Mr. President, I appreciate Senator Toomey's comments and 
the spirit in which they were delivered.
  I rise to urge my colleagues to support President Biden's nominee to 
be Chairman of the Securities and Exchange Commission, Gary Gensler.
  In March, Mr. Gensler appeared before the Banking, Housing, and Urban 
Affairs Committee for his nomination hearing. The committee advanced 
him to the full Senate with a bipartisan vote.
  Mr. Gensler is an experienced public servant with a strong record of 
holding Wall Street accountable. He will lead the SEC at a time when it 
has become more and more obvious to more and more people that the stock 
market is detached from the reality of working families' lives. Mr. 
Gensler will bring the SEC's focus back to the people who make this 
country work. He will push to ensure that markets are a way for 
families to save and invest for their children's education, for a 
downpayment on a home, for a secure retirement, not a game for hedge 
fund managers, where workers lose every single time.
  Mr. Gensler, as Chair of the Commodity Futures Trading Commission, 
led the implementation of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act to bring transparency and stability to more 
markets. He was tough on enforcement issues. He cracked down on big 
banks that had manipulated interest rates for years.
  Mr. Gensler is an expert on finance and markets. He previously served 
as Secretary of the Treasury for Domestic Finance and Assistant 
Secretary of the Treasury for Financial Markets.
  He will carry out the SEC's mission--the reason it was created--to 
ensure that U.S. capital markets deliver growth and investment 
opportunities that grow the real economy and give middle-class families 
the opportunity to build wealth. He understands we need to ensure 
confidence and stability in our markets as the foundation to grow 
American businesses and support the workers who make their companies 
successful. Mr. Gensler will listen to families saving for the future 
as well as professionals who manage workers' pensions and retirements. 
He will make sure that savers, large and small, can hold corporate 
executives accountable.
  When it comes to enforcement, Mr. Gensler has shown the guts to take 
on bad actors, no matter how big and no matter how powerful they are, 
and he will hold them accountable.
  The pandemic has reminded people just how rigged the Wall Street 
system can be.
  About 2 months ago, I became chair of the committee that is called 
the Senate Committee on Banking, Housing, and Urban Affairs. To most in 
this body, the committee is just referred to as the Banking Committee 
or Senate Banking. This is a committee where Wall Street--it has been 
all about Wall Street, little about housing, and damn near nothing 
about urban affairs. Those days are behind us. This committee will look 
out for small investors. That is why the SEC is so important, and Mr. 
Gensler's work. It will help to expand housing, it will make a 
difference in communities, and it will no longer be the province of 
Wall Street.
  If you look only at the stock market, it looks like the pandemic 
never happened. The market reached new highs last fall. Families and 
businesses continued to suffer. Workers put their health and their 
lives on the line to keep businesses running, and once again, hedge 
funds and insiders reaped the vast majority of the profits.
  We know that over the last decade or so--more than a decade--we have 
seen profits go up, we have seen executive compensation explode upward, 
and we have seen workers more and more productive. Yet wages have been 
flat.
  That is our challenge. We saw during the pandemic that was even 
worse. It doesn't have to be that way. We can have a market that works 
for everyone. Mr. Gensler shares that goal. Under his leadership, the 
SEC can protect people's hard-earned savings, can keep our markets 
stable, and can make them fair. This will let us create an economy 
where everyone can participate.
  Mr. President, I urge my colleagues to vote yes on Mr. Gensler's 
nomination.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. WICKER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.