[Congressional Record Volume 169, Number 39 (Wednesday, March 1, 2023)]
[Senate]
[Pages S550-S556]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          LEGISLATIVE SESSION

                                 ______
                                 

  PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, 
 UNITED STATES CODE, OF THE RULE SUBMITTED BY THE DEPARTMENT OF LABOR 
 RELATING TO ``PRUDENCE AND LOYALTY IN SELECTING PLAN INVESTMENTS AND 
                    EXERCISING SHAREHOLDER RIGHTS''

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to legislative session and proceed to the immediate 
consideration of H.J. Res. 30, which the clerk will report.
  The senior assistant legislative clerk read as follows:

       A joint resolution (H.J. Res. 30) providing for 
     congressional disapproval under chapter 8 of title 5, United 
     States Code, of the rule submitted by the Department of Labor 
     relating to ``Prudence and Loyalty in Selecting Plan 
     Investments and Exercising Shareholder Rights''.

  The PRESIDING OFFICER. The senior Senator from Hawaii.
  Mr. SCHATZ. Madam President, there is a group of elected officials in

[[Page S551]]

our country today who are engaged in an anti-capitalist crusade. But 
they are not socialists; they are mostly congressional Republicans.
  This CRA is gross government overreach on U.S. capital markets. It is 
designed to prevent pension plans from pursuing environmental, social, 
and governance--or ESG--investing. But make no mistake, it is only the 
latest step in a campaign to prevent American financial institutions 
from making money from the clean energy revolution, and it should 
offend anyone who supports free markets.
  The reason this is happening is that the fossil fuel industry faces a 
risk wall, where the risks associated with climate change are clear 
enough that retirement plan sponsors may want to consider them when 
investing assets. The Trump administration banned them from doing so, 
implementing a rule that pension fund managers couldn't consider ESG 
investing. The Biden administration's rule merely reverses this ban, 
going back to a neutral stance--going back to be a neutral stance. It 
is not telling them to do environmental, social, and governance goals; 
it is just saying: Do whatever you want. It is none of our business. 
The Federal Government has no business in determining how pension funds 
deploy their resources.
  But rather than own up to the risks or reduce their emissions, the 
fossil fuel industry is trying to remove climate-related elements from 
risk consideration, and the Republican Party is helping.
  This closely coordinated effort is being driven by a network of dark 
money organizations fronting for climate denial groups. One attacker of 
ESG investing is the Rule of Law Defense Fund--the political arm of the 
Republican State Attorneys General Association, which urged people to 
come to the Capitol on January 6 and aid in the attempted overthrow of 
our democracy.
  This dark money helps to win elections, and the fossil fuel industry 
is becoming more aggressive because of the increase in green investing. 
Right now, more than $8 trillion in U.S. assets is under management 
employing sustainable investing strategies. ESG investing is expected 
to represent more than 20 percent of all global assets in the next 5 
years, and this growth is occurring for one simple reason: It is 
profitable. It is profitable.
  Some asset managers are pursuing sustainable investing at the behest 
of their clients. Others have determined sustainable investing fits a 
long-term strategy to grow retirement savings. Any plan sponsor 
considering sustainable investing is simply meeting the moment.
  But here is the real point: It is their call. It is not our call. 
That is just capitalism in action, and the climate deniers are getting 
their butts kicked in the free market, and they are mad about it, and 
so they want to make a law to stop the bleeding.
  Imagine an elected official telling an investment firm they can't 
offer large cap or small cap or emerging market funds or funds even 
that are exclusively for fossil energy. That would be preposterous. 
Why? Because people get to decide how to deploy their resources, and 
pension funds get to decide how to deploy their resources. But 
Republicans have decided that for this issue and only this issue, we 
should be telling pension fund managers how they can and can't invest.
  The real reason for this is the Inflation Reduction Act has made it 
so profitable to invest in clean energy that they are losing, and they 
want an intervention from the Congress, so they decided to categorize 
ESG investing as something nefarious, as something tricky, as something 
woke. Come on. They are just losing. People don't want to invest in 
fossil fuel anymore, and so they are asking the Congress to intervene 
on their behalf.
  This is not how the free market should work. If this passes, it will 
force financial firms to punish Americans on behalf of the fossil fuel 
industry. We cannot be intimidated. We have to reject this.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from Massachusetts.
  Ms. WARREN. Madam President, I rise today in opposition to Republican 
efforts to nullify the Department of Labor's rule that protects 
retirees and affirms decades of precedent. This rule allows those 
investing retirees' savings the freedom to direct those funds where the 
retirees want them to go. It lets them protect those funds from costly 
risks posed by worsening environmental disasters or unsafe and unfair 
working conditions and seek out promising, sustainable, long-term 
investment opportunities.
  Republicans' latest front in their wholly made up culture war is an 
attack on ``woke capitalism,'' and American retirees are apparently 
their targets. In particular, Republicans have set their sights on 
retirees who choose to invest their money with environmental, social, 
and governance--ESG--factors in mind.
  Now, investors have actually been doing this for decades. The 
Department of Labor has repeatedly said that under the Employment 
Retirement Income Security Act of 1974, known as ERISA, retirement plan 
managers may consider all--all--relevant economic factors when making 
investment decisions if it is in the best interest of the plan's 
participants. That includes ESG factors, like how a company treats its 
workers or whether the company is sufficiently protected from climate 
risks and whether the company respects human rights.
  It turns out, investors really want to know these things. You don't 
need to be a financial wizard to realize that whether a company invests 
in its workers or is vulnerable to climate risks might be relevant to 
the company's long-term prospects and the potential returns on your 
investment.
  But the Trump administration put blinders on investors when, in 2020, 
it finalized a rule limiting that and made it harder for retirees to 
invest with ESG considerations in mind. In 2022, the Biden 
administration Department of Labor rightfully removed these roadblocks 
and affirmed that retirement fiduciaries have the option to consider 
ESG factors when making investments on behalf of retirees.
  Let's be very clear about what this rule does not do. It does not 
mandate anything. It does not require that fiduciaries invest or not 
invest in certain funds. It does not tell fiduciaries to consider or 
not to consider certain factors. There is nothing new here and 
certainly nothing extreme.
  Let's be clear. By overturning the Department of Labor's rule, 
Republicans want to tie investors' hands and override the free market. 
This fight isn't about protecting and strengthening Americans' 
retirement security. It is not about ensuring that retirement plan 
fiduciaries are making sound financial investments. And it sure as heck 
is not about capitalism. It is politics, plain and simple.
  How do I know that? Well, Republicans clearly believe that investment 
decisions should be made with consideration of ESG factors so long as 
they are ESG factors that the Republicans support. My colleague Senator 
Rubio has championed legislation that would prevent Federal Government 
employees' retirement assets from being invested in Chinese and Russian 
companies.
  At the same time, Republicans also seem to believe that government 
shouldn't restrict investors' ability to put their money wherever they 
want. In response to the Department of Labor's very sensible guidance 
warning about the financial risks of investing in crypto scams, my 
colleague Senator Tuberville introduced a bill that would prohibit any 
guidance that would limit the type of investments that workers can 
make. He said:

       The government has no business standing in the way of 
     retirement savers who want to make their own investment 
     choices.

  So add up what the Republicans have already told us with the 
legislation they are sponsoring. Retirees should have the freedom to 
invest their hard-earned money in crypto scams, but they should not 
even be allowed to consider whether a company relies on child labor or 
is polluting the planet or is underpaying its workers when deciding 
whether or not an investment is sustainable. It just doesn't make any 
sense, and it is not supposed to.
  There is a bigger picture here that Americans need to understand. 
Republicans know that President Biden will veto this resolution the 
minute it hits his desk. They know it won't succeed in nullifying the 
Department of Labor's rule. So what is the point of doing this?

[[Page S552]]

  Well, Republicans have been explicit that the goal of this exercise 
is to help their buddies in the courts. President Trump appointed 
judges across the country who are now engaged in a disturbing assault 
on the regulatory state and are hell-bent on kneecapping any effort to 
make markets fairer, to make workers safer, and to make the environment 
cleaner. This resolution is just one more attempt by Republicans to 
give an assist to these extremist judges and make it easier for the 
courts to overturn the rule and undermine the law.
  Let's call this attack on the Department of Labor's rule what it 
really is--a wholly invented grievance to advance corporate special 
interests, not the interests of retirees.
  Democrats need to stick together on this and reject these cynical 
efforts to undermine investor protection and empower extremist 
Republican courts.
  I yield the floor.
  The PRESIDING OFFICER. The junior Senator from Minnesota.
  Ms. SMITH. Madam President, I appreciate my colleagues' remarks 
today. You know, the issue that we are debating is whether or not 
retirement plans should be allowed to consider a company's 
environmental, social, and governance goals when they make investments. 
That is ESG, and it is pretty simple.
  My colleagues and I say that people who make investments for 
retirement accounts and pensions plans may--they don't have to; they 
may--consider ESG in their decisions about what stocks to buy so long, 
of course, as they adhere to their principal fiduciary responsibility, 
which is to put the financial best interests of their clients first.
  Now, on the other hand, our Republican colleagues are saying: No, 
retirement plans can't consider ESG goals. They are somehow claiming 
that this rule will undermine free and fair markets--undermine the free 
market and promote ``woke'' capitalism. And, if you can tell me what 
that means, then I will look forward to your explanation.
  So let's figure out what this is really about.
  People invest their life savings for a safe, secure retirement, and a 
lot of people want those investments in companies that reflect their 
values, companies that protect the safety of their workers, that have 
excellent ethics rules in place, guarding against conflicts of 
interest; companies that are committed to protecting the environment 
and managing the risks of climate change. In fact, companies with these 
kinds of positive environmental, social, and governance policies are 
often good financial investments as well. The two go hand in hand.
  The foundation of a free market is that people can decide for 
themselves where to invest their money, and they should have good, 
trustworthy information in order to make those decisions so that the 
market is fair and they don't get taken advantage of.
  That is all this ESG rule that we are defending today does. It 
asserts that investors should have the option, if they choose, to make 
ESG investments. It is not a mandate. It does not elevate one type of 
investment over another. All this rule does is allow workplace 
retirement plans to offer ESG investments as an option to people who 
want them, provided, of course, that those investments are prudent and 
provide a safe and secure retirement.
  So I can tell you that out in the real world of Minnesota, this is no 
big deal. For decades, great Minnesota companies have been looking for 
excellent returns on their investments. That is their job. But they 
have also been trying to improve how their companies help their 
community, help their employees, and help the environment. A lot of 
people would say that is good business.
  In fact, ESG investing has been growing in this country for decades. 
People like it. They want to invest in companies that reflect their 
values. More than $18 trillion are held in investment funds that follow 
the ESG investment principle. So this isn't some sort of weird fly-by-
night new idea. ESG investing has been routine for years.
  But what is new--what is new--is the way in which these extreme 
Republican politicians whom we see today are trying to turn ESG into 
their latest tool to rip us apart and to expand their own political 
power, and that is so hypocritical.
  You know, Republicans claim to be believers in a free market and 
freedom of choice, but, today, with this vote, they are saying you 
can't even think about basic concerns like protecting the environment 
and fighting climate change or protecting workers or strong company 
ethics. You can't even think about those things as you make investments 
for your retirement. So instead of allowing people to make their own 
choices about how to invest in their retirement savings, these 
Republican politicians want to put their political values and the 
interests of their donors in the middle of your investment decisions.
  That is just wrong. It is out of touch, and I don't think it flies--
not in Minnesota and not in most places in this country.
  So I hope we can reject this extreme agenda and vote no. This issue 
is just too important. It is about letting people decide how to secure 
their own retirement and allowing them to choose investment options 
that match their values.
  To be clear, there are good reasons that people would want to take 
ESG factors into consideration. It is reasonable to ask whether your 
retirement is invested in companies that operate sustainably and 
practice good governance. It is reasonable to say that you don't want 
to invest in a company with a record of discrimination or mistreating 
workers.
  You know, I have been in business, and I can tell you that these 
values aren't just good for marketing or investor relations. They are 
the markers of a healthy, sustainable business--businesses with the 
capacity to confront risk, to innovate, to diversify, and to meet the 
needs and challenges of an evolving world for long-term resilience and 
viability. Businesses that consider these factors do better. It is good 
business. They make more money.
  So, colleagues, I ask for a ``no'' vote, which is a ``yes'' vote for 
allowing people the freedom to invest their retirement in ways that 
reflect their values and make money. I also ask my colleagues to join 
me in my legislation, the Freedom to Invest in a Sustainable Future 
Act, which would put into law this commonsense rule that we are voting 
on today.
  I commend the Department of Labor for their commonsense rule that we 
have been talking about, which doesn't force choices. It creates 
choices.
  Let's defeat this resolution and allow people to choose how they want 
to plan for the future for themselves.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from Delaware.
  Mr. CARPER. Before the Senator from Minnesota leaves the floor, I 
want to say I could not agree with you more.
  My dad used to talk to my sister and me about common sense. He would 
say: Just use some common sense.
  Thank you for appealing to our better judgment and common sense. 
Thanks a lot.
  Madam President, I rise today to talk for a few minutes about three 
letters--ESG--and, as Aretha Franklin might say, to find out what it 
means to me.
  Now, as my staff knows, I am not a fan of acronyms or jargon. ESG is 
a shorthand description for a form of investing that takes into account 
environmental, social, and governance factors. It means very little to 
the average American worker. So let me try to make this simple and real 
for them.
  Millions of American workers are saving for retirement or are already 
withdrawing from a retirement plan, thanks to their employer-sponsored 
retirement plan, like a 401(k). Each paycheck, hard-working Americans 
do their best, even when times are tight, to put money away for their 
future and the future of their children and grandchildren with the hope 
that, down the road, those weekly or monthly contributions will grow 
over time and help folks retire with dignity well into their golden 
years. And with some good fortune and a prudent investment strategy, 
retirement accounts can also provide certainty and security so that 
Americans can enjoy their retirement--to take the vacation that you and 
your spouse always wanted, to make a charitable donation, or maybe to 
send their grandchild to college.
  Those retirement savings often grow thanks to something called a 
fiduciary, who manages American workers' retirement money. There is a 
Federal law

[[Page S553]]

called the Employee Retirement Income Security Act, or ERISA, that 
first passed in 1974 but has been amended many times to ensure that 
fiduciaries are doing right by American workers.
  When decisions are made on behalf of an individual investor, I don't 
think it is controversial to say that every American wants their money 
to grow as much as is reasonably possible. In order to make the best 
decision for Americans' hard-earned retirement savings, I also don't 
think it is controversial to say that the Federal Government shouldn't 
be dictating investment decisions. It shouldn't.
  While the previous administration actually blocked fiduciaries from 
considering economic factors such as climate risk, I believe that is 
the wrong approach. The Trump administration's unpredictable and uneven 
rulemaking led to confusion in the business community and uncertainty 
for investors.
  Now, let's be clear. A range of economic factors, including climate 
change, can impact investment returns and thus fiduciaries' investment 
decisions. The reality is that concerns about our environment--that is 
the ``E''--and about the social impact of corporate activities--that is 
the ``S''--and the corporate governance structure of companies are all 
highly relevant factors in assessing returns on investments in these 
companies. That is the ``G.''
  So I am pleased. I am pleased that the Biden administration has 
embraced more of a free market approach, as my friend from New York, 
the majority leader, outlined, I think, in today's Wall Street Journal.
  Further, this rule reflects what successful marketplace investors 
already know: There is an extensive body of evidence that ESG factors 
could impact markets, could impact industries and companies.
  I know that many of our colleagues are concerned about the ``E'' in 
ESG. I am too. As chairman of the Senate Committee on Environment and 
Public Works, I know we can't ignore the ``E'' in ESG. The economic 
risks from climate change are real and they are significant, and 
fiduciaries must be allowed--allowed--to consider whether those costs 
may well lower their returns of an investment or not. Unfortunately, 
our colleagues' efforts to nullify the current Department of Labor's 
ESG rule threatens the principles-based process that has worked well 
for nearly 50 years.
  We should be making it easier--not harder, easier--for investors to 
evaluate the sustainability commitment from our corporations who want 
to do what is good for business and for our planet, this planet we call 
home.
  With that, I call on our colleagues to join me and many others in 
opposing the CRA before us today.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. MURRAY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Madam President, I will be honest. Based on the 
arguments I have been hearing, I am not sure everyone who is opposing 
the Biden administration's ESG rule has actually read the policy. Some 
of the arguments for the resolution overturning this rule simply don't 
add up. In fact, they are a contradiction. ESG investing is simply the 
practice of taking into account the environmental, social, and 
governance practices of companies that you invest in.
  For instance, just as a hypothetical, if you are against investing in 
so-called ``woke'' causes, you are actually laying out your own ESG 
criteria. Here is the thing: The Biden administration rule would allow 
that. They would allow that because--and this is an important point, I 
think, folks are missing--the Biden rule is fundamentally neutral on 
how ESG factors are taken into consideration, so long as the investment 
fund is meeting its fiduciary obligations to its beneficiaries.
  I am not sure anyone gets that because the fact of the matter is that 
some of the same people who are railing against this rule and against 
ESG investing have advocated for positions that essentially are ESG 
investing.
  When Republicans push for legislation to protect local and State 
governments that divest from companies based on their policies toward 
Israel, that is a form of ESG investing. It is also worth noting, if 
you manage a retirement plan for a faith-based organization and you 
want to make sure you are investing in accordance with your client's 
faith, that, too, would be ESG investing. When we call for divesting 
from foreign adversaries due to human rights and national security 
concerns, again, we are actually talking about ESG investing.
  If anyone wants to argue that that is different, that it is a matter 
of national security, I will note there is no question that climate 
change is also a really serious national security issue, but that is, 
honesty, beside the point here.
  Let me say it again: The rule we are talking about is neutral--
neutral--on whether a fiduciary is considering these factors from a 
particular perspective. This rule is not about saying the left's or the 
right's taking on a given environmental, social, or governance issue is 
correct. It is about acknowledging that these factors are reasonable 
for asset managers to consider. It is about risk mitigation to 
safeguard retirement plan savers' nest eggs. It is about letting asset 
managers do their jobs without the government getting in the way. That 
shouldn't be controversial. It, actually, should be common sense.
  I mean, think about it. When it comes to environmental factors, 
shouldn't financial advisers have the freedom to consider environmental 
practices when climate disasters cost trillions of dollars a year?
  Shouldn't they have the freedom to take into account whether a 
company is adopting sustainable practices that reduce its costs and 
consumption or if it is moving to clean energy so that it makes it less 
reliant on foreign oil?
  When it comes to social factors, we live in a diverse nation. That is 
part of what makes our country so vibrant and so strong. Shouldn't 
financial advisers have the freedom to consider whether companies are 
doing the most to tap into that strength?
  Shouldn't they have the freedom to account for whether companies are 
well situated to serve and speak to the broadest range of people or to 
grow by reaching communities that are currently underrepresented in 
their customer base?
  When it comes to how companies are governed, we are facing workforce 
shortages today. Companies are having huge challenges in finding and 
retaining workers. So shouldn't financial advisers have the freedom to 
consider how well companies are paying their workers or how seriously 
they take safety and issues like workplace harassment or what sort of 
benefits they might provide to retain workers, like childcare, paid 
leave, or more?
  These are concrete factors that have huge implications for companies' 
bottom lines. So why wouldn't we give advisers the freedom to consider 
them?
  Why do Republicans want to tie their hands and meddle in the free 
market by reversing this balanced, neutral rule?
  Despite the misunderstandings and misrepresentations and despite how 
badly some of my colleagues seem to be missing the point, at the end of 
the day, this is actually pretty simple. Financial security is about 
planning for the future, and you can't plan for the future if you 
aren't allowed to consider the environmental or social or governance 
factors that are shaping it.
  So I urge my colleagues, today, to join me in voting against this 
resolution.
  I yield the floor.
  The PRESIDING OFFICER. The junior Senator from Rhode Island.
  Mr. WHITEHOUSE. Madam President, I was delayed in joining my 
colleagues here to talk about this so-called anti-woke capitalism, or 
anti-ESG scheme, that has been propagated.
  I think the important thing to begin with is to understand what is 
happening out there, why this has happened. The Republicans would like 
us to believe that some bizarre, viral epidemic of wokeism has spread 
into America's great financial companies, into the investment advisers, 
into the banks, into all kinds of fiduciaries, and that that needs to 
be somehow excised. That is not what has happened. That is 
preposterous, magical thinking.

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  What has happened is that the long forecasted dangers of climate 
change that scientists have been telling us about for years have now 
gotten so real and are so immediate that they have hit the due 
diligence horizon for big banks, big investment companies, corporate 
boards, and other fiduciaries. When you owe somebody else a fiduciary 
duty, like your shareholders or your investors or your customers at a 
bank, then you have to tell them the truth, and you have to tell them 
the truth about risks. The risks associated with climate change--the 
risks caused by the fossil fuel industry's relentless emissions--are 
now so real and so immediate that they can't be denied by big 
institutions that have no real interest in climate change but are 
absolutely obliged to tell the truth as fiduciaries.
  So that fiduciary threshold--that due diligence horizon--has been 
crossed, and the fossil fuel industry, which is used to bullying to get 
its way, is now pushing this completely fake, anti-ESG effort in order 
to try to undo what the free market and what real life in facts and 
fiduciary obligations are causing other industries to deal with.
  The one telltale clue here is that, when they are done talking about 
woke capitalism and when they are done talking about anti-ESG stuff, 
when you actually look at what the objection is--what the specific 
thing is that they are pushing back against--in the ESG, it is always 
the ``E.'' It is never the ``S.'' It is never the ``G.'' It is not 
social stuff. It is not governance stuff. It is environmental stuff. 
Within that ``E,'' for environmental stuff, it is ``E'' for emissions. 
That is always the gravamen of the complaint.

  So that tells you a lot about who is behind this, and who is pitching 
it tells you a lot about who is behind this because you have got fossil 
fuel-funded organizations, like the Republican Attorneys General 
Association that is cranking up and turning out Republican attorneys 
general to push this theory. You have got the Republican State 
treasurers, often funded by the fossil fuel industry, and a group 
called the State Financial Officers Foundation, which has glommed the 
State treasurers together to try to push on this. You have got State 
boards, like the Texas Railroad Commission--again, heavily, heavily, 
heavily involved with the fossil fuel industry--that are pushing all of 
this.
  When you look at what it is, you can see that its target is always 
fossil fuel emissions, and you can see that its proponents are always 
fossil fuel funded. That tells you why we are where we are.
  The rule that the fossil fuel industry pushed through during the 
Trump administration--an administration which did essentially 
everything the fossil fuel industry wanted it to do--would have 
restricted the ability of investment professionals to deliver the 
products that customers actually wanted and prevented them from looking 
at environmental risks, social issues, or governance. Again, this is 
really about the environmental piece. The Biden rule just undoes that.
  Nobody has to do ESG stuff, as that is dictated by customer demand, 
but if you want to and if your customers are demanding that and if you 
want to protect them from climate risk, well, there you go. You have to 
do it.
  Another clue about the mischief here is who some of the propagators 
of this theory have been. One is the Heritage Foundation. The Heritage 
Foundation is a notorious climate denial group. It has received 
millions of dollars from the Koch brothers' political enterprise, from 
Koch foundations, and has plenty of fossil fuel ties. There is the 
Texas Public Policy Foundation, which is another group that is a front 
group for the oil and gas industry. I have already mentioned RAGA, 
which is heavily fossil fuel funded. It helped produce Scott Pruitt, 
whom you may remember from EPA disgrace. They had such control over 
RAGA that they were able to get him, as the attorney general, to write 
a letter with the identical text from a fossil fuel company, send it in 
to the EPA under his own letterhead, under his own signature as 
attorney general, even though the entire text was written by a fossil 
fuel company.
  So that is the kind of relationship it has with RAGA, which, by the 
way, also helped turn people out for the January 6 insurrection. It is 
a really, really high-quality operation there.
  The last group that I will mention is the Marble Freedom Trust. The 
Marble Freedom Trust is the 501(c)(4) pop-up operation that magically 
appeared in Utah to be the recipient of a $1.6 billion slush fund, 
gifted to it by a far-right billionaire. That put it into the hands of 
a guy named Leonard Leo, whom I have talked about here on the floor 
before, who is the orchestrator of the scheme to capture the Supreme 
Court and put it into special interests' hands. His reward for his 
success in that project was this $1.6 billion slush fund that he now 
controls, and he controls it through that Utah 501(c)(4) pop-up called 
the Marble Freedom Trust.
  The guy who delivered that money into the Marble Freedom Trust was 
also famous for his support for the Heartland Institute, which is 
really just an epic climate denial crowd, to the point where one of 
their more notorious acts was to put up a billboard equating climate 
scientists to the Unabomber. That is the quality of the debate about 
climate change that the Heartland Institute brought, and the 
billionaire who has teed up the Marble Freedom Trust was a prime backer 
of all of that and, indeed, had his CFO go on the board of the 
Heartland Institute to try to keep the thing afloat so that it could be 
moderately well managed and continue to do its great work of billboards 
that compared the climate scientists to the Unabomber.
  So that is where we are. These guys are deep into this anti-ESG push. 
The dark money operation that I talk about on the floor all the time is 
behind this ESG thing just the way it is behind the capture of the 
Court and just the way it is behind the whole climate denial operation 
that has stymied progress on climate in this building.
  A few billion dollars here and there in politics turns out to deliver 
a lot, and the fossil fuel industry desperately wants to stop people 
who have fiduciary obligations from telling the truth about climate 
risks to their clients--to the people whom they have that fiduciary 
risk to--and this is the pitch to do that so that there is a legal hook 
to stop people from meeting their fiduciary obligations by disclosing 
real-life, actual climate risk now that it is so clear and so immediate 
that it is now obliged to be disclosed for due diligence.
  Let us vote no on H.J. Res. 30, and let's do more than that. Let's 
call this out as a phony op. This is a scheme, run by the fossil fuel 
industry, to try to solve the problem it has--that its emissions 
problems are now so real that fiduciaries have to address it. That is 
the problem. A fake operation funded by billions of dollars of dark 
money through all of these slimy corporations and entities that doesn't 
disclose who their real donors are and through all of these political 
operatives that get their funding from the fossil fuel industry--that 
is not something we want to encourage in this country. We have had 
enough of the public not being listened to. In this case, actual 
customers, actual clients, are not being listened to because of this 
pressure.
  Let's call this out. Let's put an end to it. This is not healthy. 
There is something rotten in Denmark.
  With that, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. WARNER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Madam President, I rise today in joining my other 
colleagues, organized by my friend the Senator from Hawaii, to ask my 
colleagues to vote against the resolution, which I think we will be 
taking up literally in the next 10 minutes, which would strip away a 
commonsense Department of Labor rule that simply provides fiduciaries--
remember who we are talking about: fiduciaries, people who are 
responsible, under ERISA plans, to think about their beneficiaries over 
the long term. We are trying to make sure that those fiduciaries who 
are charged with maintaining retirement plans have the ability to 
adequately account for environmental, social, and governance factors.
  I know some of my colleagues have come on the floor and said this is 
an

[[Page S555]]

attempt by the Department of Labor to somehow mandate the retirement 
investments of hard-working Americans. Nothing could be further from 
the truth. The truth is, we look at profit and loss, we look at cash 
reserves, and we look at financial accounting. But the idea that 
environmental, social, and governance factors can't even be looked at 
is an interference in the business cycle that really kind of goes 
beyond the pale.
  I am often regarded--I have to acknowledge this--in my caucus as 
sometimes being a Member who has the most experience with capitalism, 
the most experience with business. I absolutely believe in our system. 
There is nothing better. But the idea that today--and I don't want to 
copy some of the comments that have been made, but the idea that today, 
a lot of folks who have never been able to read a balance sheet are 
going to come in and tell paid fiduciaries what they can consider or 
what they can't consider in terms of the long-term economic returns for 
their beneficiaries--I wonder if things have gotten a little topsy-
turvy here.
  I can imagine if some people were saying ``Well, we need to make sure 
we have this rule in place'' or ``Overrule this rule'' or ``Put this 
binding in place'' if you are talking about day traders or if you are 
talking about a hedge fund that only looks at the next quarter's 
results--the kind of short-term capitalism that too often, I think, is 
eating at the core of our great system. But if we are going to look at 
long-term returns, we ought to take and have to take into consideration 
factors--in many cases, factors that may not have been as relevant 30, 
50, 70 years ago. Some are going to say we can't look at those.
  Unfortunately, my colleagues across the aisle have decided to take 
away a useful term, a useful set of analyses, something that has been 
asked for by these pension funds, by these beneficiaries, and instead 
try to turn it into a political issue.
  Let me recall back 75 years ago. If you look at the Fortune 500 and 
the companies that were involved in that Fortune 500, about roughly 75 
to 80 percent of those companies' assets were tangible assets. What 
does that mean? It means it was their plant. It was their equipment. It 
was their machinery.
  Fast-forward--and a lot of this is due to great innovation in the 
technology field--and those same Fortune 500 companies are dramatically 
different than the companies named 60, 70 years ago. If you look at 
their balance sheets today, 75, 80 percent of their assets are 
intangible assets. What are intangible assets? Intangible assets are 
things like intellectual property, and that is coming about from a 
healthy workforce. But more than anything else, it is the men and women 
who work at these firms. Virtually every CEO I have heard from in the 
last 10 years has said: My biggest asset is my workforce.
  The idea that somehow--because ESG is not just E; it is also S, and 
that falls into workforce--the idea that somehow a pension fund can't 
look at workforce retention, workforce quality, workforce 
characteristics as a measure of what they want to invest in, to me, is 
a little whacky.

  Let me actually call on a reference sort person, whom I hope my 
colleagues on the other side of the aisle will acknowledge, and that 
was President Trump's Chairman of the SEC, the Securities and Exchange 
Commission, Jay Clayton, whom I had a very good working relationship 
with. He said that human capital disclosures can and should inform 
investment decisions.
  Chair Clayton said:

       Our current disclosure requirements date back to a time 
     when companies relied significantly on plant, property, and 
     equipment to drive value. Today, human capital represents an 
     essential driver of performance for many companies albeit in 
     different ways.

  So under Mr. Trump's SEC, there was a rulemaking process that started 
to make sure that human capital components can be an appropriate focus 
of reviews, particularly for companies and entities that want to invest 
for the long term.
  I am concerned that this approach we are taking today might 
indirectly preclude those fiduciaries who represent pension funds, 
long-term investors--they are no longer going to be able to actually 
look at this critical criteria around human capital.
  The other thing is, the Department of Labor rule--and I know a lot of 
my colleagues have spoken to this and talk about: Well, what about the 
environment? I think we all would recognize or most of us would 
recognize the fact that climate change is real and poses a rapidly 
growing threat to the long-term feasibility of investments made on 
behalf of hard-working Americans.
  While this Department of Labor rule won't direct our Armed Forces, I 
think it is really important to understand that the FFRDCs, the 
federally funded research and development corporations--the RANDs, the 
MITREs, the CNA, which does naval work analysis, federally funded--if 
we are going to apply these same kinds of Department of Labor 
prohibitions on our Armed Forces, we couldn't allow the CNA to look at 
the long-term effects on the Navy--and I don't want to give away a 
secret here, but they have been looking at this issue for over 20 
years--that they couldn't make those kinds of predictions about what 
effect sea level rise would have on our Navy.
  I tell you, we are blessed in the Commonwealth of Virginia to have 
the world's largest Navy base, in Norfolk, and I can assure you, 
virtually every year or every other year, we have to raise the piers, 
literally spend hundreds of millions of dollars to raise the piers to 
make sure that Navy base can still be utilized.
  So if it is a smart enough, good enough requirement that the Navy and 
our Armed Forces are looking at the E of ESG, why would we preclude the 
private sector from doing that?
  I think the Department of Labor's rule on ESG is both practical and 
necessary. I think those funds that chose not to abide by it, that is 
their right. That is what capitalism is all about--making choices. But 
the notion that we are going to somehow come in and impose requirements 
on the market and take away long-term investors' ability to consider 
human capital, to consider the effects of climate change, and I have 
not even touched--I know we are going to have to go to a vote--on 
issues around corporate governance, all which can lead to, longer term, 
better returns. If this was a rule about day traders and quarter-to-
quarter hedge fund folks, I might get it. But in terms of protecting 
the long-term value creation in long-term sustainable capitalism, I 
think this effort today sadly misses the mark and will do a great deal 
of damage.
  I urge my colleagues, when the vote comes, to vote against the CRA.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Murphy). Without objection, it is so 
ordered.


                              H.J. Res. 30

  Mr. SCHUMER. Mr. President, I have to admit I come to the floor sort 
of confounded. For a long time, my Republican friends prided 
themselves--prided themselves--for being the party of free markets, the 
party of small government, the party opposed to injecting political 
ideology into the decisions of private investors and managers and 
companies. But apparently all that was talk because, today, our 
Republican friends are making an effort to limit free market choice and 
inject hard-right ideology into private sector decision making. 
Republicans are attempting to force corporations and managers, against 
their will, to turn back the clock 50 years, even if it means getting a 
lower return on investment--even if it means getting a lower return on 
investment.
  Now, the facts here are not difficult. The Department of Labor 
recently introduced a rule recognizing that retirement fiduciaries may 
consider ESG factors when making investment decisions. The Republican 
proposal, meanwhile, wants to undo that rule, and, across the country, 
Republican State legislators are trying to punish managers who dare 
consider, on their own volition, ESG.
  Note, Mr. President, that I said ``may''--not ``must''--when 
describing the rule because the rule that the DOL has put in effect is 
completely optional. Let me repeat that. The DOL

[[Page S556]]

rule is completely optional while the Republican measure is a mandate. 
In fact, the current rule goes out of its way to make sure that 
decision making remains solely in the hands of the fiduciary. Nothing 
changes the fact that investment decisions must be shown to be prudent 
above all else.
  Now, the hard right has made a lot of noise trying to make ESG their 
dirty little acronym. They say this is about wokeness, that this is a 
cult, that it is some grave intrusion into finance. It is the same 
predictable, uncreative, unproductive attacks they use for anything 
they don't like.
  But this isn't about ideological preference. ESG is about looking at 
the biggest picture possible so the investors can make decisions that 
decrease risk while increasing returns. In fact, more than 90 percent 
of S&P companies already publish ESG reports today. So none of this is 
new. It has been a long-established practice, one that Republicans 
suddenly say they don't like and want to forbid.
  But why shouldn't managers evaluate the risks posed by an 
increasingly volatile climate if they deem it helps them get a return 
on their investment? Why shouldn't they consider the consequences of an 
aging population or other trends that could impact their portfolio? And 
even a better question is this: Why are Republicans going out of their 
way to prohibit investors from making the best possible choices as they 
manage their funds? Why are Republicans trying to forbid investors from 
considering climate and other factors if they believe it would help 
them get a better return?
  The bottom line is this: The present rule gives investment managers 
an option. The Republican rule, on the other hand, ties investors' 
hands. Republicans talk about their love of the free market, small 
government, letting the private sector do its work, but their obsession 
with eliminating ESG would do the opposite, forcing their own views 
down the throats of every company and investor. The Republican 
amendment, again, would force their own views down the throats of every 
company and investor.
  You know what we say on this side? Let the market work. If that 
naturally leads to consideration of ESG factors, then Republicans 
should practice what they have long preached and get out of the way.
  I thank my Democratic colleagues who are joining us in opposition to 
this measure.
  I yield the floor and call the question.
  The PRESIDING OFFICER. The clerk will read the title of the joint 
resolution for a third time.
  The joint resolution was ordered to a third reading and was read the 
third time.


                          Vote on H.J. Res. 30

  The PRESIDING OFFICER. The joint resolution having been read the 
third time, the question is, Shall the joint resolution pass?
  Mr. BRAUN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. 
Feinstein), the Senator from Pennsylvania (Mr. Fetterman), and the 
Senator from Oregon, (Mr. Merkley) are necessarily absent.
  Mr. THUNE. The following Senator is necessarily absent: the Senator 
from Idaho (Mr. Crapo).
  The result was announced--yeas 50, nays 46, as follows:

                      [Rollcall Vote No. 35 Leg.]

                                YEAS--50

     Barrasso
     Blackburn
     Boozman
     Braun
     Britt
     Budd
     Capito
     Cassidy
     Collins
     Cornyn
     Cotton
     Cramer
     Cruz
     Daines
     Ernst
     Fischer
     Graham
     Grassley
     Hagerty
     Hawley
     Hoeven
     Hyde-Smith
     Johnson
     Kennedy
     Lankford
     Lee
     Lummis
     Manchin
     Marshall
     McConnell
     Moran
     Mullin
     Murkowski
     Paul
     Ricketts
     Risch
     Romney
     Rounds
     Rubio
     Schmitt
     Scott (FL)
     Scott (SC)
     Sullivan
     Tester
     Thune
     Tillis
     Tuberville
     Vance
     Wicker
     Young

                                NAYS--46

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Gillibrand
     Hassan
     Heinrich
     Hickenlooper
     Hirono
     Kaine
     Kelly
     King
     Klobuchar
     Lujan
     Markey
     Menendez
     Murphy
     Murray
     Ossoff
     Padilla
     Peters
     Reed
     Rosen
     Sanders
     Schatz
     Schumer
     Shaheen
     Sinema
     Smith
     Stabenow
     Van Hollen
     Warner
     Warnock
     Warren
     Welch
     Whitehouse
     Wyden

                             NOT VOTING--4

     Crapo
     Feinstein
     Fetterman
     Merkley
  The joint resolution (H.J. Res. 30) was passed.

                          ____________________