Battle for Shareholder Rights Shifts to the SEC

By Frank Sherman

Within the toolkit of a shareholder, the right to propose resolutions for consideration by fellow shareholders is one of the most critical to influence corporate behavior (see SGI blog article posted last year). Further, other tools may be less effective without a robust right to propose resolutions. Many companies find a dialogue preferable to a resolution. Without the risk of a resolution, more companies may choose to forgo dialogues with shareholders. Thus, efforts to restrict shareholder rights are alarming, and those rights are under attack on a number of fronts.

Last year, the House of Representatives threatened this right with passage, along party lines, of the Financial Choice Act (H.R. 10) . The bill would have replaced large parts of the 2010 Dodd–Frank Act and increase the ownership threshold for filing resolutions from $2,000 to 1% of common stock outstanding, and extend the stockholding duration requirement from one year to three years (Harvard Law School Forum). The 1% threshold means that an investor would need about $10 billion in shares to file a resolution with Apple or Amazon and would foreclose the resolution process to all but the largest shareholders. In the Senate, the companion bill (S. 2155) got out of Committee but, fortunately, never made it to the floor.

Another bill aimed to regulate proxy advisory firms like Institutional Shareholder Services and Glass Lewis. As well, the recently proposed bipartisan Senate bill S. 3614 – Corporate Governance Fairness Act (Reuters) is less onerous than H.R. 4015 – Corporate Governance Reform and Transparency Act which passed the House last year (CNBC).

Legislative gridlock means that the battle shifted to the Security and Exchange Commission, who held a Proxy Process Roundtable on Nov 15th. In addition to the shareholder proposal rules, the Roundtable had panels on the proxy voting mechanics and technology and proxy advisory firms.

Investors were well represented in the Roundtable panels by the NYC pension fund, Trillium, CalSTRS, AFL-CIO, and Blackrock. Although opposing views were voiced by the Business Roundtable and the U.S. Chamber of Commerce, investor advocates had a compelling argument. In answer to the Chamber’s argument that the shareholder proposal process was one of the factors driving companies away from IPOs, Brandon Rees (AFL-CIO) noted that “the average public company receives a shareholder proposal only once every 7.7 years, and so it was preposterous to suggest that shareholder proposals were a reason companies avoided going public.” Harvard Law School Forum reported that “most panelists for this topic seemed to view the shareholder proposal system as relatively smooth functioning and didn’t offer that much criticism.”

Given these threats, SGI and some of our members submitted letters to the SEC supporting the current proxy rules as being fair and efficient. 

The topic of proxy process and rules returned to Congress last week when the Senate Banking Committee held a hearing on December 6th. The Chamber again testified that companies and their shareholders have been targeted over social and political issues that are unrelated to and, sometimes, even “at odds with” a public company’s long-term performance. Committee Chair Sen. Michael Crapo (R-ID) seemed to agree, stating “it is time to re-examine the standards for inclusion of these proposals as well as the need for fiduciaries to vote all proxies on all issues in light of the proliferation of environmental, social or political proposals, and the rise of diversified passive funds.” On the other hand, Michael Garland (NYC pension funds) defended shareholder rights and the proxy advisory firms stating “Many of those who are the subject of the proxy analysis do not like to be criticized and receive negative vote recommendations...”

SEC Chairman Jay Clayton amplified these attacks on shareholder rights in a speech at Columbia University on the same day. He indicated that review of the ownership and re-submission thresholds for shareholder proposals will be a priority item for the Commission in 2019.

While some will work to erode the rights of shareholders, we will continue to work with the investor community to protect the voice of shareholders.

Why you should be concerned about the 2018 Farm Bill

by Frank Sherman

Why should people of faith and socially responsible investors pay attention to this year’s Farm Bill? What may appear to be an innocent funding bill turns out to have a major impact on things we care about.

The Farm Bill is renewed every five years. It was initially conceived during the Great Depression to provide fair prices for both consumers and farmers, as well as access to quality food and protection for natural resources. In 1965, funding for the Supplemental Nutrition Assistance Program (SNAP or food stamps) was combined with the support for commodity prices into a single omnibus bill because neither bill was able to pass on its own. Food stamps now make up almost 80% of the Farm Bills’ funding helping over 45 million Americans.

In a recent article in The New Republic  (The Farm Bill Is Everything That’s Wrong With Congress), Alex Shephard argues that the 2018 Farm Bill has little to do with farms or farmers. Most of the debate revolves instead around a host of other issues, like the deep cuts and “work requirements” for the food stamp program and draconian immigration reforms. The House version of the 2018 Farm Bill, which passed by a narrow margin in June, includes harmful and unnecessary barriers to access, like burdensome work requirements. On the other hand, the U.S. Senate version protects SNAP and includes pilot programs to connect SNAP recipients to work through effective employment and training programs. It is now up to a Conference Committee to work out the differences.

In 1965, funding for the Supplemental Nutrition Assistance Program (SNAP or food stamps) was combined with the support for commodity prices into a single omnibus bill because neither bill was able to pass on its own. With food stamps now helping over 45 million Americans, making up almost 80% of the Farm Bill’s funding, this situation has grown only more dire under this polarized Congress. The House version of the 2018 Farm Bill, which passed by a narrow margin in June, includes harmful and unnecessary barriers to access, like burdensome work requirements. On the other hand, the U.S. Senate version protects SNAP and includes pilot programs to connect SNAP recipients to work through effective employment and training programs. It is now up to a Conference Committee to work out the differences.

The premise of the additional work requirements (there are already work requirements in the current SNAP program) in the House Bill — that somehow people who use SNAP are lazy — is fundamentally wrong. Most adults on SNAP work and nearly 70% of SNAP participants are in families with children. According to the Center on Budget and Policy Priorities, SNAP provides a nutritionally adequate diet to 1 in 3 children (here)! Research shows children who benefit from SNAP are likelier to have better health and educational outcomes as adults. Johns Hopkins Bloomberg School of Public Health’s Center report that a majority of registered voters oppose recent efforts to scale back SNAP food benefits and believe the government should be doing more to meet the needs of people facing food insecurity. However, pressure from the White House to pass the House version and the midterm elections to will make it difficult for GOP Senators to preserve their bipartisan bill.

Okay, so the Farm Bill is critical to the working poor. But what does it have to do with corporations that are not directly involved in food industry? Because SNAP supports millions of low wage workers working for Walmart, McDonald’s, Amazon and many others. 30% of Americans are working in jobs that barely lift a family above the poverty line, even if they were working full-time, year-round. SNAP also supports children who are their future employees! Research shows children who benefit from SNAP are likelier to have better health and educational outcomes as adults.

So what can you do about this? There has been a lot of support of the SNAP program from faith based groups (see Food Research & Action Center overview here). ICCR had a recent webinar where several faith groups and NGO’s described this urgent issue (recording here). The National Sustainable Agriculture Coalition website (here) provides a wealth of information on the farm bill process and actions you can take.

This may be crowded out of the headlines, but it is vitally important to us.

Investors call on Congress to reinstate TPS

The Interfaith Center for Corporate Responsibility, with signatures from SGI and 12 of its individual members, sent a letter to the leaders of Congress advocating for “Congress to allow TPS holders to remain in the country and pursue a path to naturalization.”

TPS, temporary protected status, established by Congress in the Immigration Act of 1990, is humanitarian program whose basic principle is that the United States should suspend deportations to countries that have been destabilized by war or catastrophe.

There are approximately 195,000 Salvadorans, 50,000 Haitians, and 2,550 Nicaraguans who are current beneficiaries of TPS status. In addition, there are 5,800 Syrian, 8,950 Nepali, and 57,000 Honduran TPS holders in the United States today. Of the total 10 countries with current TPS designations, approximately 330,000 people (or, adults and children) benefit from TPS. Many have resided in the U.S. for a significant period of time. For instance, more than one-half of El Salvadoran and Honduran, and 16 percent of the Haitian TPS beneficiaries have resided in the U.S. for 20 years or more.

Thanks to our members who individually signed on. May this week have fruitful in deliberations in the U.S. Senate. Again, to read the letter, please visit here.

Congress takes aim at shareholder rights

Frank Sherman, Associate Director Seventh Generation Interfaith

Many of the laws and regulations protecting the environment, consumer and worker rights, immigrants and minorities have been under attack of late. Now Congress is going after investor rights that have benefited investors, companies and society as a whole for nearly 80 years. Proposed legislation would prevent most investors from being able to file shareholder proposals with companies on key issues they want further action on, such as board governance matters, corporate policies or emerging risks like climate change. The shareholder proposal process is a critical tool in Seventh Generation Interfaith members’ ability to influence corporate behavior.

The Business Roundtable and the U.S. Chamber of Commerce have been lobbying for these changes for years. Among other changes, the minimum stock holdings would be increased from $2,000 in shares for one year to 1 percent of the company’s outstanding stock for three years in order to file resolutions. In effect, even the nation’s largest institutional investors, including the nation’s largest public pension funds, would not be able to file shareholder resolutions with companies.“The shareholder proposal language in the bill is clearly an overreach,” said Jonas Kron, Senior Vice President, Trillium Asset Management. “For example, raising the ownership requirement to 1% would leave only 11 investors with enough shares to file shareholder proposals at Wells Fargo. None of those investors have ever filed a shareholder proposal. In the mean time, smaller, but no less important, institutional investors in Wells Fargo have filed strongly supported proposals on a range of very important governance and management issues that should be raised with Wells Fargo management and directors.”

The amendment to the SEC rules, part of a larger bill (the Financial Choice Act, aimed at replacing the Dodd-Frank Act, has been proposed by House Financial Services Chairman Jeb Hensarling (R-Texas).  A hearing on the bill is scheduled for Wednesday, April 26.

Many of the country’s largest investors are registering strong opposition to the legislation.  A recent report published by Ceres in collaboration with ICCR and US SIF: The Forum for Sustainable and Responsible Investment, outlines numerous benefits investors have seen from the shareholder proxy tool, including inclusion of more independent board directors, stronger disclosure on political spending, widespread adoption of international human rights principles and wide-ranging actions to mitigate climate change risks. Last year, investors filed about 1,000 shareholder proposals with companies, including about 500 focused on corporate governance issues and more than 400 focused on environmental and social issues.

SGI lobbies Sen. Robert Portman to support a business supply transparency bill

Seventh Generation Interfaith and Region VI (Cleveland, Ohio) have co-signed a letter to Sen. Robert Portman (Ohio), requesting his support of a business supply transparency bill for this Congress.  Portman is a key member of the Senate Finance Committee, likely starting point of such a bill.  The effort is an attempt to resurrect the The Business Supply Chain Transparency on Trafficking and Slavery Act of 2015 (H.R. 3226/S.1968); last session’s version garnered great support from numerous socially responsible investors.