Tag: Securities and Exchange Commission

SEC’s Climate Disclosure Scheme Is a Mess


The Securities and Exchange Commission (SEC), which recently flexed its muscles to expand regulations over private equity firms, is at it again. Only this time, the stakes are far higher: its tedious 506-page proposal for mandated disclosures relating to climate change will expose every major corporation in the United States to unending administrative meddling.

As with the private equity proposal, the new SEC initiative provoked a detailed and powerful response from SEC Commissioner Hester Peirce, who disputed virtually every assertion made by the three-member Democratic majority, headed by SEC Chairman Gary Gensler. Gensler claims that the new rules will allow for greater consistency and comparability of the anti-global-warming efforts of different companies. Peirce responds instead that the SEC diktat will force each company to make so many ad hoc factual assumptions that the new findings will be indigestible by the very investors whom it is said to inform and protect. The Democratic majority claims that expanded climate disclosures are always material to prudent investors, citing in support of its position the general remarks of BlackRock CEO Larry Fink, who insists that the threat of global warming requires a “Fundamental Reshaping of Finance.” Peirce responds that the definition of materiality extends only to cover information that private parties use to make investment decisions, but does not cover matters of general public affairs as defined by the ESG—environmental, social, and governance—movement, which often subordinates firm welfare to advance highly intertwined matters of environmental protection and social responsibility. She further insists that these marginal explorations fall outside the statutory authority of the SEC, which contrasts with the Democratic majority’s view that this vast initiative lies at the core of the SEC’s statutory mission.

On balance, Commissioner Peirce has the best of these arguments. But, at this time, I shall go off into a different direction to see whether, wholly apart from these technical legal issues, the entire exercise is worth the candle. On this score, what is so disconcerting about the SEC’s new initiative is how little attention it pays to the central questions that should be preconditions for adopting the novel program in the first place. Here, I can deal with only three of these issues. The first is whether the SEC has demonstrated that global warming is such an existential threat that this bold initiative is warranted. The second is whether the proposed initiative can curb the supposed adverse effects of global warming. And the third is, assuming that the initiative could in the abstract curb such purported effects, whether the proposed institutional design achieves that outcome.

James R. Copland joins Rafael Mangual to discuss how activist investors are turning corporate America’s annual shareholder-meeting process into a political circus.

Most of corporate America is wrapping up the 2019 “proxy season” this month—the period when most publicly traded companies hold their annual meetings. It’s at these gatherings that shareholders can (either directly or by proxy) propose and vote on changes to the company. Since 2011, the Manhattan Institute has tracked these proposals on its Proxy Monitor website. This year’s proxy season has followed a long-term trend: a small group of investors dominates the proceedings, introducing dozens of progressive-inspired proposals on issues ranging from climate change to diversity.

Miscarriage of Justice at the SEC


The United States Constitution lays out the principle of the separation of powers in three simple steps. Article I of the Constitution gives Congress the power to make the laws of the United States. Article II entrusts the President to take care that the laws be faithfully executed, usually through the actions of other executive branch individuals. Article III then charges the federal courts with applying the laws passed by Congress and enforced by the executive branch when deciding cases and ordering remedies. This constitutional structure avoids concentrating excessive power in any one branch—a protection that is lost when all three functions are put in the hands of a single agency.

Thanks to the rise of the administrative state, agencies like the Securities and Exchange Commission are taking over responsibility for all three functions. The agency promulgates extensive regulations that have the force of law, which it then enforces against individual defendants, often in an SEC tribunal, not in an Article III court. This cozy arrangement is now being tested in Lucia v. Securities and Exchange Commission, argued last week before the Supreme Court.

Before his run in with the SEC, Raymond J. Lucia was an investment professional who regularly gave complimentary public presentations on his “Buckets of Money” (BOM) strategy for individual retirees. BOM starts with a diversified stock portfolio in which low-risk investments are sold first, allowing high-risk investments more time to appreciate. Lucia’s standard presentation relied on a large deck of slides, two of which gave “hypothetical” examples of how this strategy might work. The SEC ultimately determined that these slides were seriously misleading, even though they had repeatedly passed muster before a private industry group known as FINRA (The Financial Industry Regulatory Authority) and had previously been presented to the SEC, which had raised no objection to them. None of the 50,000 people who attended these presentations over the years filed any complaint against Lucia, let alone lost any money. At these presentations, Lucia asked attendees to contact him directly if they wanted additional personal advice.

Obama, a Modern-day Lucius Mummius Achaicus?


The number of Obama Administration attacks on private industry are simply too numerous to count. A Google search of the Environmental Protection Agency’s “War on Coal” produces more than 2.8 million results! But the onslaught isn’t reserved only to the energy industry. The private sector “zone” is so flooded by relentless federal pressure that many of these regulatory crusades fail to get noticed anymore.

One such Presidential war that has largely escaped notice is the effort to obliterate for-profit higher education which the free market produced to fill in the gaps in service from the public and non-profit universities.