House Committee on Education and the Workforce Markup of ERISA Bills H.R.5339, H.R.5337, H.R.5338, H.R.5340

House Committee on Education & the Workforce
Markup of H.R.5339, H.R.5337, H.R.5338, H.R.5340
Thursday, September 14, 2023


  • Markup of H.R.5339, H.R.5337, H.R.5338, H.R.5340 resulted in all bills being approved for the House to consider on the floor.
  • No proposed amendments to the texts of the bills were approved.


  • H.R.5339, the RETIRE Act
  • H.R.5337, the Retirement Proxy Protection Act
  • H.R.5338, the No Discrimination in My Benefits Act
  • H.R.5340, Providing Complete Information to Retirement Investors Act

Opening Statements
Chairwoman Virginia Foxx (R-NC)
The Committee will be considering four bills to combat the ESG investing rule promulgated by the Biden Administration:

  1. H.R.5339 ensures that retirees’ savings are invested based on economic factors rather than woke social or political factors.
  2. H.R.5337 ensures that the retirement plan managers act as dutiful and prudent fiduciaries when proxy voting.
  3. H.R.5338 ensures that race and sex are not factors in the selection of service providers for an IRISA plan.
  4. H.R.5340 ensures notice for contribution plans under ERISA with respect to participant directed investments.

Ranking Member Bobby Scott (D-VA)

  • Regrettably, some of these bills are benign or non-controversial while others are divisive, partisan, and will undermine the economy. We are considering bills that interfere with workers’ retirement investments and waste the Committee’s time.
  • These bills are baseless efforts to undermine the DOL.
  • The evidence is clear that the Biden Administration’s economic agenda is working.
  • These bills inject partisan politics into workers’ decisions for retirement.

Consideration of H.R.5339
ANS by Rep. Rick Allen (R-GA)
The amendment wasn’t agreed to (19 Ayes – 23 Nays); H.R. 5339 was agreed to (23 Ayes – 19 Nays)

Rep. Rick Allen (R-GA)

  • This legislation comes as financial institutions become more brazen in inserting partisan and ideological preferences when investing Americans’ hard-earned retirement savings.
  • Considering ESG factors amounts to hijacking other people’s money for left-wing activism.

Ranking Member Bobby Scott (D-VA)

  • People want to be able to invest their retirement savings in ways that reflect their priorities.
  • I want to support their ability to do so.
  • This bill codifies the Trump Administration’s rule on ESG investing.

Rep. Eric Burlison (R-MO)

  • It takes a lot for people to pull the trigger and invest their money.
  • There is a tremendous burden that you want to make sure that your clients are being managed well and that they don’t lose money.

Rep. Mark DeSaulnier (D-CA) – Amendment

  • My amendment would codify the Biden Administration’s ESG rule.
  • This rule would permit, but importantly not require, plan fiduciaries to consider ESG factors.
  • It would maintain the long-standing statutory duty of individuals not to sacrifice investment returns for their clients.
  • This is a commonsense approach to the ESG rule.

Chairwoman Virginia Foxx (R-NC)

  • This amendment advances a radical leftist agenda at the expense of those investing in their retirement funds.
  • ESG funds are notoriously underperforming.

Consideration of H.R.5337
ANS by Chairwoman Virginia Foxx (R-NC)
The amendment wasn’t agreed to (19 Ayes – 23 Nays); H.R. 5337 was agreed to (23 Ayes – 19 Nays)

Chairwoman Virginia Foxx (R-NC)

  • When folks are saving and investing for their retirement, the most important thing on their mind isn’t gender ideology or other woke ideas.
  • Their priority is ensuring their retirement plans maximize returns, especially in an uncertain economy.
  • My amendment would keep the soundness of retirement plans by codifying the Trump Administration’s proxy regulations and would also require that fiduciaries maintain records and prudently monitor proxy voting activities for compliance with ERISA should they choose to delegate the authority to exercise shareholder rights to a third party.

Ranking Member Bobby Scott (D-VA)

  • The Department of Labor has been consistent on proxy voting issues and has remained consistent over the decades that voting proxies pertinent to a plan’s investment is a fiduciary duty.
  • Fiduciaries were not required to vote on all proxies.
  • We should not turn the clock back and codify the Trump era proxy voting rule.

Ranking Member Bobby Scott (D-VA) – Amendment

  • This amendment would codify the Biden Administration’s proxy voting rule.
  • In March 2021, the Biden Administration announced that it would not enforce the Trump Administration proxy voting rule and that it intended to revise the rule in the future.

Chairwoman Virginia Foxx (R-NC)

  • The Biden Administration is ignoring foundational principles of prudence and loyalty to promote activist agendas.

Consideration of H.R.5338
ANS by Rep. Bob Good (R-VA)
H.R. 5338 was agreed to (23 Ayes – 19 Nays)

Rep. Bob Good (R-VA)

  • On day one of his presidency, Biden pursued a radical equity agenda.
  • The Department of Labor erected a vague tiebreaker loophole that has increased ESG investing to the law’s long-standing provision that fiduciaries must base investments on economic factors alone and not woke social factors, like the race or sex of a person.
  • Fiduciaries are now under immense pressure from the left to waste such social calculations above financial prudence and loyalty to investors.

Ranking Member Bobby Scott (D-VA)

  • This law has flawed the ideals of this side of the aisle related to increasing diversity among asset managers.
  • This bill is likely to maintain a low percentage of minority and women-owned firms that manage investments.
  • We should be doing more, not less, to increase the diversity of asset managers and the private sector and the federal government.

Consideration of H.R.5340
ANS by Rep. Jim Banks
H.R. 5340 was agreed to (23 Ayes – 19 Nays)

Rep. Jim Banks (R-IN)

  • When it comes to making smart investment decisions, American retirees and workers deserve to have the fullest information possible.
  • This bill amends the Employee Retirement Income Security Act to give Americans full information about the choices they make and defined contribution plans.
  • We should all support choice and opportunities for maximum returns on retirement investments.
  • Investors should understand that they may experience diminished returns, higher fees, and higher risk if they decide to gamble with ESG factors.

Rep. Suzanne Bonamici (D-OR)

  • I’m not aware of any recent DOL enforcement actions targeted at brokerage windows.
  • This bill appears to require notice each time a participant makes an investment into or out of a brokerage window investment.
  • This notice is clearly intended to discourage participants from using the brokerage window.


For more information on this meeting, please click here.
For an archive of past SIFMA hearing coverage, please click here.