ESG Concerns Hinder DOL Nominee Confirmation

The U.S. Senate failed to confirm Lisa Gomez to lead the Employee Benefits Security Administration when Senator Lisa Murkowski (R-AK) unexpectedly voted against Gomez over policy concerns with the Biden administration’s proposed fiduciary ESG regulations. 

A proposed Labor Department rule is at issue: The proposal would enable, and sometimes require, retirement plan fiduciaries to consider ESG factors in making investment decisions, including 401(k) investment options. This has revived a longstanding debate about whether so-called “social investing” is consistent with a plan fiduciary’s obligation to ensure sound financial investments.

Vice President Harris wasn’t available to break the tie vote, and with Majority Leader Chuck Schumer (D-NY) changing his vote at the last minute, he can bring up the Gomez nomination for another vote when the Vice President is in town.

Sen. Murkowski’s vote wasn’t expected to result in a tie, as she had previously voted in favor of Gomez’s nomination twice in the HELP committee. However, she voted “no” on the floor Wednesday.

“When it came down to an up or down vote on confirmation—Senator Murkowski opposed Lisa Gomez’s nomination on the floor due to policy concerns with the Biden administration’s actions on fiduciary regulations and Gomez’s role in implementing those regulations as the head of EBSA,” a spokesperson for Murkowski said.

Outlook: The vote highlights the GOP’s united opposition to the Labor Department’s proposed ESG rule. While Lisa Gomez will eventually be confirmed by the Senate, there will be serious congressional oversight of the Labor Department’s ESG proposal should one or more chambers flip to GOP majorities next year.