Mr. Speaker, the following trade association letters are offered for the record in opposition to H.R. 3269 in order to supplement my remarks during debate: July 30, 2009. To the Members of the U.S. House of Representatives Re Opposition to…
Mr. Speaker, the following trade association letters are offered for the record in opposition to H.R. 3269 in order to supplement my remarks during debate:
July 30, 2009.
To the Members of the U.S. House of Representatives
Re Opposition to H.R. 3269, Corporate and Financial
Institutional Compensation Fairness Act of 2009.
The undersigned organizations strongly oppose H.R. 3269,
the ``Corporate and Financial Institution Compensation
Fairness Act of 2009.'' We believe that the bill would result
in substantial unintended consequences, especially the
mandatory annual vote on pay requirement in section 2 and the
precedent-setting authority granted to the federal government
over executive and employee compensation in section 4. In
sum, we believe the bill would result in a ``one-size-fits-
all'' approach to compensation that would have substantial
negative implications for proper functioning of the corporate
governance process, responsible growth, and effective risk
mitigation that, when coupled with other proposed
legislation, would extend well beyond the financial services
industry.
Each of our organizations fully supports effective measures
to increase awareness and mitigation of excessive risk in
compensation. We believe that the board of directors, acting
through an independent compensation committee, should be
responsible for setting compensation because it is so closely
linked to business strategy and succession planning. While
many have developed and circulated principles to improve
compensation and corporate governance, companies across all
industries are taking steps to reinforce their understanding
of these issues and are taking action to revise practices
that may encourage excessive risk taking. Many of these
changes, such as majority voting for directors, independent
compensation committees, advisory Say on Pay votes,
eliminating staggered boards, have been occurring on a
company by company basis for a long period of time, without
government mandates.
Government Control over Compensation
We oppose Section 4 of the bill because it would give the
bank regulatory agencies authority to set the structure and
thus the amount of executive and employee compensation
provided in the form of incentives. While recognizing the
federal government's role in ensuring the safety and
soundness of our financial institutions, these provisions
would effectively transfer authority for determining how a
substantial part of compensation at these firms should be
structured from the Board (for executives) and the company
(for other employees) to a consortium of regulatory agencies.
Our concerns include:
The adoption of a one-size-fit all approach, which does not
accommodate a company-specific approach to pay. The financial
industry is expansive, and an incentive structure that may be
deemed risky at one organization may be perfectly acceptable
at another, depending on the company's business strategy, the
risk profile of the organization, and mitigating elements of
the total pay program. The legislation instructs the agencies
to take a one-size fits all approach by prohibiting pay
structures that ``could threaten the safety and soundness
of covered financial institutions.''
Even if a company-specific approach were taken, the federal
government has neither the experience nor expertise to set
executive compensation arrangements for a wide variety of
financial institutions. The legislation will replace the
informed judgment of the board of directors and compensation
committee with the cursory knowledge of a federal regulator,
eroding the authority of the board and its ability to closely
tailor compensation to the company.
The Obama Administration did not ask for such expansive
authority, no doubt a result of the interpretive and
enforcement problems created by the poorly crafted executive
compensation restrictions in the American Recovery and
Reinvestment Act, which caused several companies to shift
more pay to guaranteed salary, rather than reasonable
performance-based incentives, in order to comply.
In addition, because our associations represent companies
across a variety of industries, we are also extremely
concerned that this model of pay regulation would expand to
other industries or situations, further putting the federal
government in control of pay decisions for private companies.
This legislation would establish a form of compensation
regulation for employees who interact with consumers. Rather
than creating a new bureaucracy, we believe a more effective
approach to regulating risk in incentives would be to
establish a clear set of principles for mitigating risk
against which the regulatory agencies could review pay
arrangements.
A Mandatory Annual Vote on Pay
Beyond section 4 of the bill, we also oppose an annual
mandatory shareholder vote on executive compensation because
it does not achieve the ends sought by proponents, is not
sought by a majority of shareholders, and would not improve
clear communication between shareholders and the board. While
we oppose the requirement embodied in H.R. 3269, there may be
viable alternatives that were unable to be explored with the
limited time frame taken by the House Financial Services
Committee in considering this legislation.
The Board of Directors has a fiduciary duty for managing
the company on behalf of all shareholders. The board's
compensation committee is responsible for linking
compensation incentives to confidential business strategy,
aligning pay with the assessment of individual executive
performance, and using long-term incentives to support the
company's succession planning process. Annual say on pay
votes would push compensation structures away from a company-
specific approach to ``cookie-cutter'' arrangements designed
to ensure a high vote total.
Despite the economic environment, shareholder resolutions
seeking a say on pay have only received a majority support at
roughly 30 percent of the companies at which they were
offered in 2009. A 2008 independent study by a leading
academic found that among large institutional investors, only
25 percent supported a shareholder vote.
An annual mandatory vote requirement in the United Kingdom
has not reduced the overall level of compensation and has
resulted in less of a link between pay and performance.
Congressional attempts to regulate amounts or structures of
compensation have typically backfired--increasing
compensation or changing practices in unforeseen ways
contrary to the intent of the restrictions. One need look no
further then the history of stock options as a case study of
this premise. While we oppose H.R. 3269 in its current form,
because the legislation has been available for only a short
time, we believe that more time is warranted to give Congress
and interested parties an opportunity to fully analyze and
discuss the potential for harmful unintended consequences.
Thank you for your consideration of our views. We look
forward to working with you on this and other legislation.
Sincerely,
Center for Executive Compensation, National Association
of Manufacturers, Retail Industry Leaders Association,
U.S. Chamber of Commerce.