ICR D.C. Insider: September 2023

By ICR

In the September 2023 edition of The ICR D.C. Insider, we share our insights and analysis about developments in Washington that could have an immediate and long-term impact on your business.

What’s Next In Washington

With Congress set to return from its summer recess, and President Biden and his team similarly poised to ramp up post-Labor Day, Washington has a full plate of policy priorities and political issues on its agenda.

• A Potential Government Shutdown – As the Federal Government’s FY2023 budget is set to expire at the end of September, Congress faces the daunting task of either passing 12 separate appropriations bills (the House has only passed one of them) or finding consensus for one, or more, short-term funding agreements, known as continuing resolutions. House Speaker Kevin McCarthy (R-Calif.) is working to navigate between groups of influential members, including conservatives who appear to favor a shutdown. He will only have 11 legislative days to get a deal done before the current spending plan expires on September 30. The Democrat-led Senate is not inclined to help House Republicans, even as the Appropriations Committee Chair and Vice Chair – Sens. Patty Murray (D-Wash.) and Susan Collins (R-Maine) – worked together to move all 12 of their bills through the committee before the August recess.
• China – Engagement around China and related issues continues to be a top priority for both parties in Washington and for candidates on the campaign trail. Commerce Secretary Gina Raimondo’s four-day visit to China in late August was seen as a success, leading to the creation of two bilateral groups: one to reduce trade tension through sharing information about U.S. export controls on technology and another to discuss other commercial disputes. The Secretary said she was “leaving with some optimism,” following a comment earlier in her trip that American companies have complained to her that China has become “uninvestible” due to fines, raids, and other actions that have made it risky to do business in China.

SEC

• Chair Gensler on Capitol Hill – Securities and Exchange Commission (SEC) Chair Gary Gensler is poised to testify before Congress twice this September – once before the Senate Banking Committee on September 12^th and then in front of the House Financial Services Committee on September 27^th. He is likely to face questions across myriad issues.
• Private Funds Rule Approved & Litigation Launched – With a 3-2 party line vote, the SEC approved sweeping new rules to overhaul the way private equity and hedge fund firms deal with their investors and shine a light on the fees and expenses the funds charge. Afterward, the Managed Funds Association (MFA), the trade association for the global alternative asset management industry, joined by five other trade associations, sued the SEC to prevent the new rules from taking effect.
• Slew of New Rules Poised for Final Approval – Following the release of the SEC’s semiannual rulemaking agenda in in mid-June 2023 – and after subsequent rule approvals – the Commission had 30 rulemakings slated for final approval on its short-term agenda, as of August 23^rd. The 20 rules slated for adoption in the Fall of 2023, include the climate change disclosure rule, new disclosure rules on short sales, as well as the new rules on SPACs. As for the climate change rule, more than 75 House Democrats wrote to Gensler in August urging final approval “as quickly as possible.”

PCAOB

• Proposal to Expand Role of Auditors Challenged – New standards proposed by the Public Company Accounting Oversight Board (PCAOB) in June continue to face opposition from business and conservative groups, as well as Republicans in Congress. The proposed changes would require auditors to identify any laws and regulations that could reasonably have a material effect on a company’s financial statements. Critics contend that the proposal would, in effect, require auditors to consider every area of law, in virtually every country where the company operates. Auditors would also have to analyze any potential violations regardless of whether  they are actually material or relevant to a company’s business.

FTC

• Effort to Change Merger Policies Moves Forward – With two key developments, efforts by the Federal Trade Commission (FTC) and the Justice Department’s Antitrust Division are moving forward:
  • The two agencies will conduct a workshop to facilitate public dialogue on the previously-announced 2023 Draft Merger Guidelines on September 5^th.
  • The deadline for the public to submit comments on proposed changes to the premerger notification form and associated instructions, as well as the premerger notification rules implementing the Hart-Scott-Rodino (HSR) Act, has been extended until September 27^th.

Additional Key Developments

• National Labor Relations Board (NLRB) – A 3-1 decision by the NLRB in August threatens to impose collective bargaining on employers and employees without a secret ballot election, among other things. Prior to this ruling, if a union presented an employer with signature cards and demanded recognition, an employer could decline to recognize the cards. Under this new standard, the burden is now on the employer to petition the NLRB for a secret ballot election. If an employer does not do so, and the NLRB suggests a 14-day time limit, the NLRB will certify the union based on signature cards alone – and demand that the employer begin collective bargaining. Also, if the NLRB decides that the employer has committed any unfair labor practices during the election window, it has given itself the discretion to reject the election petition and certify the union based on the signature cards. In other words, the NLRB will recognize the union based on signed authorization cards, better known as Card Check.
• Labor Department – Workers who make around $55,000 per year, or $1,059 per week, or less would be guaranteed overtime pay under a Labor Department plan. About 3.6 million more workers would be eligible. The proposed rule would raise the annual salary threshold from the current $35,568 a year, set at the start of 2020. The proposal would also start to automatically raise the overtime salary threshold every three years, effectively allowing the level to be adjusted for inflation.
• House Republicans Target Proxy Advisors on ESG – The House Judiciary Committee sent letters to Institutional Shareholder Services (ISS) and Glass Lewis asking for documents related to agreements they may have with other proxy firms, asset managers, stockholder engagement service providers, and climate alliances or initiatives. The letters state the proxy firms appear “to have colluded with institutional investors to force American corporations to ‘decarbonize’ their assets and reduce their emissions to net zero.”
• China – Key developments include:
  • President Biden signed an Executive Order (EO)banning investment by S. companies in key Chinese technology sectors. The EO is also designed to prevent the transfer of American know-how from top private equity and venture capital firms. Specifically, it would:
    • Stop U.S. individuals and institutions from making equity investments in Chinese companies involved in the development or production of artificial intelligence, quantum information technologies, and semiconductors/microelectronics. Related M&A, greenfield, and joint venture transactions would also be blocked.
    • There would be carveouts for passive public equity investments, including in Exchange Traded Funds (ETFs), and for debt investments that aren’t structured as convertible notes. Also exempted would be limited partner commitments into venture capital or private equity funds.
    • The rule would not be retroactive following final implementation (although The Treasury Department wants to be notified of deals during the period from the announcement to implementation).
  • Mike Gallagher (R-Wisc.), Chairman of the House Select Committee on the Chinese Communist Party, said of the EO: “President Biden’s long-awaited executive order is a small step in the right direction, but the loopholes are wide enough to sail the PLA Navy fleet through, and it doesn’t address the passive flows of U.S. money into malign CCP-affiliated companies. Congress needs to step up now and ensure we stop funding the CCP’s military buildup, techno-totalitarian surveillance state, and human rights abuses including the ongoing genocide in Xinjiang.”
  • Gallagher – along with Sen. Josh Hawley (R-Mo.) and Select Committee members Reps. John Moolenaar (R-Mich.), Rob Wittman (R-Virg.), and Darin LaHood (R-Ill.) – also introduced the Dump Investments in Troublesome Communist Holdings Act (DITCH Act). The bill would force non-profits, university endowments, public pension plans, and any other tax-exempt entity to divest from Chinese companies or lose their tax-exempt status.