ERISA’s 48th Anniversary Passes Without a Senate Vote on EBSA Head

On September 6, Senator Patty Murray, D-Washington, published a press release and accompanying resolution calling for the confirmation of Lisa Gomez as assistant secretary of labor for the Employee Benefits Security Administration and emphasizing the importance of Employee Retirement Income Security Act.

Murray, chair of the Senate Health, Education, Labor and Education Committee, noted in the release that approximately 142 million employees are covered by ERISA, as well as 730,000 employer-sponsored plans.

Gomez was nominated in July 2021, and failed a confirmation vote on June 8 of this year because Vice President Kamala Harris was not present in the chamber to break the 50-50 tie.

Ali Khawar has been acting assistant secretary since March 2021. David Levine of Groom Law explains that there is no limit on Khawar’s authority relative to what Gomez’s will be if she is confirmed. He says “they can keep moving forward,” and notes that “EBSA is pretty active.”

There has been some Republican opposition to Gomez’s confirmation. Ranking committee member Senator Richard Burr, R-North Carolina, did not offer specific comment on his opposition during Gomez’s confirmation hearing before the committee.

Senator Tommy Tuberville, R-Alabama, hinted at one potential source of Republican opposition during the hearing when he asked, “Do you agree that a fiduciary should always act in the best economic interests of investors and work to maximize the investor’s total return on a risk-adjusted basis?”

Although Tuberville did not mention environmental, social and governance investments specifically, he is from a state whose attorney general was among the 19 who recently issued a joint letter to Blackrock criticizing the firm for using state pension fund assets in ESG investments. The letter asserts that ESG investing does not maximize returns on investment and does not satisfy the firm’s fiduciary duty, and instead only advances a “climate agenda.”

Tuberville’s office could not be reached for comment.

Lisa Gomez has been endorsed by the AFL-CIO, a federation of unions that traditionally supports Democrats and endorsed Joe Biden for president in 2020.

Ryan Meyers, a spokesperson with Senator Murray’s office, says there is no timetable for another floor vote on Lisa Gomez’s nomination. However, Dan Zielinski of the Insured Retirement Institute says he expects Gomez to be confirmed by the end of the year.