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S.523 - Freedom to Invest in a Sustainable Future - Fiduciary Duty Upgrade, Revisited


Gratifying Affirmation and Instantiation of Principle from our April post

Just discovered S.523 - Freedom to Invest in a Sustainable Future Act, which shows congress folk have long been onto this concept of upgrading Fiduciary Duty for the Post-Automation Era.

This is more often the case than a divisive, defeatist, and fear-mongering MSM dare report – public policy work is ridiculously friggin complex and nuanced as ChatGPT’s snarky, condescending narcissism predictably and yet often accurately pontificates. Albeit, by way of some kind of apparently increasingly bizarre Bayesian bombast.

Add to this the general psychogenic epidemic of Dunning-Kruger Effect widely distributed throughout any general population, which goes something like this: “Those people doing the real work of governance must all be idiots, or my life would be better. If I were democratic despot and dictator, there’d be world peace.”

If you or I were dictator, we’d still be a dictator. So, yeah, no.

If all that wasn’t bombastically stupid and poorly written enough for you, just wait till you get a load of this idiotic idea: instead of having to fix every individual program, would it be ridiculous to FIX THE CORE ISSUE once and for all with Twenty-First Century American Economic Acceleration Act?

ERISA Patch for Freedom in Fiduciary Duty

Subsection (a) of section 404 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1104) is amended by adding at the end the following new paragraph:

“(3) (A) Provided that a fiduciary discharges the fiduciary’s duties with respect to a plan in a manner otherwise consistent with this subsection, a fiduciary may—

“(i) consider environmental, social, governance, or similar factors, in connection with carrying out an investment decision, strategy, or objective, or other fiduciary act; and

“(ii) consider collateral environmental, social, governance, or similar factors as tie-breakers when competing investments can reasonably be expected to serve the plan’s economic interests equally well with respect to expected return and risk over the appropriate time horizon.

“(B) In a case described in clause (i) or (ii) of subparagraph (A), a fiduciary shall not be required to maintain any greater documentation, substantiation, or other justification of the fiduciary’s actions relating to such fiduciary act than is otherwise required under this part.

“(C) Nothing in this part shall preclude an investment selected in accordance with clause (i) or (ii) of subparagraph (A) from being treated as a default investment or a component of such a default investment (as described in regulations issued by the Secretary under subsection (c)(5)(A)), if such investment would otherwise qualify for such treatment under such regulations.”.

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Written on July 2, 2023