Senate Committee Approved EBSA Candidate – Again

The old adage that “if at first you don’t succeed, try, try again” seems to apply to President Biden’s nominee to lead the Benefits Security Administration (EBSA).

For the second time in less than two months, the Senate Committee on Health, Education, Labor and Pensions (HELP) has approved the appointment of Lisa Gomez to the position of Assistant Secretary for EBSA at the Department of Labor . The Committee voted Jan. 13 on a near-party line vote of 12 to 9, with Sen. Lisa Murkowski (R-AK) the only Republican to vote in favor of Gomez’s nomination.

The Committee had approved Gomez in early December, but his nomination was not considered by the full Senate before the chamber adjourned for the year.

Under Senate rules, nominations unconfirmed at the end of a legislative session are not allowed to carry over to the next session and must be resubmitted. In many cases, this rule is waived, but this was not the case for Gomez.

So, when it looked like his nomination was in jeopardy, President Biden resubmitted his nomination on January 4. However, Gomez still faces hurdles as she must be reviewed and approved by the full Senate.

Gomez has been waiting for a while. She was originally appointed in July 2021, but the HELP committee did not hold a hearing until October. Following that hearing, his nomination was put on hold because Republican members wanted to further his perspective on environmental, social, and corporate governance investing.

Gomez is currently a partner at the law firm of Cohen, Weiss and Simon LLP, representing employer and union pension plans. She joined the firm in 1994, became a partner in 2002 and currently chairs the firm’s management committee.

If Gomez is confirmed by the Senate, she would replace Ali Khawar, who served as EBSA’s acting deputy secretary and would remain principal deputy undersecretary. Some of the key items that remain on the EBSA regulatory agenda include:

  • an upcoming proposal reviewing the definition of fiduciary, as well as possible additional changes to existing prohibited transaction exemptions;
  • finalize a proposed rule on “Prudence and fairness in the selection of plan investments and the exercise of shareholder rights” with respect to ESG considerations and proxy voting;
  • publication of potential additional guidance regarding collective employer plans under the SECURE Act;
  • finalize guidance for the SECURE Act and related revisions to annual Form 5500 reporting requirements; and
  • issue a final rule under the SECURE Act regarding lifetime income illustrations.

Andrew B. Reiter