December 16, 1997Mr. Jonathan G. Katz
Re: Invitation for Comments: Charitable Giving by Public Companies - File No. S7-26-97
Dear Mr. Katz:
Burlington Northern Santa Fe Corporation ("BNSF" or the "Company") appreciates this opportunity to comment on two bills in the House of Representatives that would amend the federal securities laws with respect to charitable giving by public companies. H.R. 944 would require public companies in connection with their solicitation of proxies for stockholder meetings to include additional disclosure as to charitable contributions made during the preceding year, including the identity of and the amount provided to each donee. H.R. 945 would allow stockholders to participate in the designation of recipients of a company's charitable contributions on the basis of the share ownership. BNSF believes that neither of these bills is needed nor would be beneficial to the Company's charitable-giving efforts and the communities it serves, and that the costs of implementing them would far outweigh any benefits they may provide.
The disclosure required of H.R. 944 is unnecessary yet would be costly to implement. As with many public companies, BNSF's charitable contributions are managed largely through a not-for-profit foundation, Burlington Northern Santa Fe Foundation (the "Foundation"). The Foundation produces an annual report which is sometimes requested from non-profit organizations seeking to qualify under the Foundation's guidelines. The Foundation cannot recall BNSF stockholders ever asking for the report. The Foundation's annual Form 990-PF filed with the Internal Revenue Service is also available to the public upon request. While the information required by H.R. 944 is already available, there is no demand for it within the stockholder community.
In contrast to this lack of demand, distributing H.R. 944's required disclosure to tens of thousands of stockholders would be costly and burdensome. In addition to the costs of printing and mailing a report to each stockholder, the Company would also have to incur the fees and cost reimbursement required for brokers to distribute the material to the beneficial owners of the shares. However, this disclosure would not in our view be justified as providing meaningful information to stockholders about the Company's performance and its prospects or disclosure of other material information that form the basis for the federal securities laws.
The mandated involvement of stockholders in determining the recipients of corporate contributions required by H.R. 945 would, in our view, be an unwarranted and complex intrusion into the management of the Company's ordinary business affairs. In addition to being very costly, it would be infeasible to implement.
H.R. 945 would essentially substitute the judgment of voting blocs of stockholders for the Company's management in determining the recipients of its charitable giving. Through its subsidiary, The Burlington Northern and Santa Fe Railway Company, BNSF operates one of the largest railroad networks in North America, with some 35,000 route miles covering 28 states and two Canadian provinces. BNSF's employees live and work in thousands of communities, large and small, across the western two-thirds of the United States. The railroad and its employees serve these communities in many ways, not the least of which is through the volunteer efforts of its employees and charitable giving, whether through BNSF grants or Company matches of employee gifts.
BNSF strives to strategically align its corporate giving with its business goals and to be a good corporate citizen in the communities it serves and those in which its employees live. BNSF is thus able to assist the organizations that its employees support and those organizations for which employees volunteer their time. Through its Foundation, BNSF can help ensure that certain charities do not receive a disproportionate amount of support or duplicative support in light of the Company's various charitable fundraising activities. Involving stockholders would skew this process. Many communities and charities might not have the "weight" that large, national charities have and would lose out. Large charities could form coalitions -- perhaps even buying and selling shares in advance of different companies' annual meetings -- to command sufficient voting power to in effect grant themselves a dividend. This could completely sever the connection between the Company's business operations and the communities it serves. The annual voting process could also restrict the responsiveness of the Company's giving in disaster situations or to meet other time-sensitive needs, such as the Company's relief efforts to Midwest communities ravaged by the flooding of the Missouri and Red Rivers this past Spring. While H.R. 945 states that its stockholder voting process would not limit the ability of management to make additional contributions, corporate contribution budgets are necessarily limited and the overall effect of H.R. 945 would likely be to dramatically reduce the resources available for distribution to charitable organizations.
Implementation of the voting process that would be required by H.R. 945 would be a monumental if not impossible task. Unless the hundreds of thousands of charities that now have 501(c)(3) status with the Internal Revenue Service were reduced to 20 or less to be placed on a proxy card, the cards could not be electronically tabulated. The cost of manually tabulating proxy cards (such as would be the case for write-in votes) would be staggering. The likely result would be that many corporations would get out of giving entirely, a result that would seem to be counter-productive to whatever needs H.R. 945 is seeking to address.
For the reasons discussed above, BNSF believes that H.R. 944 and H.R. 945 would be costly to implement, would provide no benefit, and would be detrimental to the effectiveness of the Company's charitable contribution program.
Very truly yours,
Richard A. Russack
Vice President-Corporate Relations
and President, Burlington
Northern Santa Fe Foundation