More On Legal & Compliancefrom The Advisor's Professional Library
- Suitability and Fiduciary Duty Recommending suitable investments is more than just a regulatory obligation. Many investors bring cases claiming lack of suitability, so RIAs must continuously put the onus on clients to notify the advisor of changes in their financial situation.
- Client Communication and Miscommunication RIA policies and procedures must specify what type of communications should be retained. The safest course of action is for RIAs to retain all communicationsto clients, from clients, and about client accounts. To comply with fiduciary obligations, communications must be thorough and not mislead.
The Republicans’ victory in taking over the House of Representatives in the midterm elections on Nov. 2 means that they will do their best to repeal health care reform and loosen the reins of regulation—particularly regarding the implementation of the Dodd-Frank Act. But Democrats maintained control in the Senate, which will make it difficult for anything to get done.
At press time, nine House races were still undecided, but Republicans gained 60 seats, giving the GOP 240 seats and Democrats 187. In the Senate, the Republicans failed to gain enough seats to wrest control from the Democrats, who hold a 53–47 majority.
Joe Lieber, senior policy analyst for Washington Analysis, gave his post-election predictions on a conference call a day after the election. He said he sees no real “material deficit reduction” changes coming from the Republicans, as that would require cutting entitlement programs like Social Security, Medicare and Medicaid. Cutting the deficit, which was the Republicans’ and the Tea Party’s rallying point, also means making moves on the “revenue side,” Lieber said, and “Republicans are not going to do much on the revenue side.”
As for the Bush tax cuts, which will be “front and center” for the financial markets and for Congress when it returns on Nov. 15, extending the tax cuts does not look likely during the lame-duck session. Rather, Lieber said, “the odds favor extending the Bush tax cuts in the first quarter” of next year. The bottom line on the Bush tax cuts: Capital gains and dividends will be somewhere between 15% and 20%, Lieber said, which “will be positive news for the market.” All of the middle-class tax cuts, he said, will be extended, and all of the “upper income tax rates could go up to 39.6%; but it’s our opinion that the starting threshold will be $500,000 for those tax rates to go into effect, as opposed to $250,000.”
On the financial services front, Sam Leamann, senior financial analyst at Washington Analysis, said on the same conference call that the House Financial Services Committee, which will now likely be chaired by Rep. Spencer Bachus, R-Ala., will hold a series of hearings on the Dodd-Frank Act and will “pressure the Fed, the Securities and Exchange Commission, and FDIC to go easy in terms of interpreting the Dodd-Frank Act,” which, on the margin, “could be a plus for banks.”
When the 112th Congress convenes in January “banking issues—broadly defined—will remain front-burner issues,” says William Donovan, a partner with the law firm Venable in Washington, D.C. The Senate Banking Committee will look “very different than it does today,” Donovan continues, when the new Congress starts, with at least five members of the 23-member committee retiring.
Dan Barry, managing director of government relations and public policy for the Financial Planning Association (FPA), says that he doesn’t see the GOP-controlled Congress affecting the SEC’s rulemaking “in any substantial way.” He said Congress will likely not “interfere” with the SEC’s rulemaking authority under Dodd-Frank.
Leamann of Washington Analysis went on to say expect a technical corrections bill next year, which could be a vehicle that’s used to make “modest” changes to Dodd-Frank. The bill, he said, could prove positive for banks, and “provide more clarity on proprietary trading.” But look for Republicans to attempt to “dilute the power” of the Consumer Financial Protection Bureau’s (CFPB) current one director status by proposing instead a five-member board.
As for health care, Beth Mantz Steindecker, senior health care analyst at Washington Analysis, said that “not surprisingly, a GOP House will propose and pass measures to repeal health care reform.” But she expects that any bill that would “materially gut” the Democrats’ landmark legislation will be unlikely to muster sufficient Senate support “or get past an Obama veto.”