More On Legal & Compliancefrom The Advisor's Professional Library
- The Custody Rule and its Ramifications When an RIA takes custody of a clients funds or securities, risk to that individual increases dramatically. Rule 206(4)-2 under the Investment Advisers Act (better known as the Custody Rule), was passed to protect clients from unscrupulous investors.
- Nothing but the Best Execution Along with the many other fiduciary obligations owed by RIAs, firms owe a duty to seek best execution of clients transactions. If they fail to do, RIAs violate Section 206 of the Investment Advisers Act.
While the regulatory and legislative landscapes remain sketchy until after the Nov. 6 election, industry officials say there are some fairly sure bets advisors can count on.
For starters, the Securities and Exchange Commission’s (SEC) fiduciary rule will maintain momentum regardless of a President Obama or Gov. Mitt Romney win, but the Department of Labor’s (DOL) fiduciary rule won’t see the light of day under a Romney administration.
Other certainties are that legislation to create a self-regulatory organization (SRO) to examine advisors will most likely be reintroduced in the next Congress regardless of an Obama or Romney victory, and sections of the Dodd-Frank Act will face challenges moving forward under both a Republican and Democratic White House and Congress.
“In the policy world, the DOL’s fiduciary rule is critically dependent on the election,” says Brian Graff, CEO of the American Society of Pension Professionals and Actuaries (ASPPA).
Unlike tax reform, which will move ahead next year regardless of which candidate is elected, the DOL’s controversial rule amending the definition of fiduciary under the Employee Retirement Income Security Act (ERISA) will be “put into hibernation” if Republican presidential candidate Romney wins, Graff (above) says. Phyllis Borzi, the Obama administration’s Assistant Secretary for DOL’s Employee Benefits Security Administration (EBSA), and chief architect of the fiduciary rule, would be replaced.
Brad Campbell, former head of EBSA, says that if there is a Romney administration, “almost all of the political appointees in the entire executive branch will be replaced,” including Borzi.
While Romney has not announced a specific regulatory agenda for EBSA, “the bipartisan opposition to the proposal makes it very unlikely that proceeding with the proposal would be on a Romney administration's agenda,” says Campbell, who is now an attorney with the Financial Services ERISA Team at Drinker Biddle & Reath in Washington.
However, Campbell says there is a full plate of ERISA issues for a Romney administration to handle just in fully implementing the two new fee disclosure regulations—408(b)(2) and 404a5. Most significantly, a Romney administration would have to address the tax treatment of retirement plans during the debate on comprehensive tax reform.
Both Campbell and Graff agree that one of the biggest issues for the next Congress and administration to tackle next year is the tax treatment of retirement plans under broad tax reform. Graff says the ASPPA has launched a “major” social media campaign called Save My 401(k). “Last time Congress did tax reform, there was a 70% cut in the 401(k) contribution limit. We can’t let that happen again.”
Dan Barry (left), managing director of Government Relations & Public Policy for the Financial Planning Association (FPA), notes that while DOL’s fiduciary rule will fall by the wayside under a Romney administration, a Romney replacement for Borzi could decide to “take a fresh look” at the fiduciary reproposal and offer “a narrower approach.”
If Romney proves victorious, however, Borzi may attempt to get a redraft of the reproposed fiduciary rule out and approved by the Office of Management and Budget (OMB) before he takes office, Barry adds.
Despite facing sharp criticism from the industry as well as members of Congress over the fiduciary rule, Borzi has been adamant that she would repropose it.
The SEC’s proposed fiduciary rule will likely come in the form of a concept release, which will spark “additional debate on the boundaries of a fiduciary standard” for brokers, according to Blaine Aikin, president and CEO of fi360. Aikin writes in a recent article that the trajectory of the fiduciary discussion “appears to be toward the application of a best-interest standard to broad areas of investment advice by brokers.”
The timing of the SEC moving ahead with a fiduciary rule is uncertain, however, Aikin says, given the “political pressure by the House of Representatives and industry groups questioning the pace and costs versus benefits of rulemakings at the SEC and other agencies amid a heated presidential contest.” Regardless, he says, “the imperative for [fiduciary] reform … has created enough momentum that it would be virtually impossible for a complete reversal in course—even in the case of a complete repeal of the Dodd-Frank Act,” as pledged by Romney this year.
Speaking of Dodd-Frank, John Berlau, senior fellow with the Competitive Enterprise Institute, wrote in a recent blog post that Democrats are now turning against Dodd-Frank. Almost by the day, he says, "members of the president’s own party are coming to realize Dodd-Frank is actually toughest on smaller financial institutions while institutionalizing too-big-to-fail for large ones."
Duane Thompson, senior policy analyst for fi360, adds that there is “widespread consensus” among the securities industry that there should be a fiduciary standard for brokers, as the Financial Industry Regulatory Authority (FINRA) and the Securities Industry and Financial Markets Association (SIFMA) now support such a standard.
With conventional wisdom being that SEC Chairwoman Mary Schapiro will step down from her post after the election, the FPA’s Barry says that there is a “risk” that the next chairman of the SEC “may not be as supportive” of a fiduciary duty for brokers as Schapiro has been.
David Tittsworth (left), executive director of the Investment Adviser Association (IAA) in Washington, recently said the SRO debate would be the “biggest issue” advisors would confront next year. While the bill from House Financial Services Committee Chairman Spencer Bachus, R-Ala., calling for an SRO is “dead” this year, the SRO issue will be revived next year, with new players at the SEC, in Congress and possibly in the White House, Tittsworth said.
Hester Peirce, Senior Research Fellow at the Mercatus Center at George Mason University, agreed, stating that “interest in [the SRO] idea will continue because the SEC is clearly overwhelmed and the complexity of advisors that it is now overseeing [with oversight of hedge fund advisors] will pose challenges” to the agency.
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