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Forget Fiduciary: Real Battle Coming Over Harmonization

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In a wide-ranging session at the Envestnet Advisor Summit in Chicago on April 8, MarketCounsel’s founder and CEO Brian Hamburger addressed many of the big regulatory and compliance issues facing advisors, and that one of the main issues is the regulators themselves.

The SEC “hasn’t been doing its job for a long time. We haven’t had a strong securities regulator in the last 15 years,” he said in the breakout session, which included fiduciary standard advocate Knut Rostad in the audience. That weakness by the federal securities regulator is why on the fiduciary standard for brokers, the SEC has decided “we won’t be able to address this.”

Hamburger said that looking at the broader picture of financial services regulation, “a real battle is being waged here,” with the intent to deliver “overall harmonization” of RIA and broker regulation. “’Harmonization’ sounds nice. Who doesn’t want ‘harmony?’” Hamburger joked, but warned that for RIAs harmonization is not a good development. It’s also not good for end clients. “Customers are confused,” he said, not knowing if they’re “dealing with a broker or advisor,” and moreover, “don’t know what difference it makes.”

While the fiduciary reproposal from the Department of Labor “gets the headlines,” the harmonization push “is starting to roll a rock down the hill.” If RIAs back a fiduciary standard for brokers, they have to be ready for the drawbacks of harmonization. That would include “taking all the rules BDs are subject to and applying them” to RIAs, including a continuing education requirement, reviews of advertising and books and records requirements. Harmonization, he said “is not a one-way street.”

In fact, he argued that “if you align all of these things, I can assure you that FINRA will reappear quickly” and say regarding RIAs, “if they’re all subject to the same rules, it makes sense for us to examine them.”

By contrast, he said the United Kingdom dealt with this issue “years ago,” to the point that as of this year, each advice giver “must decide whether you’re a broker or an advisor,” and based on that decision, “your registration will be different” as will “your standard of care” toward clients. That makes it easier for British end clients to decide whether they “need incidental advice, or a more conflict-free form of advice.”

On the fiduciary standard for brokers, Hamburger recalled that the original “Merrill Lynch Rule” really wasn’t an SEC rule at all, with the more accurately named broker-dealer exemption originally proposed by the brokerage industry as a “way to cure churning.” That industry figured out, however, that “since customers wanted advice,” they could charge a fee for their brokerage services that would “look and feel a lot like the way investment advisors charge.” The brokerage industry’s intent was reflected in its advertising at the time. “The ads back then didn’t talk about the quality of their clearing,” Hamburger recalled, “but about advice.” (That exemption was successfully challenged in court by the Financial Planning Association.)

As for the Department of Labor’s proposed fiduciary rulemaking under ERISA, Hamburger said the DOL “did an end around since the SEC hasn’t been doing its job for a long time.” Hamburger then called on Rostad, president of The Institute for the Fiduciary Standard, to voice his take on the prospects for a fiduciary standard being imposed on brokers by the SEC. “The status of fiduciary duty in Washington has gone downhill enormously over the past six years,” Rostad replied, in fact since the Obama administration released its white paper on a regulatory roadmap for financial services.

(See Obama Floats Financial Services Reform Plan on ThinkAdvisor.)

“At the SEC we’re far weaker than we were,” he continued, while the DOL’s proposal represents a “mixed picture” for fiduciary proponents and the brokerage industry. Over all, the DOL proposal is actually bleak for fiduciary proponents, Rostad said, since DOL’s inclusion of a proposed “best interest contract exemption,” or BICE, is a “loophole you could drive an aircraft carrier through.”

On the DOL reproposal, Hamburger chimed in that it is essentially the DOL’s original 2010 proposal “with a couple of ‘no-action letters’ attached,” and that because of political pressure from the administration, DOL “found themselves having to put something out” before it was ready to do so.

Nevertheless, he said “it doesn’t take you long to realize that there’s no way” the DOL proposal will be adopted in its current format. “There are way too many holes” in the proposal, Hamburger said, and “the brokerage industry is ridiculously stronger than the RIA” lobby in the nation’s capital, so “they’ll leave their footprint” on the final proposal.

He added a final note about rulemaking: “If you want to predict what’s going to happen, follow the money in Washington.”

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