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Regulation and Compliance > Federal Regulation > SEC

Arthur Levitt: SEC Deadlocked on Fiduciary, Advisors Need DOL Rule

By Melanie Waddell

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Former SEC Chairman Arthur Levitt says because the Securities and Exchange Commission has become “locked” and “divided philosophically” on whether to move ahead on a fiduciary rule, the industry should let the Department of Labor move ahead first.

The SEC will be “locked in a conflict on this [fiduciary rulemaking] issue for a long, long time,” Levitt said in an interview with the Investment Adviser Association to commemorate the 75th anniversary of the Investment Adviser Act, which takes place Saturday.

The solution: “We should try to move ahead on the standard put forth by the Department of Labor,” Levitt said. “Is [the DOL proposal] perfect in terms of wording and content? Probably not. But I don’t know that there’s any rule that is ever perfect or that never has unintended consequences.”

Added Levitt: “We have long passed the time that we can afford to have side by side, advisors with one set of responsibilities and brokers with a much easier set of responsibilities and standards.”

The IAA got feedback from a number of industry professionals, regulators and other experts as the Investment Advisers Act celebrated 75 years.

Andrew Bowden, the former head of the SEC’s Office of Compliance Inspections and Examinations, told IAA that the industry is on a “collision course,” as there are “vastly different regulatory schemes that address essentially the same business – advising retail investors.” He pointed to the “highly prescriptive regulatory scheme for broker-dealers” under FINRA rules; the Advisers Act model, “which is principles-based (as are most state regulatory schemes)”; and the proposed DOL model, which he argued “would be a significant departure from both.”

All of those “regulatory schemes,” Bowden continued, “address the same business activity and behavior, and we’re at the point where it’s best for investors and our country to pick one.”

Bowden, who’s now senior vice president and general counsel of Jackson National Life Insurance Co., said that his “prediction and hope” is that the Adviser Act model prevails.

“I think [the Advisers Act] has proven to be the most effective, but I think it will have to change some,” Bowden said, adding that it needs to be “built out a little” to cover supervision in “bigger, more far-flung operations,” and that the Advisers Act and investor protection would benefit by adopting some of the concepts from the broker-dealer regime with respect to supervision and oversight, including branch office supervision, enhanced oversight of advisors with disciplinary histories, and the supervisory responsibilities of certain managers within an organization.

SEC Chairwoman Mary Jo White echoed her previously voiced view that her “vision of a uniform fiduciary standard would be a codified, principles-based standard rooted in the Advisers Act.” The “compass” of the Act, White said, is its antifraud positions and the fiduciary duty standard.

Karen Barr, IAA’s president and CEO, noted that as it stands now there are 11,600 RIAs overseeing $67 trillion in assets. In any SEC fiduciary rulemaking, “what we don’t want to see is the Investment Advisers Act fiduciary duty get watered down or reduced to a series of check-the-box rules.”

Barbara Roper, director of investor protection for the Consumer Federation of America, told IAA that the industry is “at a moment of both great promise and great peril.”

While “it appears the SEC is poised to create a uniform fiduciary standard that would apply both to advisors and to brokers,” it’s also a moment of peril, she said, “because that standard could be a watered-down version of the high fiduciary standard mandated by the Investment Advisers Act, which Roper argues “gets the standard right.”

To see what 15 other industry pros had to say, check out the IAA’s 75′s Anniversary page.

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