After nearly four years as head of the Securities and Exchange Commission — one of the longest terms served by any SEC chair — outgoing Chairwoman Mary Jo White quips that she’s “not tired at all. This is a great job. …The issues are not only critically important to investors and the markets, but really wonderful challenges to deal with. I like hard challenges.”
No doubt White, a former federal prosecutor and securities lawyer who served as the U.S. attorney for the Southern District of New York before being sworn in as the 31st chair of the SEC in April 2013, can show some muscle. But as the women coming in and out of her office at SEC headquarters in Washington on Wednesday morning can attest, she’s clearly got a soft side. “She takes care of people,” said one of the SEC employees, as another one handed White a card. “She’ll be missed.”
Those accolades came just minutes before I sat down to have a wide-ranging interview with White – covering everything from the fiduciary rule she fought hard to get passed (but didn’t), advisor exams, her “broken windows” approach to pursuing violations, to her thoughts on Jay Clayton, President-elect Trump’s nominee to take her spot.
After departing on Friday, White said, she “won’t be off long. I love to work. I love hard challenges and I’ll very quickly move to the next one — whatever that is.”
Below is an excerpt of the interview with White; the full interview will appear in the February issue of Investment Advisor on Jan. 23.
ThinkAdvisor: Is the fiduciary rulemaking one of your biggest disappointments, not getting it passed?
White: It’s a disappointment. I think it’s an extraordinarily, in my mind, important rule, for the commission to undertake. The commission has been studying whether to do it for decades. We’re not mandated to do it … I spent a lot of time studying it myself before I concluded, for myself, that we should advance it. But I made very clear when I said that it was very complicated, it would take a long time, and I’m only one vote. As you know, undoubtedly, a number of our present and former commissioners have publicly stated their own views. So that’s not a rule, with our current commission of three, that could be advanced.
Do you think the agency should do one in the next administration?
I do. But it will be up to the next chair to make that decision. I’m sure that the chair will want to study it pretty intensively before making that decision.
How do you feel about the Department of Labor’s fiduciary rule? Did Labor Secretary Thomas Perez come to you and say “We’re going to do this because the SEC isn’t moving forward?”
No. We’re independent agencies. If we proceed, we would do it under Section 913 of the Dodd-Frank Act; that requires certain parameters that don’t apply to DOL. Some of those parameters also include being more solicitous of the broker model, in terms of what’s allowed to be done. So the ERISA space is a very important space and responsibility of the DOL. I’ve always said, and still think, that we are independent agencies with independent responsibilities. There was no, “I’m going to do this because you aren’t. We can’t do it because you are.” I think we can both act independently, obviously in coordination.
But how do you feel about the DOL’s fiduciary rule?
I’m not going to comment on the specific rule. I will say this: I think it’s very important that there be a uniform fiduciary duty that’s applied to both broker-dealers and investment advisors, certainly when giving investment advice to retail investors. I don’t necessarily limit it to retail investors. The Department of Labor’s rule does cover that in their space.
Advisor exams, the third-party audit rule, that didn’t advance during your term.
There’s a completed proposal before my two fellow commissioners. I’ve stated this publicly, I think it’s very important to advance it, but in this particular three-person commission, there was not sufficient support to advance it. I certainly hope the next chair and commission do advance it.
Your ‘broken windows’ approach — do you think that will survive? How do you think that fared?
I think it was an enormously successful approach. I think it’s often misinterpreted … it’s a part of a very strong enforcement program. It’s resource efficient, didn’t take away resources from all of our other cases … the serious frauds, the Ponzi schemes, the financial reporting cases. Why is it important that it be a component of a strong enforcement program? If you have important rules on the books where there is rather widespread noncompliance, you might as well not have the rules on the books. So what you’re trying to do is raise the bar of compliance on important rules. I think it’s been quite successful. Do you think Jay Clayton, selected by President-elect Donald Trump to be next SEC chair, is a good choice?
I know him some from New York … I’ve met with him, I think he’s very impressive, he’s smart, he’s principled, he’s a really nice guy. I think he’ll be a really strong leader.
What about the challenges that he faces as chair?
I think our biggest challenge is we are under-resourced; that applies in the advisor space but it applies across the board. When I’m asked what my most significant challenge is, that’s it. If you look at the wide range of responsibilities the SEC has, it’s in so many spaces that are very technical, that if you’re not sufficiently resourced, you can’t do the job that you’re assigned to do.
Rep. Ann Wagner’s bill, the SEC Regulatory Accountability Act, H.R. 78, which recently passed the House, you’ve been critical of it.
The concern that I have, and there have been similar bills before, is that it would impose additional requirements on our rulemaking that I don’t think would improve the process, improve the rules, but could bog us down so that we effectively can’t, in any prompt way, adopt rules to protect markets and investors.
What’s your biggest achievement during your term?
I don’t really think in those terms. I’m enormously proud and pleased with what the agency has accomplished across the board — I think we’ve strengthened enforcement and the exam program. On the rulemaking side, this has been an unprecedented time of rulemaking, mandates and discretionary rulemakings, in the commission’s history. We’ve done over 50 packages of very consequential rules. Highlights include money market reform, Regulation SCI and the modernization of our regulatory regime for the asset management industry.
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