(Bloomberg View) — Ignoring some subtleties, the basic goal of the Department of Labor’s fiduciary rule is to prevent brokers who give retirement advice from giving bad, conflicted retirement advice.
Everyone can agree that good retirement advice is better than bad retirement advice. The main objection to the rule is — again, ignoring some subtleties — that bad retirement advice is better than no retirement advice, and that the rule might push people who would otherwise get bad retirement advice to instead get no retirement advice. That objection strikes me as moderately compelling, but it is hard to say with a straight face.
Related: The DOL rule: A case for the courts
“We think it is a bad rule. It is a bad rule for consumers,” said White House National Economic Council Director Gary Cohn in an interview with The Wall Street Journal on Thursday. “This is like putting only healthy food on the menu, because unhealthy food tastes good but you still shouldn’t eat it because you might die younger.”
Or, it’s like putting only careful sensible retirement advice on the menu, because dumb risky advice is more exciting but you shouldn’t take it because you might run out of money before you die. I hope firms seize on his metaphor … High Fructose Corn Syrup Capital Management. Special-Occasion Indulgence Investments LLC. Anyway, one thing about America in 2017 is that a successful populist presidential campaign resulted in the former president of Goldman Sachs announcing plans to make it easier to rip off retirement savers.
Just plans, though. Donald Trump’s “Presidential Memorandum on Fiduciary Duty Rule” doesn’t actually repeal the rule; it instructs the Secretary of Labor to “examine” the rule and see if maybe it should be delayed or repealed. Presumably the memo will be waiting on the Secretary of Labor’s desk when he arrives. The nominee, Andrew Puzder, “has submitted none of the paperwork required by the Senate committee overseeing his confirmation,” has had his confirmation hearing rescheduled four times, and “has now twice taken the awkward step of issuing public statements confirming that, yes, he still wants the job.” But he — or someone — will eventually arrive at his desk, read the memo, read between the lines and, everyone expects, and delay or repeal the fiduciary rule.
For now, though:
Financial institutions, many of which have been undertaking massive overhauls in their business models relating to retirement investors to comply with the rule by its applicability date, will not truly have any certainty until the rule is officially delayed or rescinded.
Most financial institutions have undergone massive compliance overhauls in advance of the fiduciary rule taking effect. (Photo: iStock)
Also, by an executive order issued Friday, the Dodd-Frank Act will go away, somehow. Or that is how people seem to be interpreting this frankly pretty vague executive order on “Core Principles for Regulating the United States Financial System.” The order instructs the Secretary of the Treasury to review existing laws and regulations with an eye to whether they ”empower Americans to make independent financial decisions,” “prevent taxpayer-funded bailouts,” “foster economic growth and vibrant financial markets,” “enable American companies to be competitive,” “advance American interests in international financial regulatory negotiations and meetings” and “rationalize the Federal financial regulatory framework.”
Sounds great! Davis Polk & Wardwell LLP calls it an “elegantly written Executive Order,” designed “to rebalance the goals of financial regulation to include jobs and economic growth in addition to financial stability.” Some of those principles are code, though; for instance, the phrase “prevent taxpayer-funded bailouts” is usually used to mean ”get rid of the provisions of law designed to prevent taxpayer-funded bailouts.” (It’s weird!) And do you think most Americans want to be “empowered to make independent financial decisions”? That sort of empowerment sometimes ends in Trump University degrees.
Dodd-Frank is, of course, an act of Congress that can’t be repealed by executive order or regulation; all the Treasury Secretary can really do is come up with a list of laws that don’t meet these principles, and then try to persuade Congress to repeal them. Congress, though, seems to be amenable; on Friday, the Senate voted to repeal a small part of Dodd-Frank, a rule that “requires oil companies to publicly disclose payments made to governments when developing resources around the world.” That doesn’t have much to do with any principles, core or otherwise, of financial regulation, though I suppose “it should be easier for companies to make undisclosed payments to government officials” could be a core principle of some sort.
Simpson Thacher & Bartlett LLP tried to guess what it will actually means:
Although the order does not specifically identify any existing laws or regulations that the administration considers to be inconsistent with the core principles, areas that the mandated agency report may ultimately identify for reform include the Volcker Rule, private equity adviser registration, any “fiduciary” standard applicable to investment advisers and broker-dealers, Dodd-Frank’s orderly liquidation authority and resolution planning requirements, as well as the powers, structure and funding arrangements of the FSOC, the Office of Financial Research, the prudential bank regulators, the SEC, CFTC, and CFPB.
There is a lot of hand-wringing about this, which is perhaps understandable, but premature as nothing has happened yet. Trump’s statement that he wants to roll back Dodd-Frank because his “friends” can’t get loans does seem suspect: “Commercial and industrial lending has risen to an all-time high since 2010.” And making it easier for banks to return capital does seem to increase the probability that they might fail — making bailouts more, not less, likely. But I have never been a believer in a pure quantity theory of bank regulation: It’s possible to make regulations not “stricter” or “laxer” but just smarter, and it’s always possible that that’s what will happen. We’ll have to see, though.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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