As the Obama administration begins its next four years in power, this much is clear: The fiduciary standard is worse off today, as compared to four years ago, in its position in federal rulemaking and the public square. Fiduciary proponents need to regroup and rethink how to best move forward and prevent a repeat.
Under an Administration that takes pride in curbing Wall Street excesses, it is particularly disheartening that the position of the fiduciary standard in regulatory rulemaking is weaker and the position of fiduciary skeptics and opponents is stronger as compared to four years ago. Rulemaking at the Department of Labor and the SEC stalled under opposition; the outlook in each agency is uncertain. Statements about the fiduciary standard from skeptics or opponents were, generally, either unsubstantiated or dubious on their face, or just plainly inaccurate, but they carried the day in Washington. There are four steps that proponents of the fiduciary standard can take to prevent four more years of the status quo on fiduciary, but first, let's recall the last four years.
Where the Discussion Went
This outcome was not preordained. Recall where we were four years ago. In 2008, Lehman Brothers folded in mid-September, unemployment rolls increased by 603,000 in October to 10.1 million. On election day, Barack Obama swept into office, carrying heavy Democratic majorities in both houses of Congress (257-178 in the House, 59-41 in the Senate). After the 2008 election, Democrats held greater sway inWashingtonthan at any other time since Lyndon Johnson swamped Barry Goldwater in 1964.
Early signals indicated that the Obama Administration intended to prioritize advancing fiduciary duties in financial reform. The Department of the Treasury's June 17, 2009 paper, "Financial Regulatory Reform," recommended establishing "a fiduciary duty for broker-dealers offering investment advice and harmonize the regulation of investment advisers and broker-dealers." he next day newly appointed SEC Chairman, Mary Schapiro came out foursquare advocating the necessity for and virtues of the fiduciary standard for all those rendering "personalized investment advice about securities."
Skeptics and opponents coalesced around certain arguments to, at minimum, stall rulemaking. It is important to recall these arguments because they matter. Some opponents expressed support for disclosures and a commercial standard. This tactic was evident in a DOL public hearing that took place on March 1 and 2, 2011. Here, fiduciary advice under ERISA, it was argued, should be treated in law no differently than a commercial sales transaction. This implicitly means the client experience and expectation discussing retirement planning with a fiduciary should be no different from any other sales situation, like the department store experience and expectation when buying that perfect sofa and love seat.
Skeptics and opponents of the fiduciary standard often express concerns over costs, and question whether the benefits exceed the alleged costs they associate with the fiduciary standard. The SEC Staff Study in January 2011 fastidiously evaluated comment letters. On the issue of cost concerns, the Staff Study makes a key point that is often forgotten. It is this: "None of the commenters provided any quantification of such anticipated costs" (emphasis added). So while many commenters expressed cost concerns, no commenters expressed cost figures, or even, it appears, a ballpark cost estimate.
SIFMA's Position
On July 14, 2011, the Securities Industry and Financial Markets Association (SIFMA) presented to the SEC a 24-page "Framework for Rulemaking." Here, SIFMA's leading priorities are made clear: Access to and choice among a wide range of products and services is paramount, as is being "business model neutral." When conflicts of interest exist, "broker-dealers and investment advisers should be able to provide disclosures to customers in a pragmatic way." The letter is striking in its candid expression of priorities that are essentially unrelated to fiduciary principles.
What is notable, actually glaring, is what SIFMA excludes. SIFMA's letter is absent any statements reflecting on the importance of long-established principles in fiduciary law, principles that have been cited by Supreme Court jurists. Nowhere do we find explicit mention of or reference to the vital importance of principles of loyalty, due care and good faith, or ways to avoid or mitigate conflicts.
What is also noteworthy is SIFMA's rationale to justify a broker-dealer standard weaker than the '40 Act standard. This rationale is the foundation of it framework, and it is flawed. SIFMA incorrectly reasons that as Dodd-Frank does not require the SEC to impose the Investment Advisers Act of 1940 on broker-dealers, SIFMA's standard may be weaker than the '40 Act. This is in error.
Dodd-Frank requires the SEC apply a standard on broker dealers that is "no less stringent" than the Investment Advisers Act of 1940. "No less stringent" permits the standard to be dissimilar to the '40 Act. Yet, it also means what the words plainly say, and the words say "no less stringent." This is to mean, at the minimum, equivalent.
The SIFMA letter voices support for "the establishment of a uniform fiduciary standard." Is this a fair statement? Is it an unsubstantiated or dubious claim? SIFMA's own explanations reveal a standard that is, in vital respects, a commercial sales standard and not the fiduciary standard. It is a standard not remotely "equivalent" to the 40 Act, as required by Dodd-Frank.
Despite the historic political realignment and the financial crisis of four years ago, and despite the gallant efforts of many dedicated regulators and fiduciary advocates, the fiduciary standard is weaker today within federal regulatory rulemaking and the public square, and fiduciary skeptics and opponents are stronger. The fiduciary standard is weaker because the repeated dubious claims and inaccurate statements took hold in many quarters. While massive lobbying from insurance companies and broker-dealers took its toll, that's not the whole story.
Dubious claims took hold largely because they were not effectively rebutted. So they drove much of the discussion. They drove the discussion far away from the relevant legislative and regulatory history, the law, reams of credible independent research and the vital role of the fiduciary standard and culture in inspiring investor trust. They drove, instead, toward an alternate reality where the commercial sales standard is presented as being better for investors than the fiduciary standard; imagined additional costs would just appear; contrived scenarios of empty shelves at the financial supermarkets, and foresaw disruptions in the capital markets and untold investor harms. Dubious claims finally morphed into images of investors stranded, abandoned by brokers not able to afford to put the best interest of their clients first.
Four Steps to Control Where the Discussion Can Go
What can be done? Four steps could help ameliorate this situation.
