Don't Finalize Fiduciary Rule Now, Groups Urge DOL

'Can't Be Done This Fast'

In a lengthy LinkedIn post, Brad Campbell, former head of Labor's Employee Benefits Security Administration, who's now a partner at Faegre Drinker in Washington, stated that "the bottom line on the final DOL fiduciary rule package OMB just greenlighted — it just can't be done this fast if you're doing it right.

"I don't say this lightly. I say it based on my experience as someone who has managed the regulatory process in promulgating controversial and economically significant Federal rules. This is not how it is done," he explained.

Campbell went on to state that he doesn't believe that Labor "could — in only 66 calendar days — give appropriate consideration under the Administrative Procedure Act to the roughly 20,000 comments it received; give appropriate consideration to the dozens and dozens of significant legal, technical and policy issues those comments raised; make decisions to appropriately resolve each of those issues; draft a well-written final rule text and preamble explaining the final text; and develop and draft an economic analysis, small business impact analysis, and Federalism analysis that reflects all those new decisions while correcting the significant deficiencies of these analyses in the prior Proposal."

Further, OMB could not "… in only 33 calendar days have given appropriate consideration and review of DOL's regulatory package under the APA and the various Executive Orders governing the regulatory process."

'Last Refuge of a Desperate Group'

But Stephen Hall, legal director at Better Markets, countered in an email to me the same day that Campbell and the groups' "procedural argument has no merit whatsoever. It is the last refuge of a desperate group of industry opponents fighting tooth and nail against the DOL rules."

"Why?" Hall asked. "Because the rules will, once and for all, end the ability of financial advisers—especially insurance companies and their agents—to extract easy profits at the expense of their retirement-saver clients. They have launched every conceivable attack against these overdue reforms, yet none of them hold water."

Labor's rulemaking process, "was thorough, inclusive, and transparent, including an ample comment period that complied with all of the laws, rules, and guidance governing the rulemaking process under the APA," he said.

Labor, Hall added, "also convened multiple days of public hearings at which stakeholders from all sides were able to offer their input. These critics gloss over the fact that the proposed changes to the 'best interest' standard governing advisers represent only modest amendments to requirements that have been in place since 2020."