With the general election now less than two weeks away, it is more apparent than ever that Americans often are sharply divided about how best to achieve certain goals, even if we agree on the goals we are trying to achieve. Numerous examples of that same sort of conundrum exist in the regulation of financial services. Few would argue that retail investors, especially those investing retirement assets, should not be protected against financial adviser misconduct. But, it is possible that new “fiduciary rules” designed to better protect those investors may instead result in fewer brokerage firms willing to accept retirement accounts. This, in turn, may cause retail and retirement investors to flock to online self-directed brokerage accounts or to so-called robo-advisers, thereby further depriving such investors of any direct customized financial advice.
The Department of Labor’s new fiduciary rule for retirement-savings clients is set to take effect on April 10, 2017. The rule will require brokers and certain financial advisers who work with tax-advantaged retirement savings to meet a “fiduciary” standard, meaning they must work in the best interest of their clients and generally avoid conflicts, including those which are inherent in a commission-based compensation structure. Previously, such investment professionals were required to offer only guidance reasonably “suitable” for their clients, a far less-rigorous standard. Although there are several pending lawsuits as some financial industry participants challenge the rule’s scope, it is unlikely that there will be any meaningful changes to the rule before compliance deadlines kick in. Unless, of course, the upcoming election changes the landscape.
A new President could name a new head of the Securities and Exchange Commission, which has indicated that it is working on its own regulatory proposal to require brokers to act in the best interest of their clients in any investment accounts for retail investors, not just retirement accounts.
Although the SEC eventually is likely to come out with its own fiduciary rule, the agency hasn’t yet been able to act amid a partisan divide among the three commissioners and due to other pressing rulemaking agenda items. This delay is exacerbated because the SEC has been operating with only three sitting commissioners, instead of five, because Congress has declined to consider any nominations until after the general election. If the SEC passes its own fiduciary rule, it likely would complement and further expand, not supersede, the Labor Department’s rule. A rule from the SEC would cover both retirement and non-retirement accounts, effectively blanketing the entire advisory world and adding another layer of fiduciary regulation for advisers dealing with individual investors. Of course, if Republican candidate Donald Trump wins the presidency, there is some indication from members of his advisory staff that he would try to repeal the rule entirely.
Some financial firms are not waiting to see the outcome of the general election, however. Those firms have announced that they will no longer accept new commission-paying retirement accounts, effectively requiring those clients to find another brokerage firm that will hold their assets. More than likely, that will mean that those investors will be self-directing their assets in an online brokerage account.
Supporters of the new Labor Department rule and, possibly, new SEC fiduciary requirements, believe that investors must be serviced by financial professionals required to act in their best interest, without regard to the precise capacity in which the professional is acting. Investment advisers have long been held to a fiduciary standard, which many believe also should apply to financial professionals at brokerage firms. If brokerage firms are unwilling to service retirement accounts due to the increased costs and risks of maintaining these accounts, retirement investors still may benefit by being forced to move their accounts to less costly brokerage firms, even if that move requires them to spend more time and effort on managing their portfolios.
Detractors of new fiduciary rules argue that such rules will hurt small investors because fewer brokerage firms will be able and willing to service their accounts and those that will accept such accounts will not offer any financial advice to those clients.
We can all agree on where we want to be, even if we cannot agree on the best route to get there.