Don’t let financial advisers off the hook
Ronald Reagan used to say that the surest way to live forever was to become a federal program. If that’s right, the surest way to die is to be studied by Congress. In Washington, becoming the subject of legislative scrutiny virtually guarantees inaction, the disappearance of funding and political support, and ultimate demise.
That’s precisely why congressional Republicans are insisting on the need to “study” further an Obama administration proposal to make financial advisers more accountable. The proposal in question, put forward by the Department of Labor, would target the conflicts of interest that can arise when advisers attempt to steer their clients into high-fee, high-risk investments.
The Labor Department is attempting to update the fiduciary standard, raising the bar for any advice given by brokers working with retirement investors. If instituted, financial advisers will have to place a client’s interests above their own or those of their firm. That doesn’t seem like too hard a standard to meet, but not all advisers deliver on it. And to this point, nothing in the law has made them do so.
A change is long overdue. The current proposal has already been studied at length, while the public and affected industries have had their chance to examine the rule, comment on it and suggest changes. Labor Department researchers estimate that the regulation would save more than $40 billion over 10 years in retirement savings.
Republicans and some Democrats in Congress would apparently rather leave America’s investing public exposed to advisers who serve themselves first and their clients second. But rather than put forward their own ideas to address this problem, they’re attempting to dictate new parameters for the rule that would require it to be rewritten, thus running out the clock before President Barack Obama leaves office.
As a former broker, I cannot accept the argument that brokers are simply order-takers rather than advisers. Responding to customers’ directions and anxieties invariably involves a dialogue that veers into the area of advice and counsel.
As chairman of the Securities and Exchange Commission in the 1990s, I’m also intimately familiar with the tactic of “study to kill.” Then, too, the Republicans in control of Congress used the maneuver to stymie important new rules to protect investors.
In that case, I wanted to keep audit and accounting firms from selling consulting and other high-margin services to their audit clients. My fear was that the audit process — which is dependent on independence and objectivity — would be infected by concerns over losing other client work. An audit might be toned down in hopes of winning a lucrative consulting gig from the same client. Or auditors might not share important information with an audit committee so as not to embarrass managers critical to their success on other projects. The risk of self-dealing appeared to be great.
My fears were well-placed. Major audit firms were later discovered to have allowed such conflicts of interest to affect their judgment; the resulting audits were not of consistently high quality. By the time the proposed rules had finally found their way into law in the Sarbanes-Oxley legislation, it was too late and investors had lost billions of dollars in the 2001-2002 market meltdown and recession.
Congress is in danger of repeating that mistake. The Labor Department has put forward a proposal after years of vetting, held four days of public hearings and considered comments from thousands of people. There’s no reason to study the issue further, nor any legitimate argument against the proposal itself. A vote to delay the rule further is a vote to kill the rule — that’s how things work in Washington.
Among America’s middle-class families, who are struggling to save enough for college and retirement and life’s other big- ticket items, this delay is going to cost money. Billions of dollars in fees will be paid to unscrupulous advisers who aren’t being held to account. I’ve seen this movie before: In the end, whose money matters more: investors’ or that belonging to the people they’ve trusted for advice?
Arthur Levitt Jr. is a former chairman of the U.S. Securities and Exchange Commission and a director of Bloomberg LP