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RIAs should ask not for whom the DOL-rule sharks swarm … they swarm for you, too

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By Scott MacKillop | February 10, 2017

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Advisors who truly aspire to be part of a respected profession need to oppose the furious efforts to revive the commission-broker ethos from the top seat of government.

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Years ago I was scuba diving with my family when a 15-foot tiger shark appeared out of nowhere and swam in lazy circles around us for what seemed like hours before deciding we were not a worthy meal and soundlessly disappearing into the deep.

The sharks circling around the DOL fiduciary rule appear hungrier and more determined than the one we encountered.

On Feb. 3, President Donald Trump officially joined the conversation about the Department of Labor’s fiduciary rule. Up to that point, many people, both in and out of government, had lined up in opposition to the rule, but none had the authority to stop its implementation.

The president has now set events in motion that could have a profoundly negative effect not only on American retirement plan participants, including IRA investors who are also covered by the rule, but also on financial advisors—even those who are already required to act as fiduciaries.

Last Friday, Trump directed the Secretary of Labor to review the rule “to determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice.” A worthy directive. Who can argue with access to information and advice?

He further explained his directive by noting that “one of the priorities of my Administration is to empower Americans to make their own financial decisions, to facilitate their ability to save for retirement and build the individual wealth necessary to afford typical lifetime expenses…”

Most financial advisors, particularly those already subject to fiduciary obligations under the Investment Advisers Act of 1940, are satisfied to let this storm take its own course. The thinking is that heads I win, tails I win.

In the case where the rule survives, I am already largely positioned to live under its mandates while competitors scramble to tell a new story and have clients sign papers giving them permission to continue with some dubious practices.
If the rule dies, I’m good, too. The status quo has put me at the top of the food chain and the free market will likely keep me there.

Lumped into one

My take is that RIAs will also be significantly harmed if implementation of the DOL fiduciary rule is derailed. RIAs may see themselves as sitting above the fray, but they are not. They may even see their fiduciary status as a marketing advantage—a solid basis for differentiating themselves from those subject to the lower suitability standard.

But that is small thinking. The public is hopelessly confused. Most people have no clue what a fiduciary is or how a fiduciary differs from a member of the suitability crowd. They will never read the DOL rule and wouldn’t understand it if they did. That is why the rule’s opponents can brazenly say things about it that are blatant falsehoods.

The public sees us all as being members of the same club. If we aspire to be a true profession, if we want to be viewed with respect rather than derision, then we all need to get behind measures — like the DOL’s fiduciary rule — that raise the standards applicable to the entire industry. We need to do what is right for all clients, not just our own. We truly need to put the interests of investors first — not just in our offices but on the larger legislative playing field.

Don’t eat it — it’s good for you!

It’s easy for advisors to get as confused as the consumer. Certainly empowering Americans, facilitating their ability to save and helping them build wealth are all good things, right? Of course. The president just wants to help the hardworking people who are trying to provide for themselves and their families in retirement.

Gary Cohn, newly appointed White House National Economic Council director and former president and chief operating officer of Goldman Sachs, confirmed this fact. He told the Wall Street Journal the rule is “bad for consumers.” He later expanded on that view by stating that he doesn’t “think you protect investors by limiting choices. You need to give them the proper sources to accumulate wealth.”

In supporting his “limiting choice” comment he inaccurately observed that the rule requires an advisor to recommend the lowest-cost product even if it is not in the client’s best interest. To make his point crystal clear he said that the rule “is like putting only health food on the menu because unhealthy food tastes good. But you still shouldn’t eat it because you might die younger.”

Anthony Scaramucci, another member of Trump’s inner circle (at least so it was thought until recently), used an even more striking metaphor to explain the administration’s opposition to the DOL rule. He stated that the rule discriminated against advisors in a manner that evoked, at least for Scaramucci, the Supreme Court’s Dred Scott decision holding that African Americans weren’t U.S. citizens. Anything that bad must be stomped out so he promised, “We’re going to repeal it.”

Lacking the metaphorical flourish of Cohn and Scaramucci, Rep. Ann Wagner, R-Mo., dealt her cards straight off the top of the deck. Standing at Trump’s side as he signed the directive, she said, “What we’re doing is returning control to the American people, lower and middle income investors and retirees, control over their own retirement savings. It’s about Main Street and it’s been a labor of love for me for four years. It’s a big moment for Americans.”

Trump added: “She means that so much.”

Protecting their own bottom line since 1912

Wagner’s straight-from-the-heart comments made the hair on the back of my neck stand right up, like Old Glory being run up a flag pole on top of a purple mountain majesty, overlooking amber waves of grain. I imagine that her three largest campaign contributors—the insurance industry, the securities industry and the commercial banking industry—felt much the same way.

I know that Thomas Donohue, CEO of the U.S. Chamber of Commerce, felt the same way. Donohue expressed his approval of Trump’s action by pointing out that the rule “would have made it more difficult for Americans to save for their futures.” He was particularly concerned that the “flawed fiduciary rule’s rushed implementation would have jeopardized access to retirement advice and choice” for retirement plan participants.

Most right-thinking people would agree that six years simply isn’t enough time to adequately consider the fine points of a rule of such importance to hardworking Americans. Certainly the Chamber’s real constituents, the employers of these hardworking Americans, would probably love to keep the debate going for another decade or so in order to avoid disrupting their status quo, and the Chamber would be delighted to do so on their behalf. As the Chamber’s website says: “Since 1912, we’ve been fighting for your business and looking out for your bottom line.”

I’m sure Joe Wilson, R-S.C., also breathed a sigh of relief on behalf of all retirement plan participants. Wilson had previously introduced legislation to delay the rule by two years because, as he put it, “Rather than making retirement advice and financial stability more accessible for American families, they have disrupted the client-fiduciary relationship, increased costs and limited access.”

Now he won’t have to duke it out with the forces of evil on Capitol Hill in order to protect hardworking Americans. The president is taking care of that.

Billions and billions of conflicted advice

Indeed, with so many concerned people in high places it’s hard to know why we needed a fiduciary rule in the first place. These folks obviously hold the fate of American retirement plan participants close to their hearts and will fight like tigers (certainly not sharks) for them when the need arises.

But, once you sort through the metaphorical mishmash and the red-white-and-blue rhetoric, you may recall that the rule was designed for the sole purpose of cloaking retirement plan participants with the protection of a fiduciary standard and requiring that their interests be placed before those of brokers and other financial advisors who might serve them. This was made necessary by the fact that, according to the White House Council of Economic Advisors, investors lose approximately $17 billion every year to conflicted advice in retirement accounts.

Yes, the rule restricts choice in the same way that laws against burglary restrict the choices a burglar has about how he is going to spend his time. Cohn is right. Few people want to open a menu and see only tofu and alfalfa sprouts. But the rule doesn’t do that. It leaves all the good tasting stuff on the menu, while eliminating dishes made with rancid ingredients or food that is past its expiration date.

High-fives all around

Yes, the rule is “flawed” in the sense that it is longer than many books and is highly complex, even by regulatory standards. But it’s that way for a reason. The DOL could have simply applied the basic fiduciary standard that has been a part of ERISA since its enactment to all brokers and advisors who service retirement plans and their participants. This would have imposed a high standard of behavior and resulted in a rule that was less than one page in length. But it would have caused significant disruption to the financial services industry. So the DOL embarked on a six-year journey to find a compromise that dealt with the concerns of the industry. Now, like the boy who kills his parents and then throws himself on the mercy of the court because he is an orphan, the industry complains about the rule’s flaws and complexity.

A new president has the right to advance his own agenda and dismantle any laws or regulations he chooses, as long as he follows the prescribed legal procedures. But neither he, nor any others, should lie about their motives for doing so. On the same day he signed his DOL directive, Trump signed another one that commenced the dismantling of Dodd-Frank. He then met with a room full of the titans of the financial services industry. One can only imagine how many high-fives and attaboys were exchanged. This is definitely not about Main Street.

Gutting the fiduciary rule does not advance the interests of American retirement plan participants. It advances the interests of the large financial services firms that have been profiting at their expense to the tune of $17 billion annually. It’s shameful to claim that you are protecting hardworking Americans when, in fact, you are denying them the simple right to have their interests put before those who advise them about their financial future.

Scott MacKillop is CEO of First Ascent Asset Management, a Denver-based firm that provides investment management services to financial advisors and their clients. He is a 40-year veteran of the financial services industry. He can be reached at scott@firstascentam.com.