House Republicans have introduced legislation that would replace the Labor Department’s conflict of interest rule with a new, disclosure-driven version of the fiduciary standard. The Affordable Retirement Advice for Savers Act was introduced by Rep. Phil Roe, D-TN, and is co-sponsored by Rept. Peter Roskam, R-IL. Similar legislation was introduced last year in both chambers of Congress.
The bill repeals the expanded definition of fiduciary created under President Obama’s Labor Department, and replaces it with a new best interest standard. It also amends the Employee Retirement Income Security Act to include language that would allow advisors greater latitude in how they communicate with retirement investors. Under the fiduciary rule, any communication that can reasonably be interpreted to affect an investor’s decisions is considered fiduciary advice. Under the Affordable Retirement Advice for Savers Act, advisors would be able to offer communications that include portfolio models without rising to the level of a fiduciary, so long as written disclosure is provided explaining the information is not intended to be investment advice. The bill scraps the fiduciary rule’s Best Interest Contract Exemption.
A new, broader exemption protects variable compensation and recommendations of proprietary products, so long as the advisor or broker receives only reasonable compensation, and communications explaining the products are based on a “limited range of investment options.” The communications must be accompanied by a disclosure saying other investment options exist at potentially lower costs. Variable compensation among different investment products would not trigger fiduciary exposure, something the existing rule goes great lengths to address in mitigating advisor conflicts with the best interest standard. Under the Republicans’ alternative, advisors and brokers could receive variable compensation, so long as the costs are disclosed.
To pass, the bill would need 60 votes in the Senate, an unlikely hurdle to overcome. But the proposed legislation does create a template that regulators at Labor may consider as they undertake a new economic and legal analysis of the rule, ordered by President Trump. This week, Labor issued a request for information from stakeholders to support its analysis.
During an appropriation review of President Trump’s budget, Labor Secretary Alexander Acosta told members of the House Labor, Health and Human Services, Education and Related Agencies subcommittee that the Obama Labor Department failed to adequately address its rule’s impact on small investors.
“There are concerns,” Acosta told lawmakers, referring to the rule’s potential to price small investors out of the retirement advice market. “Those concerns were voiced in the original rulemaking process, and the prior administration made a decision that those concerns were outweighed by what the prior administration wanted to do.”
At the end of today, advisors on all IRAs and most 401(k) plans will have to abide by the fiduciary rule’s impartial conduct standards. Full compliance with the rule’s prohibited transaction exemptions is scheduled for January 1, 2018.
Given Sec. Acosta’s recent testimony, and the refreshed efforts by Republicans to craft a legislative alternative to the rule, the odds are stacking toward the rule ultimately being revised, at the least.
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