PALM BEACH, Florida – The never-ending speculation about when the Department of Labor might finally issue a new fiduciary standard came into play once again this week at the 2014 SPARK Institute conference.

This time, it was Groom Law Group Chairman Steve Saxon, one of Washingtonian magazine’s top 20 Influential Persons in the retirement services industry, doing the guessing and, if he’s right, it was good news for foes of the idea.

According to Saxon, even if the DOL releases its rules early next year, as many expect, there’s a decent possibility that it won’t have enough time to finalize the regulations before the Obama administration leaves the White House in early 2017.

How’s that possible? Why would it take two years to put the new standard into effect?

In Saxon’s way of thinking, the rule would no doubt get plenty of scrutiny in multiple hearings with extended testimony. The forces allied against it also will no doubt make repeated efforts to tweak it in their favor.

All of that takes time, he said.

“A lot of people in Washington are working mighty hard to make sure that reg never gets done – including me,” Saxon said in delivering a regulatory update to conference attendees.

That said, Saxon also noted that Phyllis Borzi, an assistant secretary at Labor, has made the issue her “dominant” regulatory initiative and can be expected to continue her push.

Borzi, in fact, has spent four years battling the full force of the financial lobby and pressure from lawmakers of both parties over the rules. She believes people’s retirement savings can be eroded by high fees or unwise investments recommended by advisors with hidden incentives. That’s why she is pushing for brokers to be held to a legal standard that they must act in a client’s best interest, the obligation known as a fiduciary duty. Retirement advisors and their providers already are subject to that duty.

Firms including Morgan Stanley and Fidelity Investments say the change would hurt, not help, small investors.

Saxon said that because nothing has been finalized, there’s been a lot of speculation about provisions that might be included – much of it potentially wrong.

Still, he offered some of his own speculation including the notion that the new rules would mean anyone making a sales presentation would be “crossing the line” and be subject to the higher standard. “Your representatives, brokers and agents … could become conflicted whether they sell affiliated products or even unaffiliated products with different price structures,” he said.

The DOL, he said, also could decide that anyone who talks to a participant about rolling over an employer-sponsored retirement plan into an IRA would be subject to the fiduciary standard.

Saxon also complained that “things are not normal on the regulatory front right now,” because regulators in the past year have issued few advisories or field assistance bulletins.

“I’m most nervous that this abnormal behavior is the new normal,” he said.

Saxon offered no explanation for the drop-off in advisories or bulletins but said he was most concerned that regulators will simply stand back, wait for the industry to “cross the line and then sue us.”

“But I hope that’s wrong,” he said, “and that things will turn around. But just the fact that nothing is happening is an issue in and of itself. … The cone of silence is nerve-racking.”

Also read: Conflicts of interest on DOL’s radar

In a related presentation exploring what federal lawmakers might do in the year ahead, Davis and Harman attorney Derek Dorn, who does government relations work for SPARK, suggested the next Congress will be more productive.

That, however, wouldn’t be much of a tall order, given that the current 113^th Congress has been the least productive Congress since the mid-1940s.

Dorn noted that it’s rare in U.S. history to see a unified government and that, indeed, split governments tend to pass more legislation, because both sides “temper their policies.”

Should the GOP take control of the Senate in Tuesday’s midterms, as many expect, Republicans will feel “an imperative” to govern, to prove to the American people that they can restore order to what has been a dysfunctional body.

On the other hand, a GOP-controlled Senate, Dorn said, could be short-lived, because there will be 34 seats up for grabs in the chamber in 2016, only 10 of which are held by Democrats.

In any case, the first six months of next year, he said, will tell whether lawmakers will be able to get anything done.

On the agenda are some big issues including immigration, environmental policy, the Keystone XL pipeline and the federal budget.

“Those are the hot potatoes and they could poison the well,” spoiling the odds for possible retirement reforms proposed by Sen. Orrin Hatch, R-Utah, and others and which have been advocated by SPARK and others in the industry.

Tax reforms – which Dorn called “the most dramatic threat to the retirement business” – also would have little chance of moving forward.

Also read: GOP Senate could propel retirement reform

Instant Insights /

New fiduciary rule before Obama leaves office? Maybe not

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