PALM BEACH, Florida – The never-ending speculation about whenthe Department of Labor might finally issue a new fiduciarystandard came into play once again this week at the 2014 SPARKInstitute conference.

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

According to Saxon, even if the DOL releases its rules early nextyear, as many expect, there’s a decent possibility that it won’thave enough time to finalize the regulations before the Obamaadministration leaves the White House in early 2017.


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


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


All of that takes time, he said.


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

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

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


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


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


Still, he offered some of his own speculation including thenotion that the new rules would mean anyone making a salespresentation would be “crossing the line” and be subject to thehigher standard. “Your representatives, brokers and agents … couldbecome conflicted whether they sell affiliated products or evenunaffiliated products with different price structures,” hesaid.


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


Saxon also complained that “things are not normal on theregulatory front right now,” because regulators in the past yearhave 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 orbulletins but said he was most concerned that regulators willsimply stand back, wait for the industry to “cross the line andthen sue us.”

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

Also read: Conflicts of interest on DOL’s radar


In a related presentation exploring whatfederal lawmakers might do in the year ahead, Davis and Harmanattorney 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 thatthe current 113th Congress has been the least productiveCongress since the mid-1940s.

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

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

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


In any case, the first six months of next year, he said, willtell 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 federalbudget.

“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 bySPARK and others in the industry.


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

Also read: GOP Senate could propel retirement reform

Complete your profile to continue reading and get FREE access to BenefitsPRO, part of your ALM digital membership.

  • Critical BenefitsPRO information including cutting edge post-reform success strategies, access to educational webcasts and videos, resources from industry leaders, and informative Newsletters.
  • Exclusive discounts on ALM, BenefitsPRO magazine and events
  • Access to other award-winning ALM websites including and

© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.