A subcommittee hearing in the U.S. House of Representatives revealed differences in strategy as to how Republican and Democrat critics of the Department of Labor’s proposed fiduciary rule will operate as regulators finalize a rule.

Health, Employment, Labor, and Pensions subcommittee chair Rep. David Roe, R-Tennessee, one of four lawmakers to recently circulate an outline for a legislative alternative to the DOL’s rule, called the agency’s proposal a “well-intended big-government scheme” that would make it harder for Americans to save for retirement.

Roe called on the DOL to withdraw the rule and work with Congress to write alternative legislation.

That would result in a “more responsible approach” than the one the DOL has taken in crafting its rule, which Roe called extreme, unworkable and misguided.

But the subcommittee’s ranking member, Rep. Jared Polis, D-Colorado, who has voiced concerns over the proposal’s complexity and gone so far as to call on the DOL to open a several-week comment period after it amends the proposal, was clear that he and most of his Democratic colleagues have no intention to craft legislation that would block the DOL from implementing a rule.

“Legislation must accomplish the goal of a strong, enforceable workable regime,” said Polis. “Our goal should not be a (legislative) product the prevents an enforceable conflict of interest standard from being implemented, but rather furthers it.”

Roe’s legislative outline, which he released with Rep. Peter Roskam, R- Illinois, Rep. Richard Neal, D-Massachusetts and Rep. Michelle Lujan Grisham, D-New Mexico, is based on seven principles.

Among them are requirements that financial advisors always serve their clients’ best interests and fully disclose conflicts of interest in clear and simple terms.

The principles also say public policy should not deny individuals access to investing information, restrict investor choice, or prohibit small businesses from accessing plan advisors—three unintended consequences of the DOL’s proposal, claim its critics.

Polis called the principles “broad,” and suggested any legislation crafted on them would have to go far beyond articulating a general fiduciary standard of care. “The devil is always in the details,” he said.

One panel witness, Bradford Campbell, an ERISA attorney with Drinker, Biddle and Reath and former head of the DOL’s Employee Benefits Security Administration, called the seven principles “common sense guidelines,” and said the DOL’s proposal violates each.

As written, the rule will reduce investor choice and increase costs and frivolous litigation, Campbell said. Ultimately, fewer savers of modest means would have access to advice. Campbell sited data from the DOL showing that lack of investment advice results in avoidable errors that cost savers up to $100 billion each year.

He called on legislative action, saying Congress is the proper institution to address the conflicts of interest the DOL is attempting to ameliorate.

But Marilyn Mohrman-Gillis, managing director of the Certified Financial Planner Board of Standards, which accredits fiduciary advisors, suggested Campbell’s and other likeminded arguments are a red herring.

“When we adopted a fiduciary standard in 2007, we heard the same arguments from firms and industry organizations that are being made against the DOL today,” said Mohrman-Gillis.

The “sky did not fall,” she said, but rather the organization has seen a 33 percent growth in membership since.

Contrary to a core argument critics of the DOL make, the proposal does not require advisors to give up commission-based compensation. Today, CFP accredited advisors operate under a prohibited exemption regime comparable to the one proposed in the rule’s Best Interest Contract Exemption, said Mohrman-Gillis in her sworn testimony.

That has not eliminated commission-based compensation. “Thousands of CFPs are providing fiduciary services to middle class Americans under a commission-based business model,” she said.

As far as the seven principles Rep. Roe hopes to build into alternative legislation, Mohrman-Gillis said the DOL’s rule already embraces and far exceeds their spirit.

“Congressional intervention is unnecessary and would serve to derail the rule,” she said.

“We urge Congress to allow the DOL to promulgate this long overdue and badly needed rule,” she added, saying the existing regulatory structure rewards advisors for recommending products that cause investors to lose billions annually.

Instant Insights /

Republican, Democrat critics of DOL fiduciary rule split on strategy

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