After hours of delay due to a house sit-in by House Democrats, the House of Representatives failed late Wednesday night to override a presidential veto on a resolution to nullify the Department of Labor’s fiduciary rule.

House Democrats began their sit-in before noon Wednesday to force a vote on gun control legislation. House Republicans managed to break the sit-in long enough to vote on the override, which passed on a party-line vote of 239-180, but fell short of the two-thirds vote needed to override the president’s veto.

“The outcome of the vote was fully expected,” Skip Schweiss, managing director of advocacy at TD Ameritrade Institutional, told ThinkAdvisor. “The president holds the veto pen, and the regulation will remain in place until and unless a court decides otherwise,” said Schweiss, who was on Capitol Hill Wednesday lobbying with 100 other members of the Financial Planning Association. “We don’t put high probability on that happening. Financial advice providers of all stripes need to focus on implementation, compliance and addressing opportunities in the post-DOL rule world.”

Micah Hauptman, financial services counsel with the Consumer Federation of America, agreed that failure of the override was inevitable.

“It was clear what the results would be,” he said. “We knew how the vote would turn out. I don’t expect members to suddenly switch their positions; if they do they’ll have some serious explaining to do.” The override attempt, Hauptman added, is just “another opportunity for those who oppose [the DOL rule] to register their opposition again.”

Indeed, opposition to DOL’s fiduciary rule will be “a multi-year long fight because the opponents have made clear they will stop at nothing to kill this rule or neuter it in any possible way they can.”

The DOL fiduciary rule, Hauptman argued, “could be the next Obamacare where every few months, members reiterate how strongly they oppose this rule.”

Next up are likely attempts to insert a policy rider on a spending or budget bill to defund DOL’s rule, Hauptman continued, as well as attempts “to delay implementation” of the rule.

Other “backstops,” Hauptman said, could be a court granting a preliminary injunction, as well as a string of bills offering “technical” fixes to the rule, “like what we’ve seen in the Dodd-Frank context … to chip away and open a loophole in the rule.”

Five lawsuits have been filed against DOL’s rule. DOL filed a motion Friday requesting that the three lawsuits pending in the U.S. District Court for the Northern District of Texas be consolidated; the plaintiffs agreed to consolidation but insisted that each of the cases be allowed to “retain their separate identities” and move forward “expeditiously.”

Rep. Ann Wagner, R-Mo., noted in her prepared Wednesday floor remarks that "the administration calls it the 'fiduciary rule,' but it is really just Obamacare for Americans’ savings accounts, and another power grab by Washington bureaucrats to control our retirement savings. You see, this rule will make financial advice more costly and less available to millions of middle-income workers and retirees. With a number of organizations already in court making their case why this rule is unworkable, it’s clear that jobs are on the line, and more importantly, families will lose access to sound professional financial advice."

Instant Insights /

House override vote to kill DOL fiduciary rule fails

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