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Lawmakers Exploring Alternative to DoL Fiduciary Rule

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Some members of Congress are trying to find a better alternative to protect retirement savers than the Department of Labor's fiduciary proposal. They are drafting their own proposal that would establish rules for advisors working with  savers and plans, such as the requirement to act in clients' best interests, without the regulatory burdens and litigation risks that critics see in the DoL plan.

At a hearing on Wednesday, Rep. Phil Roe (R-Tenn.), said that the bipartisan proposal seeks "to develop a legislative solution that will accomplish what the Department of Labor has failed to do."

Roe, who chairs the education committee's Subcommittee on Health, Employment, Labor and Pensions, echoes the familiar critique that the Labor Department's proposed regulation would raise the cost of retirement advice and reduce access for lower-income Americans and small businesses.

"Our proposal will strengthen retirement security, but unlike the department's approach, it will do so without hurting working families and small businesses," Roe says.

The proposal that Roe is helping develop, which has yet to be introduced as a bill, is based on a set of principles for financial advice in the retirement sector that lawmakers unveiled in November, at the time warning about "unintended negative consequences" of the DoL's fiduciary regulation. In addition to an enforceable best-interest standard for advisors, the principles assert that "retirement advisors must deliver clear, simple and relevant disclosure of material conflicts," including those related to fees and other compensation.

Those guidelines are in the same spirit as the Labor Department's proposal, which administration officials say is a needed protection to guard against conflicted advice that they say costs retirement savers billions of dollars.

On the other hand, Roe's framework would also make it the goal of public policy to preserve access for individuals and small businesses to a full complement of financial instruments and education, singling out proprietary products and commission-based sales, business models that critics say the Labor Department's rule would eliminate.

Consumer advocates who favor the DoL proposal as an important investor protection are wary of the lawmakers' framework, both on process and substance.

They argue that the Labor Department, acting under its authority in the 1974 Employee Retirement Income Security Act statute, is the appropriate entity to advance the fiduciary regulation, which it has been evaluating for the past five years.

"We believe that updating the outdated 40-year-old definition of fiduciary under ERISA is an essential and long-overdue reform to protect America's retirement investors," says Marilyn Mohrman-Gillis, managing director of public policy and communications at the CFP Board, who testified on behalf of the Financial Planning Coalition.

"We also believe that congressional intervention in this administrative rulemaking process at this time is not necessary and would only serve to delay or derail the rule," Mohrman-Gillis says. "For members of Congress who truly want a best-interest standard for retirement savers, allowing the DoL to proceed to a final rule without intervention is the best way to achieve that goal."

Backers of a strong fiduciary standard raised similar objections to an earlier effort to block the Labor Department's rule. In late October, the House of Representatives passed the Retail Investor Protection Act, which would bar the DoL from proceeding with its rule until the SEC enacted a separate fiduciary proposal to harmonize the standards of conduct for investment advisors and broker-dealers. The bill appears unlikely to move in the Senate, and the White House has threatened a veto.

Mohrman-Gillis is also critical of the new fiduciary principles Roe and other lawmakers are developing for failing to adequately address conflicts in retirement sector, which she says must be eliminated or mitigated, not merely disclosed. Further, those principles "fail to meet the true best-interest standard," she argues.

Mohrman-Gillis is dismissive of the industry's claims that the fiduciary proposal is simply unworkable and that it would compel advisors to abandon the commission model rather than submit to the so-called best interest contract exemption, as critics have charged. The inevitable result, those critics say, will be that millions of low- and middle-income Americans won't have access to professional counsel when, say, they move to roll over a retirement account.

But Mohrman-Gillis recalls the jolt the financial-planning sector anticipated in 2008, when the CFP Board established its own fiduciary requirement and many practitioners fretted that the move would put them out of business.

"Contrary to these predictions the sky did not fall -- just the opposite," she says, citing the 30% growth in CFPs the intervening years have seen.

"Today there are thousands of CFP professionals, and FPA and NAPFA members across the country who provide fiduciary-level services to everyday Americans under commission-based business models. If our experience is any indication, firms and advisors are more likely to adjust their policies and practices than to abandon middle-class clients," she says. "It defies credibility to think that firms and advisors will walk away from a $300 billion-a-year rollover market just because they're obligated to provide advice in the best interest of the retirement saver."

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