Advisors look out, the potentially easy Fiduciary Rule you have been counting on is now seriously in doubt. For several months the consensus view was that the DOL would create a companion rule to the SEC’s Best Interest rule, but in a significantly less onerous way than the original Fiduciary Rule. That assumption now looks misguided because DOL chief Acosta has resigned, meaning there will be a major leadership change and a likely revisiting of strategic priorities.
FINSUM: Acosta has been pretty industry friendly, so this review is nerve-racking as there seems to be an equal likelihood of a either a tougher new chief, or a similar/relaxed one.
Have you been concerned about the newest iteration of the DOL’s Fiduciary Rule, which is due out by the end of this year? You should have been. While investors have been anxious about it, the generally more industry-friendly DOL under Trump has alleviated some anxieties. However, some thing very big just happened—DOL chief Acosta has resigned (amidst the Jeffrey Epstein scandal). That means there is likely to be a significant review and change of priorities as new leadership comes in. That leaves the fate and direction of the DOL very uncertain.
FINSUM: This is not necessarily good news. One could get giddy and think the Fiduciary Rule might no longer be a priority, but there is an equal chance the next head of the department may come in and say “this isn’t tough enough”.
Jay Clayton came out punching for the SEC’s new Best Interest Rule this week. The rule has faced a lot of criticism from all sides, but was finally approved internally. Now, Clayton is combatting critics. In particular, the SEC chairman is defending the harshest criticism of the rule—that it does not define “best interest”. Clayton argues that using a principles-based framework, which relies on a contextual definition of best interest depending on the situation in question, is a well-trod regulatory path and one that is superior to creating a definition for every scenario.
FINSUM: We don’t love this rule, but we agree with Clayton on this point. Having a highly defined rule leaves it more vulnerable to loopholes. With the current contextual structure, one has to worry whether their behavior could be considered “best interest” depending on an amorphous standard. It seems like a better way to keep bad actors in line.
In what comes as a real eye opener, the House passed a bill this week that would block the SEC’s ability to enforce its new fiduciary rule. The driving force behind the rule, you guessed it, Maxine Waters. The measure came as part of a broader bill regarding the funding of federal agencies. The bill now heads to the Senate, where it will likely be changed and then re-voted on. Democrats, who are in charge in the House, are worried the SEC’s rule does not go far enough to protect investors.
FINSUM: The interesting thing here is that this bill is likely not totally dead in the Senate. We wonder how hard the Democrats will stick to this part of it.
The White House is considering a new plan to cut capital gains taxes. The administration is seeking to do so by indexing capital gains rates to inflation, a move that would significantly help wealthier Americans lower their tax bills. Interestingly, the White House is considering advancing the bill in such a way as to bypass Congress. The impetus for doing so is that they want to make sure the changes hit before the 2020 election.
FINSUM: This is quite logical and could have a big impact. Imagine you could exclude 2% of an annualized 8% gain from all capital gains taxes!
The SEC’s Best Interest rule is still being digested by markets. It contains some potentially big changes, including the definition of fiduciary duty. The DOL is yet to release its new Fiduciary Rule, but it will reportedly work smoothly alongside the SEC’s rule. One of the questions that has arisen in this context is whether under the new rules it may be increasingly easy for fiduciaries to accept commissions. The idea of fiduciaries accepting commissions is generally a big no-no in the current paradigm, but top industry lawyers like Fred Reish see this loosening under the new rules. In particular, it is seeming as though broker-dealers could accept commissions when offering fiduciary advice, but the jury is still out on RIAs.
FINSUM: This is just one of the many new changes that are on the horizon. The combination of new rules will likely create grey areas, risks, and opportunities that are not yet apparent.