Melnick: Demand more from financial advisers.
President Donald Trump has been busy. In just over two weeks, he issued 18 executive orders, including a couple that are particularly questionable. The president banned certain Muslims from entering the United States and appointed adviser Steve Bannon, former executive chairman of Breitbart News, to the National Security Council. The reasons these policies are controversial is self-evident.
But recently Trump’s tone changed. He issued an executive order attacking financial regulations, including the Fiduciary Rule, which was slated for April implementation. He signed these anti-financial regulation proclamations surrounded by like-minded legislators, including Rep. Ann Wagner (R-Mo.) whose St. Louis district is home to multiple national investment firms, including Edward Jones, Scottrade, Stifel Financial and Wells Fargo Advisors — a city she touts as “one of the largest clusters of brokerage firms outside of New York.”
The president did not take his giant pink eraser to Dodd-Frank or the Fiduciary Rule making holes and leaving rubber shards in his wake. What he did was more insidious. The president’s orders harkened back to his populist campaign rhetoric: he delayed the Fiduciary Rule’s implementation pending a study about retirement investors’ access to financial advice under the rule. Wagner claimed, “We are returning to the American people, low-and middleincome investors, and retirees, their control of their own retirement savings. This is about Main Street.”
No, it’s not. The purpose of the Fiduciary Rule is to require financial professionals who advise retirement savers to act in their clients’ best interests — what most Americans believe their brokers, insurance agents and financial advisers are already doing. In reality, most financial professionals need only recommend “suitable” investments. A front-load, high annual fee index mutual fund might be a suitable investment for your IRA even if a no-load, low annual fee index mutual fund is available. And since it’s suitable, your financial adviser can recommend the more expensive mutual fund, knowing he’ll earn a bigger commission for doing so. The White House Council of Economic Advisers in 2015 determined that retirement savers lose $17 billion annually from exactly this type of conflicted advice.
Conflicted advice inspired the Obama administration to develop the Fiduciary Rule in 2009. The rule-making process involved multiple opportunities for public comment, multiday hearings and revisions by the Department of Labor. The financial services industry repeatedly objected, hating the rule from the get-go. The final rule was issued in April 2016, with an April 10, 2017, effective date. Wall Street trade organizations and insiders, including, for example, the American Council of Life Insurers (ACLI), the National Association for Fixed Annuities and the Securities Industry and Financial Markets Association, challenged the Fiduciary Rule in Texas, Washington, D.C., Minnesota and Kansas federal courts starting in June 2016 alleging, for example, that the rule violates the First Amendment because it limits the (bad and conflicted) advice investment advisers can offer.
If Trump is right and the Fiduciary Rule will limit investors’ ability to find financial professionals willing to advise them, then financial professionals — unwilling to put their clients’ interests first — are the problem, not the rule. Looking outside the financial services context, what if car dealers refuse to sell used cars in your city because an ordinance requires dealers to sell properly functioning cars or disclose defects? The solution is not to scrap the ordinance and allow sales of defective cars.
Here are three key features of the rule:
It requires investment advisers (including brokers and insurance agents) who advise retirement investors to act as fiduciaries, requiring them to put your interests ahead of their own.
Advisers may continue to receive commissions if they comply with the Best Interest Contract Exemption (BIC or BICE) and commit in writing to act in investors’ best interests, charge reasonable compensation and disclose how they are paid.
Investors can file class-action lawsuits against advisers and firms who breach their fiduciary obligations.
Trump’s executive order requires that the rule be studied, but it can’t be upended without congressional or regulatory action. This rule is a no-brainer. Insist that your senators and representatives protect you from Wall Street’s interests and influence. If you need more convincing that Wall Street isn’t looking out for investors, consider Wall Street and its champions in their own words:
Gary Cohn, White House National Economic director and former Goldman Sachs president: “We think it is a bad rule. It is a bad rule for consumers . ... This is like putting only healthy food on the menu, because unhealthy food tastes good but you still shouldn’t eat it because you might die younger.”
ACLI President and CEO, Dirk Kempthorne: “It is urgent the Department of Labor grant a delay in the application of the regulation, given the significant and harmful impact of the regulation on the ability of Americans to save for a financially secure retirement. Life insurers are proud to act in the best interest of consumers.”
House Speaker Paul Ryan (R-Wis.) tweeted: “President Trump’s action to delay the #fiduciary rule is a wise one. It’s Obamacare for financial planning.”
Given Wall Street’s anti-Fiduciary Rule rants coupled with an inconsistent professed desire to act, “in the best interests of consumers,” the Fiduciary Rule likely is to be delayed and perhaps revised.
So employ your own DIY Fiduciary Rule.
Demand your investment adviser commit to the fiduciary oath in writing. If he refuses, replace him.
Research your financial adviser before you hire him. Look at FINRA’s BrokerCheck for a brokers’ employment and disciplinary history and SEC investment Adviser Public Disclosure Database for investment firms’ filings (hint: start with the firm’s ADV-2 brochure) and advisers’ employment, exams, registrations, and disciplinary history.
Ask your financial adviser questions and demand answers.
In 2015, Sen. Elizabeth (D-Mass.) investigated kickbacks offered to the largest 15 annuity companies and found that 13 of the 15 incentivized their agents with kickbacks — including exotic, all-expenses-paid vacations and golf outings. The companies buried vaguely worded customer disclosures about the kickbacks deep in their hundred-page prospectuses. The Fiduciary Rule would end this. But, for now, you’ll have to demand your financial advisers disclose and forgo these extravagant rewards.