Tuesday’s historic election saw Donald Trump swept into office, leaving Republicans in control of the White House and Congress, and likely in control of the Supreme Court. The wave of populist anger Trump seemed to ride into power sent markets into turmoil.
For those in the advisory industry, many questions were raised by Trump’s victory. Among them: What are the odds that the Donald Trump administration can overturn the Department of Labor’s much criticized fiduciary regulation?
The fiduciary rule, which was meant to address conflicts of interest in among professionals who give retirement advice, is seen as costly and cumbersome by many in the industry. Though others have said they welcomed the rule and it was in the industry’s best interest. The fiduciary rule was adopted in April of this year, and was set to go into effect in April 2017. Investor advocates are already saying the long-fought-for fiduciary rule is at risk. (For more, see: The Fiduciary Rule: What Will Implementation Cost?)
Experts caution it’s difficult to know beforehand specific decisions a president will take when he is in office, and the mercurial Trump has been less predictable than most. But if the president-elect has been vague on specific policy proposals, he has also naturally positioned himself in opposition to Obama-era policies. His campaign website states he would require federal agencies to rank all regulations according to how critical they are. Those regulations deemed “least-critical” would get “priority consideration for repeal.”
Trump advisor Anthony Scaramucci, founder of Skybridge Capital, has reportedly said Trump would repeal the rule. (For more, see: Fiduciary Rule Will Cost Industry $11B by 2020.)
Since its publication last spring, brokerages and financial advisors have been planning and investing in new systems to comply with the rule. This election could now put those plans on hold.
The Financial Services Institute, in a statement by chief executive Dale Brown, said, “We stand ready to work with [Mr. Trump's] administration in ensuring Main Street Americans have access to objective and affordable financial advice as they save for a dignified retirement, pay for their children's education and help care for aging parents.” (For more, see: DOL Releases First Round of Fiduciary Rule FAQs.)
Critics of the rule have said it would make retirement advice more costly by increasing liability risks and regulatory costs. It has already been the subject of lawsuits, including suits from the National Association for Fixed Annuities, the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association. Though suits had been overturned by lower courts, some opponents of the rule hoped the challenge could go all the way to the U.S. Supreme Court. (For related reading, see: Top Takeaways from the DOL's Fiduciary Rule FAQs.)
President Obama had vetoed previous legislative attacks on the rule.
All Regulations Are on the Table
Barbara Roper, director of investor protection at the Consumer Federation of America, told InvestmentNews that Republicans "have made it clear that rolling back those protections will be on the agenda of a Republican administration."
Though Democrats will be in the minority in the Senate they could still have the numbers to filibuster repeal attempts.
Review of the old rule and associated questions of conflicts of interest began in 2009 in the wake of the financial crisis. The DOL held public hearings on proposals in 2010 and 2015. In addition to describing the kinds of communications that give rise to fiduciary investment advice responsibilities, the rule also defined a “recommendation” as the fundamental threshold in establishing the existence of fiduciary advice.
The DOL had expanded the definition of an investment advice fiduciary under the Employee Retirement Income Security Act and changed the roster of prohibited transaction exemptions. It held on to earlier ERISA distinctions between “investment education” by non-fiduciaries and fiduciary “investment advice.” The DOL, in its rulemaking, said the new standards would save middle-class families billions of dollars each year.