Newsflash: The person giving you financial advice may not have your best interest at heart.
It’s been that way since before Richard Whitney stole millions from a “widows and orphans” fund in the 1930s. Lawmakers are trying to do something about it—yet again. But there has been little progress and almost no reason to believe meaningful reform is imminent.
In separate actions, the Securities and Exchange Commission and the Department of Labor are weighing proposals that would require all who give investment advice to act as “fiduciaries,” meaning they must put their clients’ interests ahead of their own. Incredibly, the law currently allows some professionals who give advice to act out of self-interest—so long as the investments they sell are “suitable” for the client.
The dividing line is between registered investment advisers, who typically work on a fee-basis with individuals and are legally bound to do what’s best for the client; and brokers, who typically work on a commission-basis and need only meet the lesser suitability standard.
This would seem an easy fix. Simply require that brokers, who are in the advice business as well, meet the higher standard of acting in the client’s interest. After all, if you ask them they will tell you that they do that already. Why not hold them to it legally?
But nothing is simple on Wall Street, where clients are most likely to be seen as cash cows—not valued customers. This culture of profiting from individuals’ trust and naïveté famously prompted Fred Schwed in 1940 to ask, Where are the Customers’ Yachts?
The drum beat for reform has been turned back time and again while individuals endure hits to their pocketbook that range from simply being put into inappropriate and high-fee mutual funds on up to massive losses at the hands of scammers like Barry Minkow and Bernie Madoff.
Yet the reform effort never goes away, either. It was given a serious boost in the wake of the financial crisis, when Dodd-Frank legislation compelled the SEC to look at the fiduciary rule and propose a fix. The DOL was working on reforms of its own even before that, seeking to extend fiduciary status to anyone offering advice on retirement products like 401(k) plans and IRAs.
We seemed close to a solution two years ago, when the SEC proposed that brokers be held to the same standard as advisers. Then came a numbing wave of dissent and politics.
Critics charged that there was no proof of harm and that subjecting brokers to the higher standard would raise compliance and legal fees to the point where individuals would be priced out of the market and left to make financial decisions with no professional guidance at all.
“Neither the SEC nor DOL have considered the serious, adverse consequences that would befall retail investors if these rules move forward,” Ann Wagner, R-Mo., told Bloomberg News. Wagner was instrumental in sidetracking the SEC and DOL reforms with a bill that passed the House on Thursday.
Her bill tied the DOL reforms to the SEC reforms, and it is now apparent that the SEC lacks any urgency to move on this front. The agency has put out a request for comments on a cost-benefit analysis of changing the fiduciary rule. It likely would be years before another SEC proposal is forthcoming.
So a simple fix—make all financial advisers put the client first—has been derailed, again. As ever, we’re left to trust advisers (or not) when they say they are doing the right thing.