A trio of government agency studies to be released next week-and maybe as early as Friday-could dramatically alter the financial advisor landscape, and industry groups are applying a full-court press to state their case.
The Financial Planning Coalition held a media conference call on Thursday to discuss the potential impact of the studies-two by the Securities and Exchange Commission and one by the Government Accountability Office-that stem from the financial services reform bill that became law last summer. The coalition comprises the Certified Financial Planner Board of Standards, Financial Planning Association, and the National Association of Personal Financial Advisors. Together, the group represents 75,000 financial planning professionals. Meanwhile, Securities Industry and Financial Markets Association urged the SEC to appoint an SRO for certain RIAs.
January 17 is scheduled to be a doubleheader with two studies on tap, but that's a federal holiday and they could be released on Friday. One of them pertains to Section 914 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which asked the SEC to do a six-month study on enhancing advisor examinations and whether creating a self-regulatory organization (SRO) for investment advisors would increase the frequency of exams.
"There's broad agreement that that the exam cycle for investment advisors is too infrequent," said Dan Barry, the FPA's chief lobbyist in Washington, D.C. Indeed, it's estimated the SEC examines investment advisors under its oversight only once every nine years.
But Barry and other coalition members worry the SEC could designate the Financial Industry Regulatory Authority, currently the SRO for broker-dealers, as the SRO for investment advisors.
"It's a broker-dealer self-regulatory structure, so there'd be a conflict with them overseeing advisors," Barry said. "Their experience is examining broker-dealer sales activities as opposed to overseeing advice, so they don't bring experience to the table in that regard."
The coalition's solution is to provide sufficient funding to the SEC to bolster its staff so it can examine advisors more frequently.
But with some Congressional members threatening to deny funds the SEC needs to carry out some of its Dodd-Frank mandates, Barry said he realizes getting additional money for the SEC could be difficult.
A possible alternative is to increase SEC examination fees to be paid for by investment advisors, but there have been rumblings against this on Capitol Hill because it's seen as a tax on the industry.
"I think it's important to underscore the notion that there's going to be some sort of fee imposed upon the investment advisor industry in virtually any scenario that we see as politically viable," said Marilyn Mohrman-Gillis, CFP Board's managing director of public policy and communications.
"If there's to be increased oversight of advisors, then it has to be paid for through either one or two mechanisms-user fees going directly to the SEC or user fees going to a new SRO to be created to oversee advisors," she said.
The second study slated for January 17 pertains to Section 919C of the Dodd-Frank bill that requires the GAO to do a six-month study on financial planners and the use of financial designations. Specifically, it aims to evaluate the effectiveness of regulations that protect investors from individuals who hold themselves out as financial planners through misleading titles, designations or marketing materials; the current oversight structure and regulations for financial planners; and the legal and regulatory gaps in the regulation of financial planners and others who provide financial planning services to the public.
Members of the Financial Planning Coalition want to see financial planners regulated as a separate entity in order to clarify what a financial planner is both to consumers and to the industry at large.
The third study, slated for January 21, is a six-month SEC study on extending the fiduciary standard of care to broker-dealers and other financial professionals who dispense financial advice to clients.
Under Dodd-Frank, the SEC has two mandates: look at the need to extend the fiduciary standard to broker-dealers who currently abide by the suitability standard, and to issue a rulemaking based on the study's finding. If they proceed with issuing a rulemaking, then the fiduciary standard they'd apply to brokers-dealers must be no less stringent under Dodd-Frank than the fiduciary standard that applies to advisors under the Investment Advisers Act.
"That means that the full-fledge fiduciary standard of care with the duties embedded in that standard should be applied to broker-dealers," Mohrman-Gillis said.
The broker-dealer and insurance industries adamantly oppose a full-bodied fiduciary standard imposed on their business models because they argue it would boost their compliance costs. In turn, that could make their services too expensive for many Main Street investors. Insurance agents would be brought into this if they do business under the Series 6 or 7 as a registered rep.
Nancy Hradsky, NAPFA's special projects manager, doesn't buy that argument. "You have to look at the overall costs of things. You can take offense to the idea that middle-class Americans can't afford advice that's in their best interests. Investments in highly-loaded annuities or packaged products inside of products are costing folks a great deal currently. We'd look for those expenses to come out from the cloak of darkness that has covered those products."
If the SEC's stance on the fiduciary standard isn't to their liking, Financial Planning Coalition members plan to keep up the fight. Mohrman-Gillis said a study of U.S. investors showed overwhelming support for the notion that any financial professional providing investment advice should put client interests ahead of their own, and that investors should be told up front about any fees or commissions advisors earn and any conflicts of interest that could potentially influence their advice. As such, she said one potential strategy is to take their case to the public.
"It's one of those issue where we'll have to keep speaking loudly and clearly," she said.