In Congressional testimony and in a series of interviews last week, SEC chairwoman Mary Schapiro and FINRA CEO Richard Ketchum started to provide their blueprint for a new regulatory system of the future. Nobody was surprised to hear the two longtime colleagues call for a "harmonization" of regulations between brokers and investment advisors.
But some were surprised to hear Ketchum advocate that brokers be required to adopt the same fiduciary standard that RIAs are expected to uphold, essentially forcing them to place clients' interests ahead of their own or their firms'. For almost two decades, a number of broker-dealer execs have privately commented that they believe everyone in the business should be held to a fiduciary standard; that comment had been immediately followed by the remark that they can't be quoted saying as much.
My question, though, is twofold: Are Schapiro and Ketchum sincere in their goal of elevating standards for all brokers, or are they using the "F" word as a Trojan horse to minimize opposition to harmonizing regulations from nettlesome folks at places including the FPA and NAPFA? Under this scenario, they could argue for a universal application of fiduciary regulations, get RIA support, and then, at the 11th hour, drop in last-minute legislative bargaining.
Assuming they are sincere, do they have the legislative bargaining clout to get it through Congress? If they do, what will happen to brokers who, for example, refuse to sell an IPO to their clients? In the past, only top brokers were able to dodge such chores because the firms were afraid to lose big producers. Grunts had no such luck.
Would new regulations create two classes of brokers, fiduciary reps and nonfiduciary salespeople who could still market a firm's products? Would IPOs be relegated to Dutch auctions, which have shown a lot of promise in recent years?
There are hundreds of questions and details that I doubt many people on all sides of this issue have even conceived of, much less considered. One of the more disturbing characteristics of the Obama administration is its continuation of the legislative tactics conceived early in the Bush administration and perfected seven years later by its Treasury secretary, Henry Paulson, with the support of his chief co-conspirator, Barney Frank.
This strategy involves writing a piece of vague legislation granting the government sweeping powers, then going to Congress and telling members that if it's not passed in 36 hours, terrorists will attack any minute. Or in the case of TARP, saying that the global financial system will completely collapse in 72 hours if TARP isn't passed, even though the authors will decide to change TARP one week later. It's an effective way to spook Congressional fools into passing laws, but it can result in terrible laws.
Designing a regulatory structure for the 21st century is far too complicated a task to be railroaded through Congress.