President Donald Trump has asked for 180-day review of the U.S. Department of Labor’s new rule requiring that those who give investment advice on retirement savings accounts put client interests ahead of their own. It is, of course, reasonable to assume that this is the prelude to the new administration's effort to kill the so-called fiduciary rule.
If there is an actual shortcoming to the rule, it is this: The fiduciary rule shouldn't apply just to retirement accounts; it should apply to all investment accounts, no matter the size and type. It's probably doubtful that Trump's review will come to this conclusion.
Yet this is what the Securities and Exchange Commission staff who reviewed this issue recommended in 2011. This makes sense for a country facing what former Yale University endowment Chairman Charles Ellis called “a looming retirement crisis.” The Obama administration estimated that the retirement advice in which brokers recommend investments that put their interests ahead of their clients' cost investors $17 billion a year. My less conservative estimates are at least three times that.
Even the big brokers who originally opposed the rule are coming to appreciate the advantages of the fiduciary standard. The Wall Street Journal reported “the brokerage industry, which had largely accepted the rule as law, had already spent hundreds of millions of dollars to prepare for its implementation.” In other words, the financial industry is ready to live with the rule.
Let's look, though, at some of the arguments the financial industry makes against the rule:
No. 1. It won't be profitable to give investors good advice: Where to begin with this one? Somehow, the implication here is that giving investors advice that's bad for them is fine because the financial industry makes more money that way. But the industry trend is toward lower costs anyway, and retirement accounts should be no different.
No. 2 Disclosing fees and incentive payments is problematic: Let's tackle this by invoking Charles Munger's idea -- invert the fiduciary rule to see what would happen. This would mean brokers could take undisclosed kickbacks to push certain products, and place their interests ahead of their customers -- recommending mutual funds and other products that earned them the highest fees, rather than served the interests of clients.
Once you put it that way, it sounds pretty bad. But actually, this is how the industry has been run historically.
The biggest impact of the fiduciary rule is to require disclosure of these conflicts. It would be far better for investors -- and the industry, in the long run -- if those conflicts were simply prohibited.
No. 3 We can balance the priorities: If a broker serves multiple masters -- the firm, his or her own pecuniary interests and the investor -- two of those three will not come first. The mathematical definition is that if you are not putting investors first, then you are making them second or third.