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Fiduciary Duty For All Hangs On Senator Tim Johnson

After months and months of public debate and back-room deal-making, a final outcome on fiduciary duty—the biggest issue for financial advisors, stockbrokers and wealth managers in the Wall Street reform bill—may be decided Wednesday, and depends heavily on how Senator Tim Johnson (D., S.D.) votes in conference debate.

correction: an earlier version of this story said that Wednesday's conference session begins at 11 a.m. ET. In fact, it begins at 12 p.m.

After months and months of public debate and back-room deal-making, a final outcome on fiduciary duty—the biggest issue for financial advisors, stockbrokers and wealth managers in the Wall Street reform bill—may be decided Wednesday, and depends heavily on how Senator Tim Johnson (D., S.D.) votes in conference debate.

As expected, the House Financial Services Committee proposed Tuesday afternoon that legislators adopt House language on the fiduciary issue for the final Wall Street reform bill, which would apply a fiduciary duty to all investment professionals when they provide personalized securities advice to individual investors. This and other investor protection provisions are on the schedule for Wednesday, with the conference session kicking off at 12 p.m. ET.

The 16 House conferees are expected to easyily get a majority vote in favor of the fiduciary duty provision. A majority of the 12 senate conferees (including Johnson) must also vote in favor of the House recommended changes, and these conferees include 7 Democrats and 5 Republicans. All of the other Democrats are very strong on the fiduciary standard, says David Tittsworth, executive director of the IAA (Investment Advisers Association), while none of the Republicans is likely to step out of line with their party and vote in favor of it.

“We need all 7 senate Dems to agree to what the House wants,” said one Washington-based lobbyist who preferred to speak off the record. “I think we have a shot at it but I think it’s a long shot.”

Johnson supported language in the Senate version of the reform bill that would call for a one-year SEC study of overlaps and gaps in regulation between investment advisers and brokers, including the subject of fiduciary duty, but would not authorize the SEC to extend the fiduciary duty to brokers. Johnson’s staff has lately been saying that he is coming around, according to Tittsworth, due in part to pressure from consumer groups like AARP (American Association of Retired Persons) and Americans For Financial Reform, who have been asking members and constituents in the state of South Dakota to call and write letters to Johnson’s office.

“We have heard that some of the consumer groups who have been very active on this, like the AARP, they evidently may have had some impact on Senator Johnson,” said Tittsworth. “But there are lots of insurance agents in South Dakota, and they’re very politically active and they have a lot of money and resources.”

AARP said it stepped up its grass roots lobbying efforts in South Dakota just in the past week. "Our state office has been talking with Senator Johnson’s staff during the past couple of months regarding the fiduciary duty issue and have been in contact last week and today to press for the Senator’s support for the House fiduciary duty language," wrote Sarah Jennings, state director for AARP in South Dakota in an email respone. "We are working to educate all members and the public on the fiduciary duty issue through the media, and we are sharing information regarding this important investor protection issue with our statewide volunteer leaders during meetings across the state this week. We are also letting some of our activists know about the imminent vote and encouraging them to weigh in with the Senator’s office."

Of course, if the House offer is not accepted, that is not necessarily the end of a fiduciary standard for all. Senate conferees could make a counter-offer, with pieces of both bills. And if the vote fails, Barney Frank [D., Mass.], chairman of the financial reform committee, could go back and see if he can’t find another compromise.

The standard has a lot of support inside and outside of Congress. Frank, who chairs the financial reform committee, has made it clear that fiduciary duty is a priority for him. Paul Kanjorski, Chairman of the House Financial Services subcommittee, has also voiced his support for it, saying during opening statements for the reconciliation process last Thursday that “We must have the strongest fiduciary duty for every financial intermediary providing personalized advice.” SEC Commissioner Luis A. Aguilar has publicly stated that he sees no need for another study. And the current Obama administration has also indicated its support for the standard.

Final Lobbying Push

Consumer, industry and regulatory groups on both sides of the fiduciary debate have been making a final push with Congressional staff, their own members and the media in the past week. The Financial Planning Coalition, a group that includes 75,000 members from the Financial Planning Association and the fee-only planning group NAPFA as well as CFP certificants, sent out a grass roots alert on Friday to 6,000 of its members who are in districts represented by conferees. “I don’t know how many of them have sent letters, but in the past we’ve had tremendous support when we go out to a targeted group,” said Bob Glovsky, spokesman for the coalition. His group’s membership includes many individuals who do commission-business, he pointed out. “The majority of CFP certificants and FPA members do receive commissions as some part of their compensation. They’re all under a fiduciary standard. They’ve been able to run their business effectively.”

The IAA, which doesn’t have a single member in South Dakota, has been asking members to contact conferees and non-conferees in their states, a continuation of efforts they have been making for some time. Meanwhile, NAIFA (the National Association of Insurance and Financial Advisors), which has 11 local associations in the state of South Dakota, said it is continuing lobbying efforts it has used over the past year. “As for lobbying we’ve had a very successful grassroots effort over the past year and we’re continuing those efforts,” said NAIFA President Thomas Currey. He declined to elaborate.

Pro-fiduciary groups also held press conferences Tuesday. NASAA (North American Securities Administrators Association) Chairman Denise Voigt Crawford held a call Tuesday morning to reiterate the group’s position on several investor protection issues to be considered by lawmakers, including fiduciary duty. Separately, a group that included Crawford, Glovsky, Barbara Roper, Director of Investor Protection at the Consumer Federation of America and Tittsworth, also held a press teleconference to re-emphasize their support for the standard.

“We’ve been writing to conferees, calling conferees,” said Roper on the call. “The reality is, there is broad support for this provision. The question is, is Senator Johnson willing to make a compromise.”

“We continue to talk to staff members on the conference,” added Crawford. “It’s impossible to get an audience with them but we’ve been dealing with them through their staff. Since we have presence in every state that has given us advantage to communicate what we think is important. We continue to say it is the number one thing Congress can do to help mainstream investors.”

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