Updated Thursday May 6, 2:14 p.m.
A number of senators, Republican and Democrat, are scrambling to get on the fiduciary bandwagon following last weeks' Goldman Sachs hearings. A flurry of amendments have been, or will be, introduced this week that would apply the fiduciary standard more widely.
Meanwhile, on Wednesday, the White House blog made fiduciary duty #1 on its “Good Guys” list, meant to highlight those issues that are being supported by the "good guys" in Congress, as opposed to those who are blocking true Wall Street reform.
Senators Daniel K. Akaka (D, Hawaii) and Robert Menendez (D, New Jersey) plan to introduce an amendment tonight to the Senate financial services reform bill that would require the SEC to write rules extending the fiduciary standard to brokers, according to Akaka’s press secretary. In the current version of the Senate reform bill, the SEC would instead be required to complete a year-long study of whether brokers should be held to a fiduciary duty when providing clients with advice.
On Wednesday, Senator Arlen Specter (D, Penn.) separately introduced two amendments related to fiduciary duty. One, cosponsored with Ted Kaufman (D-Del.), would extend a fiduciary duty to all broker/dealers and brokers who provide investment advice—not just to retail clients, but to institutional clients as well. It would also impose criminal penalties for willful violations of the fiduciary standard. The second amendment, co-sponsored with Kaufman and Sen. Jack Reed (D-R.I.), would give defrauded investors the right to sue those who knowingly aid and abet securities fraud.
“This amendment goes well beyond what the administration proposed or we support,” said David Tittsworth, executive director of the Investment Adviser Association. “I think it would be doubtful that he would get enough support to get that passed.”
In the meantime, Senator Susan M. Collins (R-Maine), who peppered Goldman executives with questions about fiduciary duty during last week's hearings, was initally rumored to be working together with Akaka and Menendez on a bipartisan fiduciary amendment, but is now working alone to draft her own. Which if any of these amendments will actually be offered on the Senate floor for a vote is a separate matter.
“There is a fair amount of activity and interest in fiduciary duty; the Goldman enforcement proceeding has heightened interest in these issues. But it’s still far from certain how it’s going to play out,” said Tittsworth. “There is not to my knowledge a bipartisan amendment.” Having competing amendments doesn’t necessarily make it less likely that any one of them will be included in a final bill, he said.
The Akaka/Menendez amendment would apply language used in the House bill, which would require the SEC to write new rules requiring all financial advisors, including brokers, to adhere to a fiduciary standard when providing investment advice to retail clients. That fiduciary relationship would not apply to institutional clients and would not have to be ongoing.
Consumer protection and state regulatory groups have been pressuring Senator Chris Dodd, who is sponsoring the regulatory reform bill, to support an Akaka-Menendez amendment. On April 23, the Consumer Federation of America, the National Association of Secretaries of State, the North American Securities Administrators Association and AARP sent a joint letter to Christopher Dodd requesting he co-sponsor the Akaka-Menendez amendment.
“The study language, which would delay reform for several years, replaced a stronger provision that would have required brokers and insurance agents to act in the best interests of customers when recommending securities,” says the letter. “As currently written, the legislation requires the SEC to study and then adopt rules to address ‘gaps and overlaps’ in regulatory requirements for brokers and advisers, but it denies the agency the authority it needs to raise the standards that apply to brokers when they give investment advice to match those that apply to investment advisers providing the same service.”
Even SEC Chairman Mary Schapiro is leaning on Dodd to adopt a uniform fiduciary standard. “Unfortunately, the bill does not establish a uniform fiduciary standard of conduct," Schapiro wrote in a March 22 letter to the senator. "It instead calls on the SEC to study the issue, but does not then give the SEC authority to create a fiduciary standard of conduct for all securities professionals at the conclusion of the study. I urge you to reconsider this approach and provide the SEC the authority it needs to apply a fiduciary standard of conduct to financial professionals. Investors deserve no less.”