In politics, questions are rarely as simple as they appear. As such, it should hardly come as a surprise that one of the more contentious issues in the financial reform debate has assumed the disguise of a seemingly unassuming query: Should broker-dealers be required to act in the best interests of their clients?
For the wide array of retail investors who saw their nest eggs vanish during the recession, the answer is an overwhelming "yes." The same goes for a number of congressmen. "This is not rocket science that we're dealing with here," says Rep. Paul Kanjorski (D-Pa.), who along with Rep. Barney Frank (D-Mass.) has been a key architect of the House of Representatives' proposals. "This is pretty rudimentary stuff."
Not so fast, say a number of concerned financial industry representatives. Currently, the debate is centered around the difference between broker-dealers and registered investment advisors. As their title suggests, RIAs' main duty is to advise investors about securities. Broker-dealers, on the other hand, actually sell the securities. RIAs have a fiduciary duty to their clients, which means that they must act in their clients' best interests. For their part, broker-dealers don't have to sell the best products that are available to their clients. Instead, their responsibility is to sell products that are deemed to be "suitable."
So far, both the Senate and the House have approved financial reform legislation, and representatives from both chambers are currently in the process of reconciling the two bills. The bill passed by the House calls for broker-dealers, in cases where they are giving retail investors personalized advice regarding securities, to be held to the same fiduciary standard that RIAs must adhere to. The Senate bill, however, isn't as direct. Instead of imposing the standard outright, it calls for the Securities and Exchange Commission to study the issue.
Tom Currey, president of the National Association of Insurance and Financial Advisors, supports the Senate's conservative approach. While advocates of the House version say there is little to study, Currey insists that the issue is far from clear. "Our concern is that applying such a subjective standard to broker-dealers … who, unlike registered investment advisers, sell products makes it difficult to identify clearly which product is 'best.' Is best cheapest? Is it best premium relative to the benefit of the product? Is it best return on the investment? Is it the product with the best historic underwriting and service standards? It is a very uncertain standard," he said in a statement.
As members of the House and Senate mull over ways to reconcile their bills, U.S. News spoke with Kanjorski about the broker-dealer issue, as well as about the SEC's lawsuit against Goldman Sachs and about a proposal to allow the SEC to be self-financed. Currently, the SEC collects fees, but the agency isn't allowed to hold onto them. Instead, it relies on Congress for funding. Regulators would prefer to change that arrangement, both to symbolically distance themselves from the political process and to ensure the availability of resources.
Why should Congress impose a fiduciary standard on broker-dealers?
Nothing really has been fundamentally done in the last few years since the crisis of confidence occurred in the marketplace. And we're now in the process of writing the material to rebuild confidence and trust in the market. This issue goes directly to the retail market. Right now, most people, if you ask them, would think that there is a fiduciary relationship or a standard owed to a customer by a broker-dealer. They don't realize that there isn't. … This is a good opportunity to say, "Look … customers should be protected and know that there are no conflicts of interest out there, no adverse positions out there, that people, whether they're wearing the hat of a broker-dealer or whether they're wearing the hat of a financial planner, owe their customer a fiduciary duty.
What about the Senate's proposal to study the issue?
That's a problem. This is not rocket science that we're dealing with here. This is pretty rudimentary stuff. I don't know what kind of a study it would be … I think we have all now considered this. This is a singular time, and I think [acting] would be a lot better than putting it off or delaying it.
If it's so basic, why has the measure been so controversial?
Nobody likes change. … The world changes around you, and at a point you wake up one day and say, "I don't want one more change in life, because if it happens, my head is going to blow apart." That's the way people are: They get used to existing with the way things are. And there's nothing wrong with that, actually. And particularly if you're dealing with fully sophisticated people, you don't even need a fiduciary relationship. We're really talking about retail business here, customers who are not too terribly sophisticated in financial dealings and broker dealers and financial planners who are on a much broader scale and better scale: better schooled, better educated in the areas they're dealing in. There's a decided disadvantage.
So institutional investors can be treated differently?
That's a whole different thing. Those folks, they're used to [all this]. I have a friend who runs a mutual fund in Pittsburgh, and they don't even need rating agencies because their department evaluates these securities better than rating agencies do; they're that sophisticated, they're that advanced. But if you ask the question "do you need rating agencies," yeah, for Mrs. Jones who is trying to buy some bonds.
Does that mean you have less sympathy for the institutional investors who claim to have been misled by Goldman Sachs?
No, but there is a little disappointment on our part. What we've done very often—and you can really see it in securitization—we've allowed a situation to occur where these very competent professionals sort of got together and lined up all the benefits on one side of the transaction. … They proved that you can frustrate the market from really working. The only justification for a free market, and I'm a supporter of a free market, is that you can take government out of the role of regulator because … for every guy working on one side of the transaction, you have an equally competent person working on the other side of the transaction. And they keep each other honest. And that's the way the system is supposed to work.
But if you line everyone up on one side of the transaction and they all make a profit off of it and they don't have to give a damn about the other side of the transaction—and that's what happened with subprime mortgage securitization—you get to the end and it's the last guy that's holding the skunk, if you will. He gets screwed and screws all of his customers, but everyone else made money. And people readily saw that happening, but nobody wanted to break the game. It was a great game, and it lasted for 10 or 15 years, and finally it blew up in all of our faces. It was a frustration of the real free market. We've got to structure this reform bill to try to not allow that to happen again in the future.
How do you feel about the idea of a self-funded SEC?
I'm a very big supporter of the self-funding of the SEC for several reasons. And it has nothing to do with any criticism of the [congressional] appropriations process or the appropriations committee. As a matter of fact, I have no objection to them exercising their role as overseers and if we can construct something to keep them in that role, that's good. There's nothing wrong with more eyes looking at something. But so often with an independent organization like the SEC, they feel compromised even though Congress doesn't want to compromise them. [They feel] that when they have to come up here on a yearly basis and ask for a budget, they can get pushed around or contained. They don't feel free to do what they'd really do if they were running their own operation.
We want to send the message to them and to the general public that we want the best, finest Securities and Exchange Commission that we can have and that we don't want to waste their time. And when you look at the immediate last 10 years, what you find out is that in so many instances, they didn't get sufficient money to buy sophisticated computer equipment, they didn't get the capacity to hire people. And I don't want to cast dispersions on anyone because there are a lot of very competent people at the SEC, but when you're running up against guys that are the highest-paid, highest-priced, and best-educated lawyers, analysts, etc., on Wall Street and you don't necessarily have on your team that same-caliber person, you go into your negotiations or you go into your situation at a decided disadvantage. We've got to make sure that we're aware of the fact that we're dealing here with multi-trillions of dollars of marketplace and we're arguing over hundreds of millions of dollars as to how we can be the best talent in our field.
What does all of this say about the government's ability to effectively police Wall Street?
I see this fight as the final war, if you will, or disagreement, between government and big multinational corporations. And we've got to find a way now that the government, representing the interests of the people, is going to be on an equal status with the multinational corporations that are so powerful now and so pervasive in getting their way because they can move outside of nationalistic boundaries to accomplish things and they can play one nation off against another—"If you won't do it New York for us, we'll go to London." When you get that kind of psychology operating, the multinational corporations are almost in a stronger position than national governments.
How can the U.S. government catch up?
It's very difficult. I think this is our last opportunity. If we don't find a way to contain these organizations that have become too large to fail—and that's why I've been working on that issue—what will happen is they will rule the regulators, they will rule the nations that they participate in, because effectively they will be bigger than we are.