With this week's "surprise" presidential election victory of Donald Trump over Hillary Clinton, combined with the success of the Republicans holding both the Senate and the House of Representatives, the question arises as to whether the Republican clean sweep in Washington spells an imminent demise for the Republican-opposed Department of Labor fiduciary rule. What is the likely fate of the fiduciary rule once the change in power occurs next January?
In this week’s #OfficeHours with @MichaelKitces, my Tuesday 1PM EST broadcast via Periscope, I discuss why I actually do not think that the Republican victory is going to lead to an immediate and total repeal of the Department of Labor fiduciary rule.
Because the reality is that while the rule will not be enforced until next April - after President Trump takes office - the regulation itself became official this past April. And the President doesn't have the power to just immediately enact a massive change to an existing regulation. Remember, it took President Obama's Department of Labor nearly 6 years just to get the prior fiduciary rule changed to what it is now becoming! If President Trump tried to halt it immediately, the fiduciary advocates would have their own opportunity to sue the Department of Labor, and would likely be successful!
Of course, the reality is that even if President Trump would have trouble eliminating the rule, he could "defang" it by directing the Department of Labor to only minimally enforce it, akin to the SEC's similar failure to enforce the existing provisions of the Investment Advisers Act of 1940 that already requires brokers who give substantive investment advice to register as fiduciary investment advisers. Which would mean the fiduciary rule is still on the books. But the Department of Labor wouldn't be much of a threat for those who didn't follow it.
On the other hand, the existence of the fiduciary rule's requirement that consumers must retain the right to a class action lawsuit against a financial institution for breaching its fiduciary duty (across a large number of advisors) means the threat of DoL fiduciary enforcement remains, even if the Department of Labor itself isn't funded to do it. Which means perhaps the most likely Republican "fix" to the rule will simply be to pass a law that eliminates the class action provision, which doesn't kill the DoL fiduciary rule but does drastically reduce its threat.
In addition, while President Trump would be limited in just issuing an Executive Order to kill the DoL fiduciary rule, Congress itself could pass a law to end the rule altogether (as opposed to just its class action provision). However, it's not clear how politically feasible this actually is. The Republicans still don't have enough votes to overcome a filibuster in the Senate, and with so many major firms already implementing changes to adjust to the DoL fiduciary rule, some previously anti-fiduciary foes may now become fiduciary advocates to keep the rule (because they believed they're more prepared than their competition to succeed if it sticks around). And with President Trump having already put a lot of other rule changes on his agenda for his first 100 days in office... and the DoL fiduciary rule enforcement beginning just 80 days after the change in power in January... it's entirely possible that by the time Congress is even ready to take the issue up, it will be a moot point because the Department of Labor's fiduciary rule will already be fully implemented and enforced!