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Washington Wrap — Democrats say SEC best interest rule is 'too weak'

The Washington Wrap is a weekly look at regulation, news and chatter from the Capitol. Send tips and ideas to polo.rocha@spglobal.com, david.hood@spglobal.com and declan.harty@spglobal.com.

On Capitol Hill

Democrats are pushing Wall Street's top regulator to strengthen a proposal that would require broker/dealers to act in their clients' best interests.

In a March 14 hearing, members of the House Financial Services Committee peppered witnesses with questions about the SEC's proposed Regulation Best Interest. The three-part rule package was introduced in April 2018, a month after an appellate court vacated the U.S. Department of Labor's stricter and narrower Conflict of Interest Rule. The Labor Department's rule would have imposed a legally binding fiduciary duty onto certain advisers working on retirement accounts.

Regulation Best Interest is the latest attempt from Washington to create a new set of guidelines for investment advisers, who critics fear take advantage of their customers by coaxing them into unnecessarily complex or costly products and strategies.

Democratic lawmakers, including Rep. Carolyn Maloney, D-N.Y., expressed concern that Regulation Best Interest is "still far too weak," echoing similar worries that state securities regulators, consumer advocacy groups and other market participants have raised about the potential reforms.

"The SEC's rule says that brokers who provide advice to retail customers have to act in the 'best interest' of their customer — but refuses to define 'best interest,'" said Maloney, the chair of the Investor Protection, Entrepreneurship and Capital Markets Subcommittee, which hosted the hearing.

Republicans said the SEC's proposal needed some refinements, but signaled their support of the regulator's efforts thus far to create a new standard for brokers providing investment advice.

"Let me be clear, the proposed Reg BI is not perfect," said Ranking Member Rep. Bill Huizenga, R-Mich. "[But] the proposed regulation significantly raises the standard of care by formally establishing the customer's best interest as the overarching standard of care."


The full House Financial Services Committee also held a hearing March 13 on ways to overhaul the National Flood Insurance Program, an issue that Congress has struggled to address since 2017.

Bipartisanship was on display during the hearing, which kicked off with top Republicans providing input on a draft bill from Chair Maxine Waters, D-Calif., that would reauthorize the program for five years. The bill also includes several items that Democratic colleagues have backed, such as forgiving the program's accumulated debt and providing income-based premium discounts.

Waters told reporters after the hearing that Democrats were open to negotiating each item on their proposal, including their effort to ensure debt forgiveness.


Sens. John Kennedy, R-La., and Mark Warner, D-Va., hope to ease time restrictions the SEC faces when it seeks out restitution on an investor's behalf.

On March 14, the senators introduced legislation that would provide the SEC with a 10-year window to pursue restitution of ill-gotten gains for investors. Currently, the agency can only seek out restitution within five years of the wrongdoing.

The bill's introduction comes nearly two years after the U.S. Supreme Court ruled that the SEC's disgorgement remedy is subject to a five-year statute of limitations. The court's decision has limited the SEC's ability to pursue wrongfully received profits beyond that window of time. The SEC has since had to give up on pursuing roughly $900 million in disgorgement as a result of the ruling, the agency previously said.

At the SEC

SEC Chairman Jay Clayton has no intention of standing in the way of companies planning to list directly onto public stock exchanges.

In an interview, the regulator's chairman said he does not oppose direct listings, an avenue companies have increasingly expressed interest in using to access the public markets. The model allows companies to detour around the typical processes associated with an initial public offering, including underwriters and a road show.

Spotify Technology SA used the model in 2018 when it became a publicly traded company, and Slack Technologies Inc. is also reportedly planning to use a direct listing later this year when it hits the public markets.

Other news

Federal regulators may need to re-propose their plan from last year to revise how they enforce the Volcker rule, three agency heads said March 11.

The regulators' proposal has come under criticism from banking industry groups, who say their proposed method of judging whether banks are engaging in proprietary trading is more onerous than the current approach.

Revising the current Volcker rule framework is a top priority for regulators, but they may have to do it through an entirely new proposal, the leaders of the SEC, Office of the Comptroller of the Currency and Federal Deposit Insurance Corp. said. The three agencies are working with the Federal Reserve and Commodity Futures Trading Commission on the issue.

Separately, Fed Governor Lael Brainard laid out some of her ideas on how the Fed, OCC and FDIC can revise their current Community Reinvestment Act framework.

Bank branches would remain a critical component of CRA tests under a potential plan regulators are discussing, she said. But they are also considering adding an additional assessment area for larger banks to encourage them to pursue community development activities in areas close to where they operate, she said.

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