U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

97–711 PDF 2016

PRINCIPLES FOR ENSURING RETIREMENT 

ADVICE SERVES THE BEST INTERESTS OF 

WORKING FAMILIES AND RETIREES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH, 

EMPLOYMENT, LABOR, AND PENSIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, DECEMBER 2, 2015 

Serial No. 114–35 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 

CEWDOCROOM with DISTILLER

(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Todd Rokita, Indiana 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

David Brat, Virginia 

Buddy Carter, Georgia 

Michael D. Bishop, Michigan 

Glenn Grothman, Wisconsin 

Steve Russell, Oklahoma 

Carlos Curbelo, Florida 

Elise Stefanik, New York 

Rick Allen, Georgia 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Ranking Member 

Rube ́n Hinojosa, Texas 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Pocan, Wisconsin 

Mark Takano, California 

Hakeem S. Jeffries, New York 

Katherine M. Clark, Massachusetts 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Juliane Sullivan, Staff Director 

Denise Forte, Minority Staff Director 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS 

DAVID P. ROE, Tennessee, Chairman 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

Buddy Carter, Georgia 

Glenn Grothman, Wisconsin 

Rick Allen, Georgia 

Jared Polis, Colorado, 

Ranking Member 

Joe Courtney, Connecticut 

Mark Pocan, Wisconsin 

Rube ́n Hinojosa, Texas 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Takano, California 

Hakeem S. Jeffries, New York 

CEWDOCROOM with DISTILLER

(III) 

C O N T E N T S 

Page 

Hearing held on December 2, 2015 ........................................................................ 1 

Statement of Members: 

Polis, Hon. Jared, Ranking Member, Subcommittee on Health, Employment, Labor, and Pensions ........................................................................... 4 

Prepared statement of ............................................................................... 6 

Roe, Hon. David P., Chairman, Subcommittee on Health, Employment, 

Labor, and Pensions ..................................................................................... 1 

Prepared statement of ............................................................................... 3 

Statement of Witnesses: 

Campbell, Mr. Bradford P., Esq., Counsel, Drinker Biddle and Realth, 

LLP, Washington, DC ................................................................................... 8 

Prepared statement of ............................................................................... 11 

Doba, Ms. Rachel A., President, DB Engineering, LLC, Indianapolis, IN .. 18 

Prepared statement of ............................................................................... 20 

Mohrman-Gillis, Ms. Marilyn, Managing Director, Public Policy and Communications, Certified Financial Planner Board of Standards, Washington, DC ..................................................................................................... 27 

Prepared statement of ............................................................................... 29 

Gaudreau Jr., Mr. Jules O., CHFC, CIC, President, The Gaudreau Group, 

Inc., Wilbraham, MA .................................................................................... 35 

Prepared statement of ............................................................................... 37 

Additional Submissions: 

Mr. Polis: 

Letter from Financial Planning Coalition, to the Employee Benefits 

Security Administration ........................................................................ 84 

Prepared statement of Mohrman-Gillis, Ms. Marilyn, Esq., Financial 

Planning Coalition before the Employee Benefits Security Administration ..................................................................................................... 125 

Prepared statement of Ferrara, Mr. V. Raymond, CFP, Financial 

Planning Coalition before the Employee Benefits Security Administration ..................................................................................................... 127 

Letter dated September 29, 2015, from Financial Planning Coalition . 129 

Letter dated October 26, 2015, from Financial Planning Coalition ...... 130 

Letter dated October 29, 2015, from Financial Planning Coalition ...... 131 

Letter dated November 16, 2015, from Financial Planning Coalition .. 133 

Letter dated November 16, 2015, from Financial Planning Coalition .. 135 

Dr. Roe: 

Bipartrisan House Members Outline Legislative Principles to Ensure 

Retirement Advisors Protect Clients’ Best Interest ............................ 138 

Prepared statement of American Council of Life Insurers .................... 140 

Investment News: DOL’s fiduciary exemption is not a workable option for advisors ..................................................................................... 143 

Prepared statement of Financial Services Roundtable .......................... 147 

CEWDOCROOM with DISTILLER

CEWDOCROOM with DISTILLER

(1) 

PRINCIPLES FOR ENSURING RETIREMENT 

ADVICE SERVES THE BEST INTERESTS OF 

WORKING FAMILIES AND RETIREES 

Wednesday, December 2, 2015 

U.S. House of Representatives 

Committee on Education and the Workforce 

Subcommittee on Health, Employment, Labor, and Pensions 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 10:00 a.m., in room 

2261, Rayburn House Office Building. Hon. David P. Roe [Chairman of the Subcommittee] presiding. 

Present: Representatives Roe, Wilson of South Carolina, Foxx, 

Walberg, Guthrie, Heck, Messer, Carter, Grothman, Allen, Polis, 

Courtney, Pocan, Hinojosa, Sablan, Wilson of Florida, Bonamici, 

and Takano. 

Also present: Representatives Kline and Scott. 

Staff Present: Andrew Banducci, Workforce Policy Counsel; 

Janelle Belland, Coalitions and Members Services Coordinator; Ed 

Gilroy, Director of Workforce Policy; Jessica Goodman, Legislative 

Assistant; Callie Harman, Legislative Assistant; Tyler Hernandez, 

Press Secretary; Nancy Locke, Chief Clerk; Michelle Neblett, Professional Staff Member; Brian Newell, Communications Director; 

Krisann Pearce, General Counsel; Alissa Strawcutter, Deputy 

Clerk; Juliane Sullivan, Staff Director; Olivia Voslow, Staff Assistant; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; 

Denise Forte, Minority Staff Director; Christine Godinez, Minority 

Staff Assistant; Carolyn Hughes, Minority Senior Labor Policy Advisor; Brian Kennedy, Minority General Counsel; Kevin 

McDermott, Minority Senior Labor Policy Advisor; Amy Peake, Minority Labor Policy Advisor; Saloni Sharma, Minority Press Assistant, Arika Trim, Minority Press Secretary; and Elizabeth Watson, 

Minority Director of Labor Policy. 

Chairman ROE. A quorum being present, the Subcommittee on 

Health, Employment, Labor, and Pensions will come to order. Good 

morning, everyone, and welcome to today’s hearing. 

Retirement security is something many Americans work hard to 

achieve, but doing so can be very challenging. While many individuals understand the need to plan for retirement, they do not necessarily know the best way to do so. 

That is why many workers rely on financial advisors to help 

them build a foundation for a secure retirement, and why too many 

CEWDOCROOM with DISTILLER

2 

others simply retire without the resources they need to remain financially stable. 

Men and women who have worked hard all their lives want to 

enjoy their retirement, spending time with their grandchildren, 

taking up a new hobby, or finally getting through the to-do list 

they did not have the time to tackle before, like my garage. They 

do not want to worry about making ends meet or leaving their 

loved ones with a significant financial burden. 

As policy makers, we should be doing everything we can to ensure workers are able to effectively plan for life after leaving the 

workforce. Unfortunately, we are here today because a proposal 

from the Department of Labor is threatening to make it harder for 

workers to do just that. 

The administration has said this proposed rule, known as the ‘‘fiduciary rule,’’ will require retirement advisors to put the best interests of their clients above their own financial interests. That, of 

course, is an admirable goal and one we agree is worth pursuing. 

Financial advisors should act in their clients’ best interests, and 

Republicans have long said we are open to modernizing current 

rules in a way that provides more protections to those seeking retirement advice. 

However, as witnesses explained at a committee hearing this 

summer, the Department’s rule as proposed will impose on financial advisors a host of costly new mandates and burdensome regulations that will have far reaching consequences for those most in 

need of assistance, and as with most well intended Big Government 

schemes, it is the people who need help who are hurt the most. 

Many low- and middle-income families will lose access to some 

of the most basic retirement advice. These individuals, who already 

have fewer resources to invest, will no longer be able to seek guidance from trusted financial advisors and could be forced to pay exorbitant fees or fend for themselves online. 

Additionally, small business owners will be denied assistance in 

choosing the best investment options for their employees, leaving 

many small businesses unable to offer any retirement plan at all. 

The proposal is so extreme and unworkable that it is drawing serious concerns from both sides of the aisle. A significant number 

of Democratic policy makers in both the House and the Senate 

have written to the Department about the proposed rule, calling its 

anticipated effects ‘‘troubling’’ and urging the Department to ‘‘seek 

a balanced approach.’’ 

This committee sent a letter with a similar request asking for 

the withdrawal of the proposal and encouraging the Department to 

work with Congress on a more responsible approach. 

Now if this all sounds familiar, there is a good reason. We have 

been through it before. Nearly five years ago, the Department pursued a similar regulatory proposal, and similar bipartisan concerns 

were raised. 

The difference is the last time around, the Department listened 

to those concerns, withdrew its proposal, and went back to the 

drawing board to develop a new, albeit similarly flawed, rule. This 

time, the Department seems determined to ignore legitimate bipartisan concerns and force its misguided rule on the American people. 

CEWDOCROOM with DISTILLER

3 

That is why I am working along with a number of my Republican 

and Democrat colleagues on this committee and the Ways and 

Means Committee to develop a legislative solution that will accomplish what the Department of Labor has failed to do. 

Our proposal will strengthen retirement security, but unlike the 

Department’s approach, it will do so without hurting working families and small businesses. 

To guide this effort, we developed a set of important principles 

that our bipartisan solution will reflect, such as protecting access 

to the retirement advice workers, retirees and small business owners need, and ensuring retirement advisors serve their clients’ best 

interests. 

Let me repeat that, their clients’ best interests. We believe that 

financial advisors should look out for their clients’ best interests, 

but we also believe the rules governing financial advice should do 

no harm to those saving for retirement. 

Today’s hearing is an opportunity to further explore these principles, to hear what our witnesses believe a workable best interest 

standard looks like, and to continue to work to introduce a responsible legislative proposal that will help individuals save for their 

retirement. 

I look forward to our discussion and to the work ahead. 

With that, I will now recognize the Ranking Member of the Subcommittee, Congressman Polis, for his opening remarks. 

[The information follows:] 

Prepared Statement of Hon. David P. Roe, Chairman, Subcommittee on 

Health, Employment, Labor, and Pensions 

Retirement security is something many Americans work hard to achieve, but 

doing so can be very challenging. While many individuals understand the need to 

plan for retirement, they don’t necessarily know the best way to do so. That’s why 

many workers rely on financial advisors to help them build a foundation for a secure 

retirement. And why too many others simply retire without the resources they need 

to remain financially stable. 

Men and women who have worked hard all their lives want to enjoy their retirement – spending time with their grandchildren, taking up a new hobby, or finally 

getting through the to-do list they didn’t have the time to tackle before. They don’t 

want to worry about making ends meet or leaving their loved ones with a significant 

financial burden. 

As policymakers, we should be doing everything we can to ensure workers are 

able to effectively plan for life after leaving the workforce. Unfortunately, we’re here 

today because a proposal from the Department of Labor is threatening to make it 

harder for workers to do that. 

The administration has said this proposed rule – known as the ‘‘fiduciary rule’’ 

– will require retirement advisors to put the best interests of their clients above 

their own financial interests. That, of course, is an admirable goal and one we agree 

is worth pursuing. Financial advisors should act in their clients’ best interests, and 

Republicans have long said we are open to modernizing current rules in a way that 

provides more protections to those seeking retirement advice. 

However, as witnesses explained at a committee hearing this summer, the department’s rule – as proposed – will impose on financial advisors a host of costly new 

mandates and burdensome regulations that will have far reaching consequences for 

those most in need of assistance. And as with most well-intended Big Government 

schemes, it’s the people who need help who are hurt the most. 

Many low- and middle-income families will lose access to some of the most basic 

retirement advice. These individuals – who already have fewer resources to invest 

– will no longer be able to seek guidance from trusted financial advisors and could 

be forced to pay exorbitant fees or fend for themselves online. Additionally, small 

business owners will be denied assistance in choosing the best investment options 

for their employees, leaving many small businesses unable to offer any retirement 

plan at all. 

CEWDOCROOM with DISTILLER

4 

The proposal is so extreme and unworkable that it is drawing serious concerns 

from both sides of the aisle. A significant number of Democratic policymakers in 

both the House and the Senate have written to the department about the proposed 

rule, calling its anticipated effects ‘‘troubling’’ and urging the department to ‘‘seek 

a balanced approach.’’ This committee sent a letter with a similar request, asking 

for the withdrawal of the proposal and encouraging the department to work with 

Congress on a more responsible approach. 

Now, if this all sounds familiar, there’s a good reason: We’ve been through it before. Nearly five years ago, the department pursued a similar regulatory proposal, 

and similar bipartisan concerns were raised. The difference is that last time around, 

the department listened to those concerns, withdrew its proposal, and went back to 

the drawing board to develop a new – albeit similarly flawed – rule. This time, the 

department seems determined to ignore legitimate bipartisan concerns and force its 

misguided rule on the American people. 

That’s why I am working – along with a number of my Republican and Democrat 

colleagues on this committee and the Ways and Means Committee – to develop a 

legislative solution that will accomplish what the Department of Labor has failed 

to. Our proposal will strengthen retirement security, but, unlike the department’s 

approach – it will do so without hurting working families and small businesses. 

To guide this effort, we developed a set of important principles that our bipartisan 

solution will reflect, such as protecting access to the retirement advice workers, retirees, and small business owners need and ensuring retirement advisors serve their 

clients’ best interests. Let me repeat that: their clients’ best interests. We believe 

that financial advisors should look out for their clients’ best interest, but we also 

believe the rules governing financial advice should do no harm to those saving for 

retirement. 

Today’s hearing is an opportunity to further explore these principles, to hear what 

our witnesses believe a workable best interest standard looks like, and to continue 

our work to introduce a responsible legislative proposal that will help individuals 

save for their retirement. I look forward to our discussion and to the work ahead. 

With that, I will now recognize the Ranking Member of the subcommittee, Congressman Polis, for his opening remarks. 

Mr. POLIS. Thank you, Mr. Chairman, for yielding, and I want 

to thank our witnesses for providing us their time and expertise 

during this busy holiday season. 

Today we are convened again to discuss a very important rulemaking process at the Department of Labor that would change the 

way financial advisors operate, and potentially the advice that savers receive. 

Specifically, we are discussing the principles that would protect 

savers from conflicted advice and allow good advisors to continue 

to work in their communities on behalf of their clients. 

As we know, the reason we are talking about this issue and why 

it is so important is the retirement savings gap for Americans is 

a staggering $14 trillion, with one in five Americans who are approaching retirement age having zero in their private retirement 

savings. 

This is obviously a problem and it must be addressed in a number of ways. This process around financial advice is just one of 

those aspects to how our nation needs to deal with the retirement 

savings gap. 

The Department of Labor has been engaged in efforts to redefine 

the circumstances under which an individual is acting as a ‘‘fiduciary’’ when providing investment advice and services to retail investors. 

As we all know the history, the Department of Labor retracted 

a first version of this rule several years ago. They released a new 

version of the rule earlier this year, and they have begun getting 

input from a broad spectrum of stakeholders through an extended 

CEWDOCROOM with DISTILLER

5 

comment period. I again want to thank the Department for extending the initial comment period. 

From that first version of the rule to today, I and many of my 

colleagues have been following this issue in detail, because it is so 

important. I have heard from many of my constituents and I have 

engaged with the Department of Labor and stakeholders through 

several letters. 

As I am sure everyone is aware, the Department of Labor recently closed its comment period during the rulemaking process. 

I believe that based on what I have heard, the Department of 

Labor and Secretary Perez have worked very hard to reach out to 

stakeholders, and I am optimistic that they will make the changes 

necessary to create a good rule. However, in order to make sure 

this happens, I think it is important to include expert stakeholders 

at every opportunity. 

I believe that transparency and an ongoing stakeholder process 

are vital to the success of this rule for savers and for financial advisors. That is why I along with about 100 of my Democratic colleagues submitted a letter laying out our remaining concerns with 

the drafted rule. We hope that those are addressed in the final 

rule. 

I recently followed up with a letter signed by 47 Democrats that 

urged Secretary Perez to continue the transparency and outreach 

to Congress and stakeholders through an additional comment period as changes are made to the rule, as long as the timeline remains consistent with being able to finalize these rules under the 

presidency of Barack Obama. 

The enormous amount of feedback and the sheer importance of 

this rule is why I think an additional comment period could be 

helpful, to help inform a better rulemaking process. 

A comment period that is reasonable and constructive would help 

a better rule emerge, and it would give us a detailed look at what 

DOL is planning to make with regard to the changes. We are certainly hopeful that DOL will address the issues that have been 

raised by me and my colleagues, but obviously we will only know 

when the rule emerges. 

In fact, I think as a best practice, all agencies should have the 

flexibility to utilize the rulemaking system to allow for additional 

comment periods. Often times, an additional comment period after 

a second draft of the rule can be more helpful than simply extending the initial comment period, because at least we see where the 

agency is going with regard to their thought process, and it can remove issues from the table and allow stakeholders to focus on remaining issues. 

DOL must take into account the high number of outstanding 

questions and requests for comments that are proposed in the rule. 

To date, there have been multiple letters requesting changes to 

the proposed rule from members of both parties in Congress and 

more than 3,500 public comments. That is a very high number for 

something that sounds as obscure as a fiduciary rule. 

Of course, the amount of public interest is a direct result of the 

economic interest of why it is so important for savers on this issue. 

As was shown by my recent vote against H.R. 1090, the so-called 

Retail Investor Protection Act, which would have effectively killed 

CEWDOCROOM with DISTILLER

6 

any rule from moving forward, me and most of my Democratic colleagues are not opposed to a rule being implemented. In fact, very 

supportive of the right rule being implemented. It needs to be done 

right, address the legitimate concerns of stakeholders, and meet its 

intended goal. 

Helping Americans save for retirement should not be a partisan 

issue. Whether you are a Democrat or Republican, we are all going 

to need to retire someday, and we all believe it is essential for individuals to not receive conflicted advice, but we also want to make 

sure they are still able to receive quality advice. 

I think we agree on the intent and spirit of the principles before 

us, but because they are broad, of course, we are going to have 

questions about the specific legislation, that I understand might 

come out of these principles. 

Legislation must accomplish the goal of a strong, enforceable, 

workable regime. The devil is always in the details, as we are finding both in the rulemaking process and I am sure we would also 

find in the process of drafting a bill. 

Our goal should not be a product that prevents an enforceable 

conflict of interest standard from being implemented but rather 

furthers it. 

I look forward to hearing from our witnesses and discussing the 

various ideas for updating and improving the rule and legislation 

around fiduciary responsibility. 

I hope this hearing will further an open stakeholder process 

which leads to a rule that is in the interest of all Americans. I yield 

back. 

[The information follows:] 

Prepared Statement of Hon. Jared Polis, Ranking Member, Subcommittee 

on Health, Employment, Labor, and Pensions 

I thank the chairman for yielding to me, and I thank all of our witnesses for providing us their time and expertise during this busy holiday season. 

Today we are convened again to discuss an important rulemaking at the Department of Labor that will change the way financial advisors operate, and potentially 

the advice savers receive. Specifically, we are discussing principals that will protect 

savers from conflicted advice and allow good advisors to continue to work in our 

communities. 

As we all know the retirement savings gap for allAmericans is far too high. It is 

a staggering $14 trillion, with one-in-five Americans who are approaching retirement age having zero private retirement savings. There is obviously a problem, and 

it must be addressed in a myriad of ways. Access to good, affordable financial advice 

is one important part of the picture. 

DOL has been engaging in efforts to redefine the circumstances under which an 

individual is acting as a ‘‘fiduciary’’ when providing investment advice and services 

to retail investors for more than five years. 

After the Department of Labor retracted the first version of this rule several years 

ago, they released a new version of the rule in early 2015, and have been getting 

input from a broad spectrum of stakeholders through a long comment period. From 

that first version of the rule to today I have been following this issue in extreme 

detail. I have heard from many of my constituents and have engaged DOL and 

stakeholders through numerous letters 

And as I’m sure everyone is aware, the Department of Labor recently closed its 

comment period during the rulemaking process. 

I believe that DOL and Secretary Perez have worked very hard to reach out to 

all stakeholders and I am optimistic that he will make the changes necessary to create a workable rule. However, in order to ensure this happens the expert stakeholders should be given another look. 

I believe that transparency and an ongoing stakeholder process are absolutely 

vital to the success of this rule. That is why I, along with almost 100 of my DemoCEWDOCROOM with DISTILLER

7 

cratic colleagues, submitted a letter laying out our remaining concerns with the 

drafted rule. I recently followed that up with a letter signed by 47 Democrats, which 

requested Secretary Perez continue his transparency and outreach to Congress 

through an additional comment period and stakeholders as changes are made to the 

rule. 

The enormous amount of feedback and the sheer importance of this rule is why 

I believe an additional comment period, which will not kill the rule, in order to give 

a look at the changes DOL is planning to make to the rule is reasonable and constructive. Nothing is perfect on the first or second shot, and bringing stakeholders 

together for another look can only strengthen the rule. In fact, I believe all agencies 

should have the flexibility to utilize the rulemaking system to allow for additional 

comment periods. I hope this can serve as a model for large and complex rule makings moving forward. 

DOL must take into account the high number of outstanding ‘‘Questions’’ and ‘‘Requests for Comments’’ they proposed in the Rule, as well as the incredible volume 

of feedback the Rule has received. To date, there have been multiple letters requesting changes to the proposed Rule from members of both parties in Congress, as well 

as more than 3,500 public comments, and hundreds of thousands of folks signing 

their names to petitions. DOL must listen to this feedback, continue to work with 

stakeholders and make the rule more streamlined while protecting investors and 

workers. 

As was shown by my recent vote against the partisan H.R. 1090, the so-called Retail Investor Protection Act (which would have effectively killed any rule from moving forward), I am not opposed to a rule being implemented. I simply believe it 

needs to be done right, and the best way for that to happen is to continue the stakeholder process. The near unanimous opposition from my side of the aisle against 

H.R. 1090 shows that while many of us have concerns with the rule, we believe a 

new rule needs to be finished and implemented. 

Helping Americans save for retirement shouldn’t be a partisan issue. Whether 

you’re a Democrat or a Republican, eventually you’re going to need to retire. We all 

believe it is essential for individuals to not receive conflicted advice, but we also 

need to make sure they’re still able to receive advice; period. 

Investors must be able to trust the person advising them about the money they 

need to live after retirement. But on the other hand we must also protect individuals’ and small business’ access to advice. Mistakes in investments cost billions of 

dollars to individuals and the economy. 

I know that everyone involved in this rule, and all the stakeholders who will be 

impacted, agree that financial advisors should use a ‘‘Best-Interest Standard’’ and 

the bi-partisan principals that are the subject of this hearing show this agreement. 

I think we all agree on the intent and the spirit of the principals before us. However, because they are broad, I have questions about the specific legislation that I 

understand will come out the principals. Legislation must accomplish the goal of a 

strong, enforceable, but workable regime. As they always say, the devils are in the 

details. Whether it is a rule completed by DOL, or Congressional action, a final rule 

must work with the majority of advisors who are acting in good faith as well as protect savers. Our goal should not be to prevent an enforceable conflict of interest 

standard from being implemented. 

I look forward to hearing from our witnesses, and discussing the various ideas for 

an updated rule. 

Chairman ROE. I thank the gentleman for yielding. Pursuant to 

Committee Rule 7(c), all subcommittee members will be permitted 

to submit written statements to be included in the permanent 

hearing record, and without objection, the hearing record will remain open for 14 days to allow statements and questions for the 

record, and other extraneous materials referenced during the hearing to be submitted in the official hearing record. 

It is now my pleasure to introduce our distinguished panel of witnesses. First, The Honorable Brad Campbell, counsel at Drinker 

Biddle & Reath LLP. From 2007 to 2009, he served as Assistant 

Secretary of Labor for the Employee Benefits Security Administration. He specializes in employee benefits and ERISA Title I issues, 

including fiduciary conduct and the prohibitive transaction rules. 

Welcome, Mr. Campbell. 

CEWDOCROOM with DISTILLER

8 

Ms. Rachel Doba is founder and president of DB Engineering, 

headquartered in Indianapolis, Indiana. DB Engineering is a civil 

engineering firm that specializes in civil/site, water/wastewater, 

and transportation engineering services. Welcome to Washington. 

Ms. Marilyn Mohrman-Gillis is Managing Director of Public Policy & Communications of the Certified Financial Planner, the CFP, 

Board. The CFP Board fosters professional standards in personal 

financial planning through its setting and enforcement of education, examination, experience, ethics, and other requirements for 

CFP certifications. Welcome. 

Mr. Jules Gaudreau is the president of The Gaudreau Group, 

Inc., an insurance and financial services agency founded in 1921 

and headquartered in Wilbraham, Massachusetts. Mr. Gaudreau 

also serves as president of the National Association of Insurance 

and Financial Advisors. Welcome, Mr. Gaudreau. 

I will ask our witnesses to stand and raise your right hands, 

please. 

[Witnesses sworn.] 

Chairman ROE. Thank you. Let the record reflect that the witnesses answered in the affirmative. You may take your seats. 

Before I recognize you to provide your testimony, let me briefly 

explain our lighting system. You have five minutes to present your 

testimony. When you begin, the light in front of you will turn 

green. When one minute is left, the light will turn yellow. 

When your time has expired, the light will turn red. At that 

point, I will ask you to wrap up your remarks as best as you are 

able. I will be fairly strict about that, so try to wrap up when you 

get to the five minute mark. 

Mr. Campbell, you are recognized for five minutes. 

TESTIMONY OF BRADFORD P. CAMPBELL, ESQ., COUNSEL, 

DRINKER BIDDLE & REATH, LLP, WASHINGTON, D.C. 

Mr. CAMPBELL. Thank you to the chairman and the ranking 

member and the other members of the Committee for the opportunity to testify today regarding the principles that should guide 

legislation, strengthening the retirement advice for ERISA plans, 

plan participants, and IRA owners. 

Before I begin, I would like to indicate that my remarks today 

are my own views, not those of my firm or of any client or my colleagues. I am just here representing myself rather than a client. 

Currently, I am an ERISA attorney in private practice. I focus, 

as the chairman indicated, on ERISA fiduciary issues and prohibited transactions. From 2006 to 2009, I served as the Assistant Secretary of Labor for Employee Benefits, and head of the Employee 

Benefits Security Administration, the agency that is promulgating 

the rule at the Department of Labor that we are discussing. 

The bipartisan principles that the chairman and his colleagues 

have developed I think are a very important step forward in the 

current debate about how to improve retirement savings advice. I 

think they offer common sense guidelines that would form a solid 

foundation for the development of meaningful legislation that protects investors while expanding access to advice. 

I also think though that these bipartisan principles highlight 

some of the very serious policy and technical problems with the DeCEWDOCROOM with DISTILLER

9 

partment of Labor’s flawed regulatory proposal, that I believe if 

promulgated as proposed, would in fact harm the very persons that 

it is intended to protect. 

Unlike the bipartisan principles, I think the DOL proposal would 

actually reduce choices, increase costs, increase frivolous litigation, 

and therefore reduce the availability of advice, particularly for 

small plans and small IRA accounts. 

In fact, I think the DOL proposal violates nearly every one of the 

bipartisan principles that we are discussing today. The first is access to quality advice. The bipartisan principles would protect access to investment advice and education for low and middle income 

workers and retirees, and ensure that small business owners have 

access to the financial advice and products they need. 

This is something that the Labor Department has actually quantified for us, the cost of no advice. In 2011, the Labor Department, 

in promulgating certain provisions of the Pension Protection Act, 

determined that lack of access to advice cost participants and IRA 

owners $100 billion every year due to preventable investment errors, and part of the reason there was lack of access was due to 

the very broad ERISA fiduciary and prohibited transaction rules 

that prevented access to advisors. 

In contrast to the bipartisan principles, rather than mitigating 

the negative effects, unfortunately, the DOL proposal would actually broaden that problem by more broadly applying those same 

ERISA fiduciary standards and prohibited transaction rules, exacerbating the difficulty of getting advice to workers. 

The bipartisan principles would require advisors to act in the 

best interest of their clients. By contrast, the DOL proposal, although it is appropriated to phrase best interest does not create a 

new best interest standard. It instead applies the existing ERISA 

and fiduciary standards more broadly, and the level fee requirements and the effect of these prohibited transaction rules do not 

take into account the actual content of the advice. They can in fact 

actually prevent an advisor from acting in your best interest. 

The DOL proposal would prevent essential activities based on 

structural cost differences between products that do not actually 

have anything to do with the quality advice. 

For example, we can all agree that a rollover for a participant 

is in that participant’s best interest. There could be no dissent on 

that point. Everyone looked at that transaction and said this 

makes sense for that participant; this is in their best interest. 

Because an IRA is a retail product that typically has a higher fee 

than a 401(k), the advisor to that 401(k) would be prohibited from 

doing the rollover, advising the rollover for that participant because they would receive a higher fee. That has nothing to do with 

conflict. It has to do with structural cost differences. The DOL proposal would nonetheless prevent that. 

The best interest contract exemption, which the DOL has proposed to address some of those circumstances, unfortunately does 

not work as it is proposed. It would apply a large number conditions and would allow new class action litigation risk that does not 

exist currently, and that render that exemption, as I said, I think, 

unworkable for many if not most advisors. 

CEWDOCROOM with DISTILLER

10 

The bipartisan principles called for clear, simple, and relevant 

disclosures of compensation, investment fees, and any conflicts. 

By contrast, the big exemption in this part of the proposal has 

disclosures that are anything but clear and simple. In fact, they are 

extremely difficult for anyone to try to parse through, for advisors 

to provide, and for participants to understand. 

The bipartisan principles say the law should never deny people 

the financial information they need to make informed decisions. By 

contrast, the big exemption in the Department’s proposal directly 

prohibits an advisor from discussing investments that are not on 

the Government’s approved list of investable assets, regardless of 

whether such information is in the best interest of the participant. 

Finally, the bipartisan principles call for policies that preserve 

investor choice and consumer access in a way that does not pick 

winners and losers. By contrast, the DOL proposal limits those 

choices and would definitely result in winners and losers, not just 

among financial service providers, but also with plans and participants. 

The DOL proposal would deny small plans and individuals access 

to the same types of advisors and information available to large 

plans. 

In closing, I am very much encouraged that Congress has begun 

to look at this issue, has developed these principles, and I think 

Congress in fact is the proper institution to address these concerns 

and to meld the proper changes into the broader framework of financial regulation rather than one agency with a narrow focus on 

one body of law. 

Thank you very much, and I look forward to your questions. 

[The testimony of Mr. Campbell follows:] 

CEWDOCROOM with DISTILLER

11 

CEWDOCROOM with DISTILLER


Insert offset folio 7 here 97711.007
12 

CEWDOCROOM with DISTILLER


Insert offset folio 8 here 97711.008
13 

CEWDOCROOM with DISTILLER


Insert offset folio 9 here 97711.009
14 

CEWDOCROOM with DISTILLER


Insert offset folio 10 here 97711.010
15 

CEWDOCROOM with DISTILLER


Insert offset folio 11 here 97711.011
16 

CEWDOCROOM with DISTILLER


Insert offset folio 12 here 97711.012
17 

CEWDOCROOM with DISTILLER


Insert offset folio 13 here 97711.013
18 

Chairman ROE. Thank you, Mr. Campbell. Ms. Doba, you are recognized for five minutes. 

TESTIMONY OF RACHEL A. DOBA, PRESIDENT, DB 

ENGINEERING, LLC, INDIANAPOLIS, INDIANA 

Ms. DOBA. Thank you, Chairman Roe, Ranking Member Polis, 

and members of the subcommittee for the opportunity to testify 

today. 

I am Rachel Doba, president of DB Engineering. I am here representing the U.S. Chamber of Commerce, and I also sit on its 

Small Business Council. 

At the outset, I would like to express our strong support for the 

bipartisan principles discussed to date to ensure that retirement 

advice serves the best interests of working families, retirees, and 

small businesses throughout the country. 

I would like to extend a special thank you to Chairman Roe for 

his work on these principles and ongoing commitment to retirement security. 

DB Engineering is a civil engineering firm that I founded in 

2008. I had my first full-time employee in 2010, and set up a 

401(k) plan a year later. I currently have 15 employees, and a 100 

percent plan participation rate. The plan has a discretionary 

match, but beginning 2016, I am moving to a safe harbor plan, 

which guarantees a contribution of 3 percent of employee compensation and will allow me to provide profit sharing contributions. 

Attracting good talent is important for service oriented businesses like mine; one way that we are able to compete is by offering employee benefits, including a retirement savings plan. Retirement security is not just a recruitment tool it is a personal priority. 

In order to start my business in 2008, I cashed out my 401(k) account at my former employer to get the needed startup capital. In 

addition to taking a 10 percent penalty and income tax hit, this 

withdrawal occurred in the midst of the 2008 financial crisis. I 

withdrew my savings at the worst possible time. 

Had I consulted a financial advisor, I likely would have left as 

much of the funds as possible in my 401(k) or rolled over to an 

IRA. That is why the principle stating that public policy should 

never deny individuals the financial information they need to make 

informed decisions is so critical. 

I have worked with my advisor since 2011. He is a critical part 

of my team. I trust him to help me with implementing and maintaining my retirement plan, and my employees trust him to provide 

educational materials that will help them make sound financial decisions. 

I am convinced that without our financial advisor, most of my 

employees would not contribute to the 401(k) plan and would not 

receive the benefit of matching contributions. That is why another 

principle stating public policies must protect access to investment 

advice and education for low- and middle-income workers and retirees is also critical. 

While all of the principles being discussed today are important, 

I want to particularly highlight one of them: small business owners 

should have access to the financial advice and products they need 

CEWDOCROOM with DISTILLER

19 

to establish and maintain retirement plans and help workers plan 

for retirement. 

As a small business owner, I absolutely agree. Limiting options 

reduces competition, which drives up costs for my small business 

and passes on costs to employees and me as participants in the 

plan. 

Turning to the Department of Labor’s proposed rule, the Chamber has submitted a comment letter outlining the many ways the 

rule is unworkable. Today, I would like to highlight three issues 

that will have a particularly negative impact on small business 

plans. 

First, the seller’s carve-out discriminates against small businesses and will decrease access to much needed guidance. 

Under the proposal, there is a carve-out for advisors that are 

selling or marketing materials known as the seller’s carve-out that 

does not apply to small businesses. The DOL seems to believe that 

small business owners, such as me, are not as sophisticated as the 

large businesses and need additional protections. 

I know when I am being sold a product. Otherwise, I would not 

be able to run a successful business. 

Second, the changes to the education carve-out will restrict access to investment education for both small business owners and 

their employees. My employees value the investment education provided to them, specifically providing investment recommendations 

in various asset classes. This allows them to make informed investment decisions. Many of my employees might not invest in the plan 

at all if the company had not provided this benefit. 

By disallowing any party to make the link between asset classes 

and specific investment options, the DOL is forcing plan participants to figure out how to invest their own retirement savings and 

risk making poor decisions, like I did. 

Third, the best interest contract exemption will increase the cost 

of services to small businesses and possibly eliminate access. 

There is a question on whether advisors to small business plans 

are able to use the BIC exemption, but, even assuming they are, 

there are certain to be additional costs associated with these 

changes. As a business owner who allows on outside professionals 

to manage my plan, any additional costs imposed by the regulations will be passed on to me. 

In fact, this directly contradicts the bipartisan principle of not 

choosing winners and losers when small businesses will either not 

be able to use the exemption or will pay more to do so. 

In conclusion, I am very concerned that the DOL proposal will 

not achieve its goal of better protecting workers and retirees, but 

will instead make it harder for small business employers and employees to access financial advice and to increase retirement savings. 

Thank you for the opportunity to testify before you today, and I 

look forward to any questions you may have. 

[The statement of Ms. Doba follows:] 

CEWDOCROOM with DISTILLER

20 

CEWDOCROOM with DISTILLER


Insert offset folio 14 here 97711.014
21 

CEWDOCROOM with DISTILLER


Insert offset folio 15 here 97711.015
22 

CEWDOCROOM with DISTILLER


Insert offset folio 16 here 97711.016
23 

CEWDOCROOM with DISTILLER


Insert offset folio 17 here 97711.017
24 

CEWDOCROOM with DISTILLER


Insert offset folio 18 here 97711.018
25 

CEWDOCROOM with DISTILLER


Insert offset folio 19 here 97711.019
26 

CEWDOCROOM with DISTILLER


Insert offset folio 20 here 97711.020
27 

Chairman ROE. Thank you, Ms. Doba. Ms. Mohrman-Gillis, you 

are recognized for five minutes. 

TESTIMONY OF MARILYN MOHRMAN–GILLIS, MANAGING DIRECTOR, PUBLIC POLICY & COMMUNICATIONS, CERTIFIED 

FINANCIAL PLANNER BOARD OF STANDARDS, WASHINGTON, 

D.C. 

Ms. MOHRMAN–GILLIS. Chairman Roe and Ranking Member 

Polis, members of the Subcommittee, thank you for the opportunity 

to testify here today. 

I am here today on behalf of the Financial Planning Coalition, 

which is comprised of the Certified Financial Planner Board of 

Standards, the Financial Planning Association, and the National 

Association of Personal Financial Advisors. 

We believe that the Coalition brings a unique perspective to the 

table. Our stakeholders and members have committed by virtue of 

their CFP certification or membership codes of conduct to provide 

financial planning services under a fiduciary standard. They provide fiduciary level services under different business models as investment advisors, as broker-dealers, and as insurance producers, 

and across compensation models, including commission and fee 

models. 

We believe that updating the outdated 40-year-old definition of 

‘‘fiduciary’’ under ERISA is essential and a long overdue reform to 

protect America’s retirement investors. That is why we support the 

DOL’s re-proposed rule. 

We also believe that congressional intervention in this administrative rulemaking process at this time is not necessary and would 

only serve to delay or derail the rule. 

For members of Congress who truly want a best interest standard for retirement savers, allowing the DOL to proceed to a final 

rule without intervention is the best way to achieve that goal. 

You have heard much speculation and misinformation about the 

potential impact of the rule. We have a different view based not on 

speculation but on actual experience with the fiduciary standard. 

CFP Board adopted a fiduciary standard in 2007. At that time, 

many firms and industry organizations made arguments similar to 

those being made today about the DOL rule. They asserted that 

the CFP Board’s fiduciary requirement was unworkable with their 

business models, that CFP professionals and their firms would be 

forced to relinquish their certification if required to provide fiduciary services. 

Contrary to these predictions, the sky did not fall, just the opposite. The number of CFP professionals has grown by 30 percent to 

73,000 since we put the fiduciary rule in place. 

Opponents argue that the rule will eliminate the broker-dealer 

business model and force advisors into fee only models that will be 

more expensive for consumers. 

This is not consistent with the rule as written or with our experience implementing a fiduciary standard. Advisors do not need to 

give up commissions. The best interest contract exemption is a 

principle-based business model neutral exemption that allows advisors to continue to charge commissions and still comply with the 

fiduciary standard under ERISA. 

CEWDOCROOM with DISTILLER

28 

To those that say that the BIC exemption requirements are unworkable, we point to our own code of professional conduct, which 

contain requirements that are very similar to the BIC exemption 

requirements. 

CFP professionals today are operating under these BIC exemption like requirements for commission based, not just fee based, 

business models. 

Opponents also argue that advisors who are required to obligate 

themselves to act in the best interest of their clients will be unable 

to serve middle-class clients. Again, our experience and research 

belies this argument. 

Today there are thousands of CFP professionals and FPA and 

NAPFA across the country who provide fiduciary level services to 

every day Americans under commission based business models. 

If our experience is any indication, firms and advisors are more 

likely to adjust their policies and practices than to abandon middleclass clients. 

In our view, the robust and transparent rulemaking process in 

which the DOL has been engaged for the last five years is working 

precisely as intended. The DOL has publicly indicated that it plans 

to make changes to address issues raised by us and other stakeholders. 

Congressional intervention in this final stage of the rulemaking 

process before the DOL has the opportunity to promulgate a final 

rule incorporating all of this public input is unnecessary and would 

serve to delay or derail the rule. 

The legislative principles as proposed by Representatives Roskam and Neal, as well as their articulated goals, are laudable. Legislation to achieve these principles and goals is not necessary. The 

DOL re-proposed rule already embraces these goals and is fully 

consistent with and far exceeds the proposed principles. 

Retirement investors face a perfect storm in today’s financial 

services marketplace with a regulatory structure that rewards advisors to recommend products that cause investors to lose billions 

of dollars. With ever increasing responsibility for their own retirement security, retirement investors more than ever require un-conflicting financial advice that is in their best interests. 

We urge Congress to refrain from legislation and allow the DOL 

to promulgate its long overdue and badly needed rule. Thank you. 

[The statement of Ms. Mohrman-Gillis follows:] 

CEWDOCROOM with DISTILLER

29 

CEWDOCROOM with DISTILLER


Insert offset folio 21 here 97711.021
30 

CEWDOCROOM with DISTILLER


Insert offset folio 22 here 97711.022
31 

CEWDOCROOM with DISTILLER


Insert offset folio 23 here 97711.023
32 

CEWDOCROOM with DISTILLER


Insert offset folio 24 here 97711.024
33 

CEWDOCROOM with DISTILLER


Insert offset folio 25 here 97711.025
34 

CEWDOCROOM with DISTILLER


Insert offset folio 26 here 97711.026
35 

Chairman ROE. Thank you. Mr. Gaudreau, you are recognized for 

five minutes. 

TESTIMONY OF JULES O. GAUDREAU, JR., CHFC, CIC, PRESIDENT, THE GAUDREAU GROUP, INC., WILBRAHAM, MASSACHUSETTS 

Mr. GAUDREAU. Thank you, Chairman Roe, Ranking Member 

Polis, and members of the Subcommittee, and good morning. I am 

Jules Gaudreau, president of NAIFA, the National Association of 

Insurance and Financial Advisors, and owner of The Gaudreau 

Group, a multi-line insurance and financial services firm, founded 

in 1921 by my grandfather, and headquartered in Wilbraham, Massachusetts. 

NAIFA members are in every congressional district—I am sure 

you have all heard from them—and work primarily with families 

and small businesses that would be considered main street people. 

My firm insures over 6,000 families and businesses in 12 states. 

Like most of our NAIFA members, over 80 percent of our clients 

are middle-income Americans with household incomes below 

$100,000. Most of my clients started out as new savers and most 

likely would not have started systematic retirement savings without my encouragement and advice. 

When we engage businesses in my community, we spend many 

hours discussing the importance of secure retirement and the importance of attracting and retaining employees who wish to participate in a retirement plan. We then design the plan, ensuring compliance with qualified plan rules. We educate and enroll their employees, and we assist in a myriad of administrative duties, such 

as preparation of year-end 5500 reports. 

I promise that none of these business owners would have gone 

through this important process if it began with an invoice for our 

services. You see, we only get paid when the job is done and action 

is taken by our clients. The result is a plan available for employees, 

likely with employer matching, and is a step in the right direction 

toward retirement readiness and security. We also source and service thousands of pre- and post-retirement individuals with information and advice on retirement security. 

Our disagreement is not with the enhanced standard of care fiduciary rule, but rather with the details. Almost everybody agrees 

that the DOL rule as proposed is fraught with problems. Over 200 

members of Congress have sent letters expressing their concerns. 

The DOL received hundreds of thousands of letters. FINRA has expressed concerns, and most significantly, even the DOL itself has 

acknowledged there are many problematic provisions. 

The effort to craft a bipartisan legislative alternative to the DOL 

proposal is critically important. The principles upon which the alternative will be based are exactly right: a partisan legislative alternative will protect retirement savers’ investment choices, their 

access to professional advice and education, and their hard earned 

savings. 

Again, NAIFA applauds and thanks you for your leadership on 

this critical issue. 

CEWDOCROOM with DISTILLER

36 

We do not believe that the DOL rule is consistent with the principles described by Representatives Roskam and Neal, and the 

other leaders of this effort, including you, Mr. Chairman. 

For example, the DOL favors fee-only arrangements that will result in less access to education and advice and fewer choices for 

many savers who cannot afford such fee-only arrangements. Advisors in my firm offer and use both fee based models and commission models, depending upon the specific needs and desires of our 

clients. 

We are not opposed to fee-only arrangements, but we strongly believe that preserving consumer choice is critical. We also believe 

that the DOL rule is inconsistent with the principle protecting consumer access to professional advisors. The DOL has stated consumers can take advantage of technology in place of personal advisors. We disagree. 

My father cannot even order groceries online for delivery, and I 

have zero confidence that in the absence of professional advice that 

he could learn about asset allocation, make investment decisions, 

or figure out how much he can withdraw without spending his savings too quickly. 

It has become clear from DOL public statements that they intend 

to rush this rule to meet their objective of having it final and effective before change in the current administration. DOL has stated 

that they do not intend to re-propose the rule or to open a new 

comment period before issuing a final regulation. 

For these reasons, among others, we believe it is time for Congress to act and act now and expeditiously. We do not believe this 

is a partisan issue, and we believe the families and businesses we 

serve are entitled to access to retirement education, access to affordable advice, and seamless implementation of the easily understood rules to assure retirement savers are relying upon advice in 

their best interests. 

We are confident bipartisan legislation can achieve the common 

goal expressed repeatedly in this committee’s earlier hearing and 

articulated by Secretary Perez as DOL’s North Star. That being an 

enforceable best interest standard. 

We are not confident that the DOL can revise their complicated 

rule without further review and input, a process they are rejecting. 

We are grateful to you for having this hearing and for working 

on a sound legislative alternative to DOL’s proposed fiduciary conflict of interest proposal. 

Our written testimony included numerous compelling stories 

about the importance of financial advisors to middle-income Americans. 

Thank you for allowing us to comment today. We look forward 

to your questions. 

[The statement of Mr. Gaudreau follows:] 

CEWDOCROOM with DISTILLER

37 

CEWDOCROOM with DISTILLER


Insert offset folio 27 here 97711.027
38 

CEWDOCROOM with DISTILLER


Insert offset folio 28 here 97711.028
39 

CEWDOCROOM with DISTILLER


Insert offset folio 29 here 97711.029
40 

CEWDOCROOM with DISTILLER


Insert offset folio 30 here 97711.030
41 

CEWDOCROOM with DISTILLER


Insert offset folio 31 here 97711.031
42 

CEWDOCROOM with DISTILLER


Insert offset folio 32 here 97711.032
43 

CEWDOCROOM with DISTILLER


Insert offset folio 33 here 97711.033
44 

CEWDOCROOM with DISTILLER


Insert offset folio 34 here 97711.034
45 

CEWDOCROOM with DISTILLER


Insert offset folio 35 here 97711.035
46 

CEWDOCROOM with DISTILLER


Insert offset folio 36 here 97711.036
47 

CEWDOCROOM with DISTILLER


Insert offset folio 37 here 97711.037
48 

CEWDOCROOM with DISTILLER


Insert offset folio 38 here 97711.038
49 

CEWDOCROOM with DISTILLER


Insert offset folio 39 here 97711.039
50 

CEWDOCROOM with DISTILLER


Insert offset folio 40 here 97711.040
51 

CEWDOCROOM with DISTILLER


Insert offset folio 41 here 97711.041
52 

CEWDOCROOM with DISTILLER


Insert offset folio 42 here 97711.042
53 

CEWDOCROOM with DISTILLER


Insert offset folio 43 here 97711.043
54 

CEWDOCROOM with DISTILLER


Insert offset folio 44 here 97711.044
55 

CEWDOCROOM with DISTILLER


Insert offset folio 45 here 97711.045
56 

CEWDOCROOM with DISTILLER


Insert offset folio 46 here 97711.046
57 

CEWDOCROOM with DISTILLER


Insert offset folio 47 here 97711.047
58 

Chairman ROE. Thank you, Mr. Gaudreau. I will now yield to 

Mr. Wilson from South Carolina for five minutes. 

Mr. WILSON of South Carolina. Thank you, Dr. Roe, and thank 

you for your bipartisan leadership on this issue addressing a bipartisan alternative. 

Mr. Gaudreau, the National Association of Insurance and Financial Advisors, NAIFA, has assisted families and businesses professionally and competently in the midlands of South Carolina since 

1931. Your members are important civic leaders in our state, and 

very much appreciated. People know they can count on them. 

Thank you, you should be really proud of the people you work with. 

Can you tell us what the impact of the proposed fiduciary rule 

will have on your Association’s ability to serve your clients? 

Mr. GAUDREAU. We believe this is an unworkable standard that 

will drive advisors away from the small- and middle-income investor, and thus, deprive Americans in those markets with access to 

qualified financial advice, the very people who need it the most. 

A similar scheme was tried in the United Kingdom, and despite 

the comments of the DOL and others who were in favor of this 

rule, the reality there is that Parliament in the United Kingdom 

is considering what they call a public policy solution to fix the gap 

advice over there, because hundreds of thousands of people in their 

country are suffering from the lack of financial advice that we fear 

this rule would cause in America. 

Mr. WILSON of South Carolina. I was really impressed, Ms. 

Doba, with your experience and your firm. According to the U.S. 

Chamber of Commerce, small business owners through savings and 

incentive matched plans, employee’s IRA plans, and simplified employee pension IRA plans provided $472 billion in retirement savings to over 9 million American households. 

However, the largest gap in coverage for retirement savings is 

with small businesses. These small business owners and employees 

should have a retirement savings plan that works. 

How would this Department of Labor proposed increase problems 

that small business employees face when seeking retirement savings advice? 

Ms. DOBA. I can really only speak from my experience and my 

perspective, but I know when I started my company, cashing out 

my 401(k) and what have you, and I had worked at another firm 

that had a retirement—they did not have a retirement plan because it was just too difficult or they did not want to deal with it, 

so I honestly did not think I would be implementing a 401(k). 

Had this rule been in effect at that time, I can guarantee you 

that I would not have started a 401(k). As a small business owner, 

most people that are looking at starting to provide benefits, they 

are dealing with starting a company. 

They are putting health insurance plans together, just trying to 

make payroll, having added costs put on top of that, you are already in a cash flow situation, so you have a bunch of hurdles already to go through, and as a small business, there is already a 

stigma attached to it, not providing quality benefits to our employees. We are constantly battling that. 

I just had an employee that I hired a week ago, and he almost 

didn’t take the interview because his perception was as a small 

CEWDOCROOM with DISTILLER

59 

business, we could not compete with his large company he was 

moving from, benefit wise. 

Mr. WILSON of South Carolina. Congratulations on your deserved success. I can see your empathy for the people you work 

with, a great team. 

Ms. DOBA. Thank you. 

Mr. WILSON of South Carolina. Secretary Campbell, in your 

opinion, how will this proposal change a fiduciary’s ability to give 

advice to those who need it the most? Will this proposal have a 

greater impact on lower- and middle-income individuals rather 

than higher income? 

Mr. CAMPBELL. Yes, I believe that it will, and I think that is one 

of the real problems with this proposal, that it is going to impose 

additional litigation risks, additional compliance costs, and disrupt 

a lot of the processes that currently are occurring that provide 

services to participants and to IRA owners in a way that is going 

to result in those additional costs, which is going to of necessity 

have to have advisors charge more to be able to stay where they 

are. 

I think another important thing to understand is when we talk 

about a fiduciary standard, ‘‘fiduciary’’ is sort of a catch all word 

that applies to a lot of different standards. What the standard DOL 

is trying to apply here is the ERISA fiduciary standard, which is 

quite different than the securities fiduciary standard that the CFP, 

for example, is embracing. 

It is a much more restrictive standard, particularly when you put 

it with the prohibitive transaction rules, such as the ability of an 

advisor to even assist a participant with a rollover. That is a structural difference in cost, which is perceived as a conflict by the rule, 

and therefore, requires the use of special rules to be able to even 

do that transaction. 

When you go through all that process, there is a lot more litigation risk and a lot of more costs associated with it. 

Mr. WILSON of South Carolina. Thank you for your insight and 

your background at DOL should be very helpful to the persons currently at DOL. Thank you very much. 

Chairman ROE. I thank the gentleman for yielding. Mr. Polis, 

you are recognized. 

Mr. POLIS. Thank you. Ms. Mohrman-Gillis, most financial advisors currently seek to do what is in the best interest of their clients, including those certified by your organization. As is the case 

in all fields, there are a few bad actors. That is the reason we have 

a formal standard in place. 

Now, there has been a good deal of discussion that the financial 

advisors would stop serving clients under the Department of Labor 

rule. As I understand it, the CFP Board and those certified by the 

Board already use a conflict of interest standard. 

My question is can you explain why you believe a strong conflict 

of interest standard is important to savers, and what has been the 

experience of your Board and its advisors with the fiduciary standard, and how are individuals certified by your organization going 

to be impacted if there is a similar rule to the one proposed by 

DOL? 

CEWDOCROOM with DISTILLER

60 

Ms. MOHRMAN–GILLIS. Thank you. I appreciate that question because we have heard a lot of comment about what the impact of 

this rule is going to be on small savers, on the middle class, on 

small businesses. 

We speak not from speculation but we speak with experience of 

putting a fiduciary rule in place, of putting requirements in place 

that are very similar to the BIC like requirements, to essentially 

act in the best interest of the client, have a written contract, provide disclosures of conflicts of interest, and mitigate those conflicts 

of interest. 

Our experience has been that it will not prevent advisors from 

providing services under commission based business models. Our 

advisors, we have CFP professionals, FPA, and NAPFA members 

across the country who are providing services either under commission based business models or for low fees or low assets under 

management, not only to middle class clients but others. 

One example is Mr. Ray Ferrara. He testified at the DOL hearing. He is a CFP professional in Florida, chairman and CEO of 

ProVise Management. He provides advice to small business owners, 

401(k) plans who collectively have 1,800 participants with a balance of $50,000 in their average account. He provides advice on a 

commission basis and on a fee basis. He provides advice that is in 

their best interests. 

He testified at the hearing that he will continue to provide that 

advice under a DOL rule, and he further testified that for those 

who claim they are not able to serve the middle-class clients under 

a fiduciary standard, ProVise and scores of CFP professionals 

across the country stand ready to fill that gap. 

Mr. POLIS. If you can submit that testimony, I can enter it in our 

congressional record as well. I would love to see that. 

One of the issues that many of us have been concerned about is 

the lack of financial literacy. I wanted to give you a chance as well 

as Mr. Campbell a chance to address how you see the rule impacting financial literacy and education, and what could be improved 

to ensure that we do not impede financial literacy and education. 

You each have about 45 seconds. 

Ms. MOHRMAN–GILLIS. Well, first of all, the DOL rule will not 

impede the ability of advisors to provide educational advice—education to their clients. Under the— 

Mr. POLIS. That is to their clients, that is after they have signed 

on, correct? 

Ms. MOHRMAN–GILLIS. No, not after they have signed on. 

Mr. POLIS. Okay. You said ‘‘clients.’’ 

Ms. MOHRMAN–GILLIS. We do not believe that the rule as written 

or the rule as we expect the DOL to modify it will require advisors 

to essentially shove a contract in the face of their clients and require them to sign the contract before they are able to provide 

them with information— 

Mr. POLIS. Thank you. For my last 45 seconds of time, I want 

to give Mr. Campbell a chance to address many of our concerns 

about impacting financial literacy and education in this rule. 

Mr. CAMPBELL. Yes. The rule, while it does still preserve a rule 

for education that is not advice, it does restrict and narrow that 

CEWDOCROOM with DISTILLER

61 

from what the current standard is and in a way that I think is very 

unhelpful. 

For example, if you are providing a participant in a 401(k) plan 

a model asset allocation portfolio that says here is what someone 

like you would consider by asset class, you know, 40 percent in 

large cap, et cetera, the DOL proposal would actually not allow you 

to then connect the dots and say and in your plan, those funds are, 

and that would suddenly become fiduciary advice. 

I think that really undermines the purpose of that education. I 

am hopeful the Department will change that, but as proposed, I 

think it is very much an imposition and restriction on the ability 

to provide useful education. 

Mr. POLIS. Thank you, and I yield back. 

Chairman ROE. I thank the gentleman for yielding. Dr. Foxx, you 

are recognized. 

Ms. FOXX. Thank you, Chairman Roe, for holding this hearing. 

I want to thank the witnesses for being here today. There may not 

be another issue before our committee’s jurisdiction that I have 

heard more about from my constituents than this one. 

It is easy to understand why they are so concerned. Just as in 

the Department’s first effort several years ago, this rule is predicated on a belief that Government knows best and private financial 

advisors will not act in the best interest of their clients. I disagree. 

Why would my constituents have any confidence that a new Government driven regime for financial advice will turn out any better 

than the implementation of ObamaCare or the administration of 

the VA? 

Look at what federal control brought to our education system 

through No Child Left Behind. We are moving this week to fix that 

mistake. It is my hope we will stop this rule before it becomes yet 

another mistake in overreach by the Federal Government. 

Finally, I would like to reiterate my support for the individual 

financial advisors who would be impacted by this rule. I know the 

overwhelming majority of them have always acted in their clients’ 

best interests, and do not need the Department of Labor to tell 

them what to do. If they are bad actors, let’s ensure they face the 

stiffest appropriate penalties. We must allow the rest to continue 

their work, helping Americans save for their life goals. 

My question, Mr. Gaudreau—I am the sponsor of the legislation 

to make clear that employees can transfer qualified money into a 

simple IRA account, believing that employees who participate in retirement plans should have choices and flexibility in moving their 

funds. 

If the DOL rule limits access to professional advisors, what are 

some of the poor choices they might make, including taking taxable 

distributions subject to early withdrawal penalties? 

Mr. GAUDREAU. I think those are two of the biggest problems. 

What we find without the access to appropriate qualified advice, 

people might rely on friends, their neighbor, the chef at their local 

restaurant, the plumber, cousin Billy or somebody else, to get advice on what they should do with that rollover. 

Of course, there is a lot of chatter and noise in the news media, 

a lot of disagreement. If you watch anything on television any SatCEWDOCROOM with DISTILLER

62 

urday morning, you will see experts disagreeing almost entirely on 

different investment things. 

It is very, very important. I think consumers are confused. They 

need somebody they trust, somebody in their community that they 

can count on to have their best interests and give them advice. 

You mentioned two very particular things, which is people taking 

money out of a qualified plan and depending upon the timing and 

the constructive receipt, having to pay both a penalty as well as 

taxes on those funds. Simple financial advice could have recommended them to do otherwise. 

Ms. FOXX. Thank you very much. Mr. Campbell, what are your 

thoughts on the methodology the Department of Labor has used to 

calculate its numbers on the purported benefits of this rule, beyond 

those macro numbers, do you believe there are any benefits of the 

current system that their methodology ignores? 

In other words, could this rule reduce the amount individuals 

were able to save by retirement through lost growth, poor risk allocations, or other factors? 

Mr. CAMPBELL. I think that is an excellent question because it 

goes to one of the key problems, I think, with the proposal. I mentioned in my opening statement the $100 billion per year that the 

Department previously estimated just in 2011, so the same administration, is estimated lost due to lack of access to advice. That 

number somehow has never made its way into this proposal. They 

have never put together what they said in 2011 versus what they 

are saying this year. 

Also, in the academic studies they relied on to come up with the 

$17 billion, there is a range, but $17 to $40 billion worth of conflicts, that looked at a very narrow type of transaction with a particular type of advisor, and did not take into account virtually anything else that goes on in that advice relationship. 

For example, if I am sitting down with my advisor, one of the 

things I am hoping that they are convincing me to do is save more, 

and if I can save one percent more than I am now, that is going 

to be a massive amount of increase in my retirement readiness and 

savings. None of that benefit is calculated in the DOL economic 

analysis. 

Lastly, I would say the cost that they estimate otherwise for compliance is laughable. We are obviously helping many clients at my 

firm start to comply, think about how to comply, look at the rule, 

what would it mean. 

They have already incurred much more in legal fees than DOL 

thinks they would over the entirety of this process. That is just the 

reality of those compliance costs as opposed to DOL’s numbers on 

what they think it would be. 

Ms. FOXX. Thank you very much. I yield back, Mr. Chairman. 

Chairman ROE. I thank the gentlelady for yielding, and now I 

will yield to the Ranking Member, Mr. Scott, for five minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. I thank you for convening 

this hearing. Ms. Mohrman-Gillis, we know that the rule has been 

subject to a very long and deliberate process. The Secretary has 

said he is going to make changes based on the input he has received. What is wrong with waiting until the rule is actually promulgated? 

CEWDOCROOM with DISTILLER

63 

Ms. MOHRMAN–GILLIS. Thank you for that question. Nothing is 

wrong with waiting. In fact, that is what we think should be done. 

The DOL has spent over five years working on this rule with an 

extensive, robust, open comment period. 

The DOL has been very receptive to comments from us and other 

stakeholders and has stated publicly that it plans to refine the rule 

based upon the comments that it has received and make changes 

that will address specifically many of the issues raised by members 

on this subcommittee and others in Congress. 

We believe that it is well past time for the DOL, the agency in 

charge of actually effectuating Congress’ original intent in 1974, to 

provide fiduciary level advice to tax preferred retirement assets, to 

allow the DOL as the expert agency to promulgate a final rule, and 

then take a look at it and see if you think there are issues or problems with the rule. 

Mr. SCOTT. You have suggested in your comments that we are 

talking about retirement funds. This committee does not have jurisdiction over normal transactions, commercial transactions, it is 

the Securities and Exchange Commission, and another committee 

has that. 

We are talking about retirement funds. Should there be different 

protections for retirement funds than there would be for other 

transactions? 

Ms. MOHRMAN–GILLIS. Congress in its wisdom in 1974 set standards and protections for tax preferred retirement funds in ERISA. 

That is what this is all about. The DOL is attempting to update 

a rule to actually effectuate congressional intent. 

Its authority is very different from the authority of the SEC, and 

under a completely different set of statutes that regulate the securities industry. 

The DOL is acting within its authority and is acting to implement Congress’ intent to correct what is now a marketplace—a 

problem with the marketplace. 

Folks are talking about bad actors, and the bottom line is it is 

not the advisors necessarily that are the problem. It is a structural 

problem in the marketplace where we allow, specifically allow compensation incentives that allow advisors to make recommendations 

and incentivize advisors to make recommendations that are not in 

the best interest of the client but rather in the best interest of the 

advisor. That is what needs to be corrected with the DOL rule. 

Mr. SCOTT. Thank you. Mr. Gaudreau, there are some unscrupulous advisors out there who frankly just rip off their clients and 

their business model frankly may not even work if they were not 

able to rip off their clients. 

What kind of products do you think need to be available for recommendation that are not in the best interests of the workers and 

their pension funds? 

Mr. GAUDREAU. We certainly do not believe that the rule should 

pick winners and losers, Congressman. I guess the short answer is 

that there is no right product in every situation for every client, 

and there is no wrong product. 

Annuities are a very important product if implemented in the 

right situation for many, many Americans. Certificates of Deposit 

are. 

CEWDOCROOM with DISTILLER

64 

Mr. SCOTT. The question was what would you recommend that 

is not in the best interests of the workers and their pension funds. 

Mr. GAUDREAU. I am not sure I understand your question. 

Mr. SCOTT. That is what we are talking about. We are talking 

about the responsibility to recognize the best interests of workers 

and their pension funds. Some people would like to recommend 

things that are not in the best interest of the workers. 

The question is what would you want to recommend that is not 

in their best interests? Hopefully, nothing, because you have their 

best interests at heart. 

Mr. GAUDREAU. I cannot think of it. We already believe that we 

do engage in the best interests of our clients. We take an ethics 

pledge on their behalf. We look at every situation— 

Mr. SCOTT. You want to maintain the best interests of your clients? 

Mr. GAUDREAU. That is correct. 

Mr. SCOTT. Good. I yield back. 

Chairman ROE. I thank the gentleman for yielding. Mr. Walberg, 

you are recognized. 

Mr. WALBERG. Thank you, Mr. Chairman, and to the panel. It 

has come to my attention that in 2014 the Assistant Secretary of 

Labor for Employee Benefits Security Administration was quoted 

saying this, ‘‘Today, you cannot get Congress to pass a Mother’s 

Day resolution.’’ 

I do not know if we are that bad. What we have done is we have 

shifted—this is his statement—we have shifted from the way that 

social change and legal change and financial change is accomplished through congressional action to two different avenues for 

making changes, the main one being regulation. 

Mr. Campbell, as a former Assistant Secretary of Labor for the 

Employee Benefit Security Administration, am I wrong to think 

that Congress is responsible for making policy and the Department 

of Labor should return to its proper role as the interpreter of the 

law, not a maker of new law and policy? 

Mr. CAMPBELL. Well, I certainly agree that the Labor Department only has the authority that Congress delegates to it, and I 

think on this issue, absolutely, Congress is the proper venue to resolve it, because we have talked about the different types of regulations, the SEC, the State Insurance Commissioners, all these different avenues of regulation apply simultaneously. 

When the Department of Labor changes its standard, it can conflict with those other standards, as this proposal does with the securities laws. Congress is a much better institution to holistically 

look at these issues. 

If I might actually point out one other thing about the Labor Department’s proposal. I actually believe they are exceeding their authority in several respects. 

Mr. WALBERG. Is that their broader posture today? 

Mr. CAMPBELL. They believe they have the authority to put out 

the proposal they do. I would argue with that. I think they are 

doing things in this proposal they do not have the authority to do. 

For example, Congress affirmatively decided in 1974 when it created ERISA to apply the ERISA fiduciary standard to plans, to employee benefit plans. The idea being I am a participant in the plan, 

CEWDOCROOM with DISTILLER

65 

you are making decisions for me, fiduciary of this plan, therefore, 

you must be held accountable for those because I do not have input 

into it. 

Congress did not apply that standard to IRAs. IRAs do not have 

a fiduciary standard applicable under the law. That was an affirmative determination Congress made, I believe, because I do control 

my IRA. This ERISA fiduciary standard based on protecting me 

under trust law does not apply to a situation where I am actually 

making my own choices. 

DOL is using that lack of fiduciary authority to justify applying 

fiduciary authority that Congress expressly declined to apply. I 

think that is one example of where this authority is being exceeded. 

Mr. WALBERG. Thank you. Mr. Gaudreau, Secretary Perez has 

said in testimony before this committee that so-called—his term— 

‘‘robo advisors’’ could be used by some individuals as a primary 

source of advice instead of face to face interactions with advisors.’’ 

Do you share this view that online tools can replace face to face 

interactions? 

Mr. GAUDREAU. I think for a small segment of the marketplace, 

who are more sophisticated perhaps and may be accustomed to 

making purchases of financial products over the Internet, it might 

work. We believe that the choice to have that sort of an arrangement or to deal with the professional financial advisor, another 

human being, should be available to the American consumer. 

People tend to get information on the Internet. It is usually 

where they start. They usually finish by making their decision 

based upon the financial advice of another human being in a faceto-face relationship based upon rapport and trust. 

Mr. WALBERG. Using that or expanding upon that, going back to 

the stressful market events like the August 2015 stock market sell 

off, what would be a better approach that you would recommend 

to your clients in handling this? 

Mr. GAUDREAU. We help walk our customers home. We hold their 

hands through those turbulent weeks and months when the market 

is going up and down and they are unsure what to do. 

A few years ago, everybody thought they should sell Apple stock. 

Now, everybody thinks they might buy Apple stock. 

The fact is the consumer left unassisted often buys high and sells 

low. By holding their hand through this process, by being there 

with them, understanding who they are, where they live, what they 

do, and what is important to them and their family, we are able 

to appropriately advise them. 

Mr. WALBERG. Especially those, I would assume, that do not necessarily have the income and investment capability of those more 

astute people that can buy and can use different approaches—this 

would block them out. 

Mr. GAUDREAU. Precisely. The problem with America is not that 

there is too much advice. The problem is that there are not enough 

of our fellow Americans saving enough to provide a satisfactory, 

stable, and secure retirement for themselves. We need more people 

advising more Americans. Anything that we do that deters that 

process is a mistake. 

Mr. WALBERG. Thank you. My time has expired. Thank you. 

CEWDOCROOM with DISTILLER

66 

Chairman ROE. I thank the gentleman for yielding. Mr. Pocan, 

you are recognized. 

Mr. POCAN. Sure. Thank you, Mr. Chairman, and thank you to 

our panel. I guess I come at this in a little bit of an unique perspective in that I do not think, like some, this is going to bring financial ruin for the entire population of the planet. At the same time, 

I do not think the proposed rule as presented will accomplish what 

it aims to without having some negative consequences. 

I think, Mr. Gaudreau, you said about the enhanced standard of 

conduct is generally people support it, it is the details we are concerned about. 

Ms. Mohrman-Gillis, you presented at another panel, and you 

were very impressive and I appreciate the comments you had to 

say, specifically about some of the tweaks. I guess that is the first 

question I would like to ask you. 

Some of the technical issues, like timing of signing of contracts 

and the details of disclosure requirements. Just in about 60 seconds, what are some of the recommendations you have for the Department of Labor that they should tweak from what we saw before they present their final rule? 

Ms. MOHRMAN–GILLIS. Thank you. We made quite a number of 

recommendations to the Department of Labor to make tweaks, to 

make the rule more operational across business models, including 

the contract issue, for example. 

We suggested to the Department of Labor that in every single financial services relationship there is some sort of contract that the 

client has to sign, an account opening agreement. At that point in 

time, the client can easily sign the best interest contract exemption 

agreement basically where the advisor obligates themselves to provide advice in the best interest. 

We suggested that any advice that may have been provided prior 

to that time that might have been a recommendation versus education should be covered retroactively by the best interest contract 

exemption. 

We suggested streamlining some of the disclosure requirements, 

some of the reporting requirements. We suggested adjusting the 

time frame in terms of the enforcement obligations under the rule 

to make it easier for financial services firms and advisors to comply, and a range of other things. 

We feel confident based upon what the DOL has said publicly 

that it has taken all of this input very seriously, and is working 

on a final rule that will truly address those issues. 

Mr. POCAN. Thank you. Let’s hope those messages are heard, because I think that is one of the concerns a lot of people have is the 

final rule is going to be the final rule. We want to know that various inputs are heard. 

I want to follow up on Mr. Walberg’s question. I have to admit 

that it stuck in my craw that someone was saying, ‘‘go to this 

website,’’ and I will not say the website they mentioned, but they 

actually suggested a website, and I went to it. I answered eight 

questions about my willingness to lose money. That is all they 

asked. I was a 5.5 out of 10, so I guess I am more of a blackjack 

player than craps or slot machine player. 

CEWDOCROOM with DISTILLER

67 

That is not something that most people are going to be able to 

use, as you said, a very small percent of people. My mother, we got 

her an iPad. She thinks it is a device to play Yahtzee. 

Again, a question on that specifically, because I thought that was 

one of the worst answers the Department gave. That is not an alternative, so what potentially can we offer to this personal advice 

and service question that is out there to make sure that everyone 

still has access to be able to get that personalized advice? 

If I want to retire at 62, if I want to have a second home, those 

are questions that when I did it on the computer, they do not answer, and then I called them up, and they still do not answer because that is not part of their model. You need to have that in 

place. If you could just address that. 

Ms. MOHRMAN–GILLIS. Sure. Certainly, as certified financial 

planners, we believe that consumers and small businesses across 

the country need financial advice. We fundamentally disagree that 

the DOL rule as written and as we expect it is going to be tweaked 

and modified, will constrain that advice, will prevent that advice. 

I think it is really important to continue to understand that the 

DOL rule allows for advisors to provide advice and receive commission compensation. The only thing they have to do is put in place 

policies and procedures to mitigate the conflicts that are inherent 

in commission— 

Mr. POCAN. If I can just reclaim because I have about 20 seconds 

left. I hope they are hearing you, and I hope they are hearing us, 

because my concern is that if these are not addressed and we have 

a final rule, the fact that they offered that website as an answer 

implicitly suggests that is where people will be driven to potentially out of the rule, and to me, that is unacceptable. 

I hope they are listening to you and others as we look at how 

to tweak the rule and make it better, especially for low income and 

moderate income investors. 

Thank you, Mr. Chairman. I yield back. 

Chairman ROE. I thank the gentleman for yielding. Mr. Guthrie, 

you are recognized for five minutes. 

Mr. GUTHRIE. Thank you very much. I hope the comments are 

listened to, reacted to. I just have to be honest. I have been working on this for a while. There are certain things specifically that 

I was able to work with the Secretary and Department of Labor on, 

and they did listen and they did react. I have to say that first before I get into my questions because that was a positive experience 

and I really appreciated that. 

However, there are still concerns moving forward. Dr. Foxx 

talked about hearing a lot from her District, and I have had a lot 

of people come to me that are in the industry. Also, I hear more 

from people about Dodd-Frank and the financial service than any 

other issue going forward, and it gets to you. You do things here 

and you pass them out, and they sound simple, and you can walk 

through it on a piece of paper and it makes sense, but you have 

all these people, particularly in the Second District of Kentucky, 

and small banks, just trying to react, trying to figure out how to 

make this work. It sounds so simple when you are talking about 

it here, but it is so difficult when you have lawyers say well, it 

CEWDOCROOM with DISTILLER

68 

could be interpreted this way so you better protect yourself this 

way, that way, or the other. 

My concern here is not just that we can read it and say here are 

the comments, we can react to it, and this is all going to work. It 

is how it is really implemented. I have heard people say that the 

industry is just going to adapt to it and figure this out. I will tell 

you that is happening in Dodd-Frank, we are losing small banks. 

Mr. Gaudreau, what do you think of that, that comment, the industry is going to adapt to it, we are going to make this all— 

Mr. GAUDREAU. Frankly, anyone who says that could not possibly 

be part of this industry and make such an assertion. Discussion 

around retirement, retirement plans and retirement products, and 

strategies is a core focus for most financial advisors in your districts. 

This will decimate the field for us, drive many out of our profession, make it difficult to attract new advisors, young advisors, particularly in diverse communities, to come into our profession, and 

thus dramatically reduce access for moderate income Americans to 

qualified financial advice, the very people who need it the most. 

The affluent and their advisors who pay fees for service, family 

CFOs and all this stuff, they will adapt fine. They always do. The 

middle-income American will not have access to financial advice, 

and in the long reaches of time, when we look back to those people 

who are left in the shadows, how do we care for them? A government of finite resources, how will we care for them? 

We need to encourage them to take charge of their own retirement security, and it is personal financial advisors that do that. 

Mr. GUTHRIE. Another thing, the proposal as drafted has eight 

months, it will be implemented in eight months. What about that 

time frame? 

Mr. GAUDREAU. It is absolutely unworkable. Instead of adapting, 

what is going to happen is major financial institutions are going to 

restrict their advisors from being able to engage in new client relationships unless those accounts are large enough to essentially 

cover this cascading fiduciary liability that is going to broker-dealers, insurance companies, banks, and other providers of financial 

products. 

They are going to just stop, I think, and say ‘‘let’s just figure out 

the strategic issues here involved so we do not incur all kinds of 

fiduciary liability as institutions ourselves.’’ That means even if we 

wanted to do pro-bono work, we might not be able to do that. 

Mr. GUTHRIE. Ms. Doba, setting up a small business retirement 

plan, could you discuss some of the practice challenges you are facing when you go through setting up a plan for a small business? 

Ms. DOBA. Well, when I went through it— 

Mr. GUTHRIE. How did your advisor help you, I guess is the question I am getting at. 

Ms. DOBA. As I kind of alluded to earlier, when I was starting 

a company and going through all that, and especially as an engineer, we have a lot of regulations. I am a woman-owned firm. I am 

a disadvantaged business enterprise. I have all kinds of certifications and enough requirements that I have to fill out on a daily 

basis. I do not do engineering anymore, by the way, I push papers. 

CEWDOCROOM with DISTILLER

69 

I found that you are so busy dealing with all of that and you are 

stressed out mentally, financially, time wise, that if it were not for 

an advisor, I was just going to push off and probably not do a 

401(k), had I not had a trusted advisor that I could speak to and 

trust that he could field and deal with a lot of my non-responsiveness on matters because I had urgent issues to handle, it would not 

have happened, frankly. 

Now that I am in the position I am in, I am very fortunate that 

I had that advice, and so are my employees because while we are 

a diverse company, most of our employees are millennials. With 

every generation, we need to be saving money. This rule is going 

to discourage some of them, I guarantee that they would have not, 

had there been more hurdles to go through, participated in our 

plan. We may not have had a plan. 

Mr. GUTHRIE. Thanks. Before I get to my last question, I will 

probably get gaveled down. I would just emphasize, I know the 

comment period is going forward, and I know the experience I have 

had with the Department of Labor moving forward does make this 

very workable. 

I am not going to get my question in, but thank you so much, 

and I appreciate it. I yield back. 

Chairman ROE. I thank the gentleman for yielding. Mr. Sablan, 

you are recognized for five minutes. 

Mr. SABLAN. Thank you very much, Mr. Chairman. Thank you 

for holding this hearing. Ms. Gillis, good morning. Consumers right 

now go out and face the marketplace. Here in the 48 states, there 

are many advisors, many individuals who are licensed and authorized to provide advice and to manage money, but where I come 

from, besides the banks, I think there is only one. We have a limited number of individuals who do provide advice or who handle 

money. 

Still, you testified and your written testimony stated that consumers in the marketplace sometimes have difficulty in distinguishing the advisors, those who provide fiduciary advice and those 

who do not. 

Let me just make an example, you come to this committee expecting to testify and to tell the truth. The committee still requires 

you to raise your right hand and make that oath. Is this not what 

the DOL is proposing to do, while we trust you, I trust you as an 

advisor, I still want to verify, you know, some famous president 

made the trust, verify, why are people objecting to this when we 

are requiring an advisor would sign with his signature on a piece 

of paper and say I will provide you with—serve your best interests 

as a consumer. 

Ms. MOHRMAN–GILLIS. I think that is an excellent question. Witness after witness testified before the Department of Labor that 

they believed in the best interest standard, and yet when they were 

asked by Labor officials whether or not they would obligate themselves in a written contract to provide best interest service, witness 

after witness said no. 

It sort of defies credibility, and I keep wondering why opponents 

to this rule are spending millions and millions of dollars with armies of lawyers and public relations specialists— 

Mr. SABLAN. At least some of them, yes. 

CEWDOCROOM with DISTILLER

70 

Ms. MOHRMAN–GILLIS. With commercials, arguing against this, if 

they really do agree with and want to comply with— 

Mr. SABLAN. I do not mean to interrupt, but they are saying they 

will do so but they will not sign the piece of paper? 

Ms. MOHRMAN–GILLIS. Correct. 

Mr. SABLAN. That requires them to do so. 

Ms. MOHRMAN–GILLIS. Correct. 

Mr. SABLAN. I am from the islands, so I do not know too much 

about money. Why will they not put their name on a piece of paper 

that they say they do anyway? 

Ms. MOHRMAN–GILLIS. Well, I think that is the fundamental 

problem here. The Department of Labor basically has a common 

sense rule to update its definition of ‘‘fiduciary’’ to essentially have 

an enforceable obligation to provide advice in the best interest of 

the client, and that is what is at issue here. 

It is being strenuously oppoposed by industry organizations. Our 

experience over eight years of basically overseeing a fiduciary obligation of CFP professionals says that it will not diminish services, 

it can be done, it can be done under the types of requirements that 

are very simple requirements in the Department of Labor rule. 

Mr. SABLAN. To be clear on this confusion, my confusion actually. 

I am probably Billy Joel. I do not know how to handle money. My 

wife does. 

Ms. MOHRMAN–GILLIS. And most consumers do not know. 

Mr. SABLAN. They have a choice between what they call wealth 

managers, I think, in banks. 

Ms. MOHRMAN–GILLIS. Right. 

Mr. SABLAN. Or this one individual who I personally know, I will 

still require him to sign a piece of paper that tells me he serves 

in my best interest, and he is someone I know. 

Ms. MOHRMAN–GILLIS. Consumers today in today’s marketplace 

have no ability to determine whether or not their advisor is required by law to be a fiduciary or not. We have a fragmented regulatory structure that allows people to call themselves ‘‘advisors,’’ 

and one group of advisors is only required to provide advice that 

is suitable and can provide advice essentially that is in their own 

best interest as opposed to the client’s best interest. 

Mr. SABLAN. They are simple. 

Ms. MOHRMAN–GILLIS. And another that is required. What the 

DOL is saying essentially is that for tax preferred retirement savings, we need to really enforce what Congress put in place in 1974, 

which said for these savings, we need to have fiduciary level advice. 

Mr. CAMPBELL. May I reply? 

Chairman ROE. The gentleman’s time has expired. Mr. Carter, 

you are recognized for five minutes. 

Mr. CARTER. Thank you, Mr. Chairman. Mr. Campbell, do you 

want to respond? Go ahead. 

Mr. CAMPBELL. If I may, I think there was some 

mischaracterization of what actually occurred at those hearings, at 

which I also testified. 

Witness after witness was not saying no, we will not sign a paper 

that says we will act in the best interest of our clients. They were 

all prepared to do that. 

CEWDOCROOM with DISTILLER

71 

What they were saying is we will not sign this best interest contract exemption as proposed, which offers unlimited class action liability in states under state contract law, which is an issue no one 

has ever introduced in this space before and has an unknown 

amount of liability and risk associated with it, that will make disclosures that no one can currently make. 

They do not gather the data in a way yet to make disclosures as 

required by that exemption, and cannot do it in eight months. 

There is a big difference between saying yes, we will abide by 

your best interest, and we will sign a document to do that. The debate is: what does the document say, what are the obligations that 

go along with it? 

I think it is very over simplified to suggest that all the Department is doing is saying you should act in your best interest. Quite 

the opposite. The Department is laying down very specific onerous 

difficult to comply with requirements that do not mesh necessarily 

with your best interest. 

Mr. CARTER. Right. Thank you, Mr. Campbell. Ms. Doba, you are 

a small business owner. I am a small business owner, too. In fact, 

five days ago, I am proud to announce, that we started our 28th 

year in business, started that business when I was five-years-old. 

It is amazing. 

Nevertheless, the point I want to make is the relationships between my employees, I have had employees who have been with me 

the whole time, and they are like family to me, very important. I 

want to take care of them. I want to take care of their retirement. 

When they leave my business, when they decide to retire, I want 

them to leave with a nest egg and be able to say I am sure glad 

I worked there, that gave me the cushion, the nest egg, that I needed for my retirement. 

When I set up that retirement account, when I set up that 

401(k), it was simple. Just went and set it up with someone I 

knew, I was associated with, and they took care of it. 

If these new rules were in effect now, would you find that more 

difficult today to set up a plan such as this? 

Ms. DOBA. Absolutely. As I stated before, I probably would not 

have set one up if these rules were in place at the time. It is a family. It really is a family. I have to tell you, I share with my employees about our benefits, what is coming up in policy, changes that 

may affect us as a company, and our employees even have stated 

their concern about this rule. 

I think it is very concerning, like I said. Your first question, 

where you were talking about—I apologize—at the very beginning. 

Mr. CARTER. I just want to know how difficult it is if these rules 

were in effect, and you have answered it. 

Ms. DOBA. Yes. 

Mr. CARTER. To set up this plan. I think this would without 

question deter our small businesses— 

Ms. DOBA. Yes. 

Mr. CARTER. From setting up plans like this that are so essential 

to us. Ms. Mohrman-Gillis, out of all due respect, you say well, if 

you had a contract, that would make all the difference in the world. 

Would it really make a lot of difference in the world? Someone who 

CEWDOCROOM with DISTILLER

72 

wants to be a bad actor is going to be a bad actor. That is going 

to happen. 

I can tell you throughout the 28 years that we have this retirement plan in my business, I have taken risks in it, and I have lost 

some, but I have also gained quite a bit. I understand that. 

I do not see where signing a contract is going to make that big 

of a difference. In fact, I do not see where it is going to make any 

difference at all except to deter people, deter businesses from wanting to start these programs, so I beg to differ with you on that. 

Ms. MOHRMAN–GILLIS. If I might respond. 

Mr. CARTER. You may. 

Ms. MOHRMAN–GILLIS. I think signing a contract is really to ensure that financial services firms who say they agree with the best 

interest standard actually put in place policies and procedures that 

stand behind that best interest standard. 

Right now, we have a structure that allows firms to create compensation incentives for their advisors that basically prompt advisors to sell products or to provide services that are not in the best 

interest of the client but rather that are in the best interest of the 

advisors. So, it is more of a way to make sure that obligation— 

Mr. CARTER. I understand. My time is running out so I want to 

be quick. Mr. Gaudreau, you sell retirement plans to small businesses. What do you think? 

Mr. GAUDREAU. If it was just a piece of paper saying we will 

work in the best interest of our clients, we would not even be here 

today. It is the details. This imposes a very, very large rubric of 

additional regulation that will be very costly, time consuming, resource intensive for advisors, and it is going to make it impossible 

for them to deal with small businesses and small and middle income investors. 

Mr. CARTER. Do you think for small businesses, it is going to 

deter them from offering these programs? 

Mr. GAUDREAU. Absolutely, to be the catalyst for the beginning— 

Mr. CARTER. Thank you, Mr. Chairman. 

Chairman ROE. Ms. Bonamici, you are recognized for five minutes. 

Ms. BONAMICI. Thank you very much, Mr. Chairman. First, I 

want to thank you all of you for being here today. 

I want to follow up on Mr. Scott’s question. There has been a lot 

of discussion about this rule in the subcommittee today and really 

over the past several months. 

As we know, there was a rule that was proposed in April, numerous requests came in to extend the comment period. That was 

done, and then after the extended comment period, there were four 

days of public hearings with an additional comment period. 

And then a few months ago Secretary Perez testified before our 

committee, along with a panel from the industry. Secretary Perez 

expressed his openness to addressing the concerns that were 

raised. In fact, Mr. Guthrie acknowledged that the Department of 

Labor has been receptive about input. I am a little bit concerned 

because most of the testimony today sounds like it is based on the 

rule that was proposed in April, which I do not think anybody is 

saying will be the final rule. 

CEWDOCROOM with DISTILLER

73 

I really want to get that out in the front. This is a critical issue. 

It reminds me I have a consumer protection background. I used to 

do consumer protection work at the Federal Trade Commission. It 

reminds me of some of the issues that I have been through over 

the years, for example, in the mortgage industry, when consumers 

would trust their mortgage broker. There is a disparity of knowledge and bargaining power, and they would trust they were getting 

the best advice possible. As we know, that did not happen in that 

industry. 

I have met with families and individuals across Oregon, the state 

I am honored to represent, a district there. People are struggling 

to get ahead. Retirement security is a big issue. I know the sacrifice that is involved in every dollar they set aside to contribute 

to their future retirement. 

My parents are in their late 80s. I am going through this personally. 

The retirement landscape has dramatically changed in the last 

40 years. When the initial fiduciary rule was implemented, a majority of retirement assets were in defined benefit plans, employer 

based 401(k)s did not exist, and IRAs were just created. We are 

really in a different world now. 

Ms. Mohrman-Gillis, now that consumers have more responsibility than ever, and it seems like less education about personal finances, and I have been a long-time advocate for more personal financial education, it makes sense providing products that are in 

the best interest should always be a top priority. 

In a hearing this committee held on this rule last summer, all 

of the panelists agreed that consumers should receive advice that 

is in their best interest. 

Here is the question I ask the industry panel: ‘‘Just to be clear, 

does everyone agree that the best interest standard means a best 

interest fiduciary standard?’’ One industry person said yes, and the 

others nodded affirmatively, and bad me did not get them to answer orally. They all nodded affirmatively. 

Can you please speak about why there might be opposition when 

it seems like the industry agrees they should be doing this, they 

should be acting in the best interest fiduciary standard. 

Can you address that issue and why do you think there is so 

much opposition, and talk a little bit about what you are expecting 

to see later on when the final rule is actually proposed. There is 

a lot of speculation going on here today. 

Ms. MOHRMAN–GILLIS. There is a lot of speculation. I think we 

come to the table with experience of working under a fiduciary 

standard that is very similar to the BIC exemption requirements 

that are in the proposed DOL rule. 

We have full confidence that based on everything that DOL has 

said, it has taken all the input and is going to come out with a 

more streamlined rule, one that is going to be more applicable 

across business models. 

In terms of the best interest standard, that is an excellent question because I do think it means different things to different people. The principles that were discussed today and are a part of this 

hearing really fail to meet the true best interest standard in at 

least two ways. 

CEWDOCROOM with DISTILLER

74 

Number one, the best interest standard does not include the component that the best interest of the customer without regard to the 

financial or other interest of the advisor. That is not included in 

the principles. Also, the principles talk about disclosure, disclosure 

alone is not a best interest standard. You need to disclose conflicts 

of interest but you also need to either eliminate them or manage 

them in a way to mitigate the conflicts of interest. 

Those two components are part of the Department of Labor rule, 

part of our code of professional conduct, part of what we have been 

doing for the past eight years, and I can tell you based on our experience that it is workable and that as you made the point—— 

Ms. BONAMICI. I do not mean to cut you off. My time is about 

to expire. I just want to make this point, which is the same point 

I made in the hearing earlier this summer. I just came from the 

Science Committee, which is why I was not here for your testimony, but I did read your testimony. 

When industry agrees and we all have the same goal, this is not 

rocket science, we should be able to work this out, and I really get 

the sense that the Secretary is listening, the Department of Labor 

is listening to the concerns that have been raised, we should be 

able to get this worked out in a way that as you said, Ms. 

Mohrman-Gillis, what has worked in your industry, it should be 

able to be done, and I have confidence it will. 

Thank you, and I yield back the balance. 

Chairman ROE. Thank the gentlelady for yielding. Mr. Allen, you 

are next, five minutes. 

Mr. ALLEN. Thank you, Mr. Chairman, and thank you for this 

hearing. Thank you for testifying. 

This is obviously an important hearing because we have a huge 

disconnect that is obvious here between Government and private 

industry, and how you deal with certain issues. 

I am from a small business community, so I think I should probably disclose that. I did start, in our company, a 401(k) plan and 

encouraged our employees to participate. I am proud to say our 

company has been able to maximize its contribution to that plan 

for 42 years, except for one year. 

I will tell you after participating in these hearings, I did give 

some investment advice to my employees back in 2008, which I 

wonder if, Ms. Doba, you might comment, do you ever have your 

folks come in and ask you maybe what we should do. 

Our folks basically said do we stay in or get out, because the 

market dropped substantially. Of course, I got the best investment 

advice that I knew to get, and I said they all say it is going to come 

back, I think we need to hang in there and see what happens. 

I wonder what my liability would be as a small business owner 

just having conversations with our folks. Every year, things had 

gone very well and then all of a sudden, they are losing huge 

amounts of money, and they are very concerned about it. That will 

tell you a little bit about the risk that you have as far as being a 

financial advisor. 

What I see here, and Secretary Campbell, the one thing that I 

do not quite understand is there is this disconnect. In your opinion, 

has the Secretary of Labor consulted the investment industry about 

this problem and said how do we solve this the right way? 

CEWDOCROOM with DISTILLER

75 

Mr. CAMPBELL. Well, I am not sure exactly how much he reached 

out to them versus them coming to him. In any event, there have 

certainly been a large number of discussions and there has been a 

comment period. 

The problem we have is that says nothing about what changes 

DOL will actually adopt, whether it actually agrees with the concerns that the industry has laid out, and what the final rule might 

look like. 

We had a comment period, and it was extended, and we had 

some public hearings. There were lots of comments made, but 

whether the comment period is 90 days or 140 days, it is one comment period on this same thing. We have no idea how DOL is going 

to resolve at least 40 or 50 major issues, and we have not gotten 

into even half of those today. 

The scope of this rule that the Department has proposed is so far 

beyond anything this portion of the Labor Department has proposed in the past, that it really is an unimaginably difficult task 

for them to go through the process, hear those comments, come out 

with a rule, and do it on the time frame they are looking at, which 

is essentially an one year time frame, to go from proposal to final. 

Mr. ALLEN. You have worked in the Government sector and now 

you are an attorney? 

Mr. CAMPBELL. Yes, sir. 

Mr. ALLEN. You have seen both sides of it. Why do we hear from 

you and then we hear from Ms. Mohrman-Gillis about well, this is 

no big deal, this is just something the industry is going to adapt 

to, and then we are hearing from the professionals that my goodness, this could turn the whole thing upside down, I mean what is 

going on here? 

Mr. CAMPBELL. I think it is a couple of things. One, you have the 

DOL proposal out there, so folks who want to see change in this 

area naturally gravitate towards the proposal despite its warts. 

Those of us who are looking at how we want to actually comply 

in the real world with this, and this was a discussion I had with 

the Department when I testified at the administrative hearings, 

their intentions, their ideas, their themes, are one thing, but we 

have to actually comply with the letter of the law, with the regulation as it is written. As it was written in the proposal, we cannot 

figure out how to comply with it. It has too many technical problems. 

I think part of the disconnect is Ms. Mohrman-Gillis has been 

saying we have been able to adhere to a fiduciary standard, why 

not the rest of you, my point is what DOL proposed is not the same 

fiduciary standard you adhere to. It is much beyond that with 

many other problems, and how those technical issues are resolved 

is really the crux of this, the details matter. 

Mr. ALLEN. That is what we are hearing. Ms. Doba, when you 

picked your investment advisor, did you just pick him out of the 

Yellow Pages and call him up and say hey, can you help me with 

my 401(k) plan, or did you do a little checking on him as far as 

experience and success as far as dealing with those types of issues? 

Ms. DOBA. I did checking on him, but he is also, like many small 

businesses, a family friend. When I have asked him advice, he is 

very cautious about what advice he will give. He will help guide 

CEWDOCROOM with DISTILLER

76 

me in me determining my risk assessments, but will not tell me 

you need to be in this particular fund. He will be like here is what 

is available to you out there. 

I have asked him about should I be in a ROTH or a traditional 

401(k). He will not give me that answer. He is like it is up to you, 

let’s assess your risk. 

Mr. ALLEN. He may not— 

Chairman ROE. The gentleman’s time has expired. 

Mr. ALLEN. I yield back. 

Chairman ROE. Mr. Messer, you are recognized for five minutes. 

Mr. MESSER. Thank you, Mr. Chairman. You know, throughout 

this debate, I made the point that in life and in public policy, we 

are not only accountable for our intentions, we are also accountable 

for your results. 

In this debate, we all want to see investors get good, sound advice. The real debate here is about what will the consequences, the 

results of these decisions be, and if we bring forward policies that 

actually end up hurting the very people that we are saying we are 

trying to protect, that does not make sense for anybody. 

Ms. Doba, I appreciate having a good common sense Hoosier 

here, and appreciate your testimony already about what you believe the results of the fiduciary rule as put forward would be for 

your business if it did not change. 

I thought one of the strong insights of your testimony was the 

fact that as a small business owner, you are a consumer every day. 

Ms. DOBA. Yes. 

Mr. MESSER. That you have to discern between selling and advice 

in all kinds of areas, including investment advice. Could you just 

expand a little bit upon why you believe that some of the fiduciary 

rule exceptions that would apply to businesses, apply to larger 

businesses ought to apply to smaller businesses as well? 

Ms. DOBA. Very good question. That is where one of my big crux 

is with this, why is a small business being the one that is affected 

by this so severely. I actually take exception to the fact that it is 

assuming that as a small business, I am not as sophisticated as 

large businesses, when in fact, I feel like a small business has a 

much better relationship with its employees. I am much impacted 

by how well they are benefitting, their livelihood, their family life 

is going. There is not that cushion as much as a large business has. 

I think we can all recognize the fact that large businesses have 

not always been successful themselves either, if you watch the 

news. 

As a small business, I just am really struggling, and I still have 

not been able to get a straightforward answer as to why small businesses are being so targeted and affected by this. 

Mr. MESSER. Why do you need to be protected from yourself? I 

appreciate your testimony. 

Ms. Mohrman-Gillis, let me ask you a slightly different question. 

You represent a broad cross section of CFPs, right? Financial planners. I just wanted to ask you, you mentioned you believe industry 

would adapt. Do the folks you represent have—what are their account minimums for— 

Ms. MOHRMAN–GILLIS. CFP professionals that serve clients all 

across the board. Many serve very small and middle class clients. 

CEWDOCROOM with DISTILLER

77 

Mr. MESSER. What would be the minimum? 

Ms. MOHRMAN–GILLIS. We have thousands of CFP professionals 

across the country who have either no or very low minimum assets 

under management—— 

Mr. MESSER. Let me ask you, do you believe—— 

Ms. MOHRMAN–GILLIS. Or provide commission based services. 

Mr. MESSER. Thank you. Do you believe under this rule that 

some of their account minimums might go up if the fiduciary rule 

is put forward? 

Ms. MOHRMAN–GILLIS. We believe that under this rule, not only 

believe, but we know based upon our experience with CFP professionals who are already operating under BIC like requirements, 

that they are providing services on a commission basis—— 

Mr. MESSER. Do you believe—I am asking you a specific question—that their account minimums might go up under this rule? 

That some of the folks you represent might raise the account minimum of who they are willing to serve? 

Ms. MOHRMAN–GILLIS. We have Ray Ferrara who testified before 

the DOL. He is going to continue—— 

Mr. MESSER. I take that to be no. It is a very simple question. 

Do you think their account minimums will go up or not? 

Ms. MOHRMAN–GILLIS. He basically said he is not—if he has increased costs to put in place any of the requirements for the DOL 

rule, he does not intend to pass those along to his clients. The answer is no, not necessarily, that—— 

Mr. MESSER. Thank you. Reclaiming my time, Mr. Gaudreau, 

what do you think? Will account minimums go up again, essentially the clientele that individuals are able to serve will shift upward under this rule? 

Mr. GAUDREAU. Absolutely. 

Mr. MESSER. Could you in your answer expand on where that 

has already happened in the real world? 

Mr. GAUDREAU. It is already happening in the real world because 

right now broker-dealers, insurance companies, banks, and a variety of other financial institutions, sort of manufacturers of products, are already considering their own cascading fiduciary liability, 

and the cost this will pass along to them, the liability passed along 

to them. That is forcing them to say you know, small accounts, it 

is just not worth the institutional risk that we will have. It is the 

same thing for their advisors. 

The fact is the typical financial planner who is fee for service will 

charge $1,000 to $2,500 before they will talk to somebody period. 

The regular middle class American is not going to write out a check 

to start talking about their finances. 

We are a catalyst typically for businesses like Ms. Doba’s to buy 

financial products as well as pension plans and benefits for their 

businesses. 

If you provide us a way to make it possible to do so—— 

Mr. MESSER. In reclaiming my time—— 

Chairman ROE. The gentleman’s time has expired. 

Mr. MESSER. I would just make the point—we do not have to 

imagine that, we can look to England and see that it has happened 

there. 

CEWDOCROOM with DISTILLER

78 

Chairman ROE. I thank the gentleman for yielding. Mr. 

Grothman, you are recognized for five minutes. 

Mr. GROTHMAN. Okay. Mr. Campbell, just give me background on 

this. Did the Small Business Administration analyze the rule and 

provide comments to the Department as to the effect on small business? 

Mr. CAMPBELL. It did, actually. The Small Business Administration submitted—the Office of the Small Business Advocacy at the 

SBA submitted a comment letter on the formal process to the Department of Labor, which is relatively unusual, actually, for federal 

agencies to issue formal comment letters to one another. 

They criticized the way the Department had taken into account 

the effect on small businesses in the economic analysis, and also 

provided the results of its own focus groups talking to advisors and 

small business owners about what they expected this would result 

in, and the results of that is they expected their prices to go up and 

their access to investment advice to go down. 

Mr. GROTHMAN. Okay, but apparently ignored so far. 

Mr. CAMPBELL. Again, that is part of the comment process. We 

do not know yet how the Department is going to respond. We have 

no more bites at the apple the way it currently sits. DOL will come 

out with a final rule which we will see for the first time and have 

to live with the first time we see it. 

Mr. GROTHMAN. Okay. A few months ago, Secretary Perez was 

before this subcommittee, and he expressed concern about so-called 

‘‘hidden fees’’ as the reason for the proposed rule. Could you describe what he meant by those hidden fees? Can you take a shot? 

Mr. CAMPBELL. I am not entirely sure what he meant by those. 

With respect to the 401(k) plans, the ERISA plans, there is already 

very clear fee disclosure required by DOL regulations that we actually initiated while I was running the agency, disclosures from 

service providers to plans and disclosures from plans to participants. 

There are also, of course, a variety of disclosures required by 

other laws that are applicable in the IRA space as well, where you 

have securities law, insurance laws, a variety of those disclosures. 

I do not think the problem here is lack of disclosure. In fact, I 

think most people are probably throwing away a lot of disclosures 

they are getting because there is too much to even begin to read. 

Mr. GROTHMAN. Okay. I will give you one more question, for Ms. 

Doba. One more time, in this world, there are kind of different 

rules for the small businesses and their employees versus a large 

business. Can you just one more time kind of wrap things up by 

summarizing what the effect of the difference between big business 

and small business will have on small business? 

Ms. DOBA. Sure, absolutely, I would be happy to. Small businesses, like I said earlier, we are already perceived as having the 

inability to provide great benefits to our employees. We have that 

perception. 

A lot of times we have higher costs, we have more restrictions. 

Adding more potential fees coming our way to not only ourselves 

but our employees affects us on hiring. In engineering, we already 

have STEM issues on hiring. That has nothing to do with this particular subject, but it is just one other hurdle that we have to go 

CEWDOCROOM with DISTILLER

79 

through with fees that will affect not only myself but our employees, and as a plan participant myself. 

Mr. GROTHMAN. Okay. Thanks much. 

Chairman ROE. Mr. Hinojosa, you are recognized for five minutes. 

Mr. HINOJOSA. Thank you, Chairman Roe, and Ranking Member 

Polis, for holding this important hearing, and I also want to thank 

our panelists for testifying today. I apologize that I came in apparently late, but I was at the Financial Services Committee, and that 

went long. 

I want to continue the line of questioning that has occurred already. As we continue to debate the Department of Labor’s fiduciary rule, it is important to note that the Department’s expected 

fiduciary rule is necessary, long overdue, and will help millions of 

Americans. 

We must ensure that the principles regarding the DOL’s proposed fiduciary rule strike a balance in protecting the individuals 

from misleading or possibly harmful advice while also promoting 

robust access to information and personal assistance regarding retirement investments. 

My first question is directed to Ms. Mohrman-Gillis. As you point 

out in your testimony, the retirement landscape has changed in the 

past 40 years. It has now more self-directed, and 401(k)s are the 

new normal. If consumers have more responsibility than ever before for their own retirement, should their best interest always be 

put first as required by the Department of Labor by their rule? 

This seems to make sense to me. Can you please speak to that 

issue? 

Ms. MOHRMAN–GILLIS. Sure, and the answer is absolutely, yes. 

I would also like to say advisors do not have to—consumers do not 

have to pay fees in order to get advice under the rule. Advisors can 

still provide commission based advice, they just have to do it in the 

best interest of the client. 

We have heard about the flood gate of litigation. That is not our 

experience as CFP professionals who have been providing fiduciary 

level advice over the last eight years, nor is it the experience for 

the advisors who are providing fiduciary level advice. In fact, research shows that for consumers who receive fiduciary level advice, 

there is less likely there is going to be litigation. 

A number of folks have mentioned the U.K. situation. That is apples to oranges to what the DOL rule is. The U.K. banned commissions and put in place competency standards for their advisors, and 

they are still having a favorable outcome to that. 

The DOL rule does not ban commissions and does not put in 

place competency standards for advisors. 

Absolutely, to your question, the retirement landscape has 

changed dramatically, and now more than ever consumers need a 

true fiduciary standard of care, particularly for tax preferred retirement assets. 

Mr. HINOJOSA. Let me ask you a second question. I want to ask 

you about access to advice, because this issue is particularly important to me. I remember what happened in January of 2008 when 

we went into a deep financial crisis, and how the value of many 

of the employees’ retirement funds took a huge drop. 

CEWDOCROOM with DISTILLER

80 

Ensuring that small savers have access to un-conflicted investment advice is of paramount importance to me. Can you tell me 

how a fiduciary duty can increase access to retirement investment 

advice, and can you tell me the benefits from it? 

Ms. MOHRMAN–GILLIS. So, a fiduciary duty as you said will increase access to un-conflicted investment advice, which is critically 

important particularly for our small savers. They need it more than 

anything. 

Small savers, the most important decision they generally make 

is whether to roll over a 401(k) into an IRA. They have responsibility for that. The rollover market in today’s marketplace is a $300 

billion a year market. It defies credibility to think that firms and 

advisors will walk away from a $300 billion a year rollover market 

just because they are obligated to provide advice in the best interest of the retirement saver. 

Mr. HINOJOSA. I did not realize that it was so large, $300 billion 

a year. What advice would you give us in Congress to be able to 

find some workable compromise so that we can be fair to employers? 

Chairman ROE. Hang on to that thought. The gentleman’s time 

has expired. I now yield myself five minutes. 

I have listened to this testimony now for hours, and I always go 

back to my medical background, what is the chief complaint. What 

are we trying to fix. Apparently, what we are trying to fix is a 

problem, we roll this money over from a 401(k) to an IRA, people 

are getting conflicting advice, and it is costing us all this money. 

I looked at that formula that was used to calculate this $17 billion. I can make that number any number that you want. It was 

not a basis, in fact. It was a 1 percent yield more in people who 

did not get this advice versus who did. The actual number is 0.16 

percent. It did not look into the cost of that either. The number $17 

billion is now going to become the Ten Commandments. It is not. 

It is not a real number. 

I also want to say that Bernie Madoff was a fiduciary also, and 

a crook is a crook. If you have someone who is not looking out for 

the best interest, whether it is a doctor, a lawyer, or a financial advisor—Ms. Doba, you paralleled very much what we did in our 

practice. We started with four doctors and 12 employees. We started with a pension plan with a person we knew to come advise us 

how to do that. 

We have employees that have been with us nearly 40 years now 

who have many, many six figures in their retirement plan because 

of what we had done. We have gotten big enough now we can have 

a fiduciary and do have a fiduciary. We are large enough to absorb 

that cost, and certainly in managed plans. 

Let me give you a little number here and see if these people are 

going to jump forward with all these regulations. Let me just get 

a little of this off my chest. 

When we talk about rules and regulations, I have dealt with 

them for 40 years practicing medicine. The Affordable Care Act 

now has 20,000 pages of rules. We spend more money in medical 

administration now than we do on cancer and heart disease treatment in this country. That is how expensive these rules are. 

CEWDOCROOM with DISTILLER

81 

When it is unknown, as the Secretary said, we do not know what 

the costs are. I guarantee you that your client that said he was not 

going to raise any of his fees is going to raise his fees or he will 

go out of business because he has to pass the cost on somewhere. 

I understand that. I totally get that. Somebody has to pay the bill 

for this. 

It is going to be a large bill when you comply with all these rules 

and regulations. Ask a community bank. I walked into a community bank the other day in Mountain City, Tennessee. There are 

more compliance officers in that bank after Dodd-Frank than there 

are loan officers. That is ridiculous. 

That is my fear here. I think what this is, is a solution looking 

for a problem. Right now, what we have is a plethora of people who 

are saving. We need to go out and find savers and encourage people 

to retire. That is what we did. 

To give you another little number here, the median retirement account balance for all working age households is $3,000. It is not 

the $50,000 that you brought up a minute ago. Anybody would 

jump on a $50,000 account, 1 percent of that is $500. One percent 

of $3,000 is $30. 

We have to have lower-income folks. I saw this with people I 

hired every day. I encouraged them. I begged them not to cash out 

like Ms. Doba did their 401(k) and do anything because it is very 

expensive when you look at the cost of money over time. 

Mr. Gaudreau, I want you to walk us through in my last little 

bit of time here about individuals that you have seen, companies 

and individuals, that you have helped with your business, obviously almost 100 years old. 

Mr. GAUDREAU. Yes. We are part of the fabric of our community, 

like most of our members are across America, and probably in your 

District, too, Mr. Chairman. 

These decisions that consumers make in the financial realm are 

based upon rapport and trust and relationship. These are not just 

simple transactions. We have worked with the DOL, tried to work 

with the DOL, to get this rule right, and there are many stakeholders in this discussion, and I think we are all better off and better served, including the consumer, if we collaborate on a solution 

that adopts these principles. 

We do not disagree that we should work in the best interest of 

our clients. My family has been doing that for 100 years. As a matter of fact, it is a little insulting to imply that we ever have not. 

The fact is that we absolutely agree with that and endorse that 

public policy. 

This is an actual change of such magnitude, by unelected regulators, and it is more than just a simple statement of trust. It is 

a giant rubric of regulations that will be imposed upon our industry and make it more and more difficult for the regular Americans 

to get financial advice. 

Chairman ROE. I thank you. My time has expired. I want to 

thank you again, the witnesses, all of you. Quite frankly, you are 

all here for the same purpose, which is to try to encourage people 

to save for retirement. That, I applaud all of you for, and thank 

you for taking your time to come and be with us. It was excellent. 

Each of you had great points to make, and I appreciate that. ApCEWDOCROOM with DISTILLER

82 

preciate you testifying before the Subcommittee today, each and 

every one of you. 

Mr. Polis, do you have any closing remarks? 

Mr. POLIS. I would like to join the chair in thanking our witnesses for spending their morning with us. I think many of us 

agree that a conflict of interest is important to address, how to address that is, of course, being discussed. I am hopeful we can move 

forward in a bipartisan and cooperative manner. 

As you know, very few Democrats support legislation that would 

kill the rule, and I personally believe that is counterproductive. 

What we are talking about, of course, is specifics of the rule or specifics of legislation. 

The Department of Labor does need to make changes and communicate with stakeholders to ensure that middle and low income 

individuals can continue to receive high quality, non-conflicting financial advice. 

What I have learned from my conversations with savers, advisors, consumer protection advocates, and constituents, is we should 

continue this productive, open process, which I believe the Labor 

Secretary has been doing, which I also believe would be strengthened with an additional comment period, as long as it is consistent 

with the time frame of the presidency and the tenure of the Labor 

Secretary. 

When we disagree about how to solve a problem, we need to sit 

down and hammer out a solution. I hope this hearing today is very 

much seen in that light of furthering the open stakeholder process 

that should complement the efforts of the Secretary as we seek to 

finalize this rule, and I yield back. 

Chairman ROE. I thank the gentleman for yielding. Again, I want 

to offer my appreciation for all of you taking the time. I know there 

is a lot of time and effort in preparing for these hearings, and I 

thank you for doing that. You have been a great panel. 

I want to put into the record just the principles that we have 

worked on for this rulemaking. 

Promoting families and individuals’ saving for a financially secure retirement is an essential public policy goal. 

Retirement advisors must serve in their clients’ best interest and 

must be required to do so. 

Retirement advisors must deliver clear, simple, and relevant disclosure of material conflicts, including compensation received, and 

all investment fees to individual’s savings or retirement. 

Public policies must protect access to investment advice and education for low and middle income workers and retirees. 

Public policy should never deny individuals the financial information they need to make informed decisions. 

Investor choice and consumer access to all investment services, 

such as proprietary products, commission based sales, and guaranteed lifetime income, should be preserved in a way that does not 

pick winners and losers. 

Small business owners should have access to the financial advice 

and products they need to establish and maintain retirement plans 

and help workers save for retirement. 

CEWDOCROOM with DISTILLER

83 

I think those are the principles that we need to go forward on, 

and we need to put the brakes on this rule before we end up with 

another mess that we have seen in multiple other things. 

I have seen rulemaking put businesses under, and it was never 

intended to do that from Congress. I have become very, very weary 

when these agencies begin to issue rules that affect how we actually do our jobs. I have seen it in medicine. It is in the financial 

services, in banking, and so on. 

Who ultimately pays the bills for those? Us, the consumers. We 

ultimately get the bill. 

Thank you all very much. 

Mr. POLIS. Mr. Chairman, I do have several documents to submit 

for the record, along with the testimony that Ms. Mohrman-Gillis 

mentioned in her answer to me, and this document as well. 

Chairman ROE. Without objection, so ordered. 

[The information follows:] 

CEWDOCROOM with DISTILLER

84 

CEWDOCROOM with DISTILLER


Insert offset folio 48 here 97711.048
85 

CEWDOCROOM with DISTILLER


Insert offset folio 49 here 97711.049
86 

CEWDOCROOM with DISTILLER


Insert offset folio 50 here 97711.050
87 

CEWDOCROOM with DISTILLER


Insert offset folio 51 here 97711.051
88 

CEWDOCROOM with DISTILLER


Insert offset folio 52 here 97711.052
89 

CEWDOCROOM with DISTILLER


Insert offset folio 53 here 97711.053
90 

CEWDOCROOM with DISTILLER


Insert offset folio 54 here 97711.054
91 

CEWDOCROOM with DISTILLER


Insert offset folio 55 here 97711.055
92 

CEWDOCROOM with DISTILLER


Insert offset folio 56 here 97711.056
93 

CEWDOCROOM with DISTILLER


Insert offset folio 57 here 97711.057
94 

CEWDOCROOM with DISTILLER


Insert offset folio 58 here 97711.058
95 

CEWDOCROOM with DISTILLER


Insert offset folio 59 here 97711.059
96 

CEWDOCROOM with DISTILLER


Insert offset folio 60 here 97711.060
97 

CEWDOCROOM with DISTILLER


Insert offset folio 61 here 97711.061
98 

CEWDOCROOM with DISTILLER


Insert offset folio 62 here 97711.062
99 

CEWDOCROOM with DISTILLER


Insert offset folio 63 here 97711.063
100 

CEWDOCROOM with DISTILLER


Insert offset folio 64 here 97711.064
101 

CEWDOCROOM with DISTILLER


Insert offset folio 65 here 97711.065
102 

CEWDOCROOM with DISTILLER


Insert offset folio 66 here 97711.066
103 

CEWDOCROOM with DISTILLER


Insert offset folio 67 here 97711.067
104 

CEWDOCROOM with DISTILLER


Insert offset folio 68 here 97711.068
105 

CEWDOCROOM with DISTILLER


Insert offset folio 69 here 97711.069
106 

CEWDOCROOM with DISTILLER


Insert offset folio 70 here 97711.070
107 

CEWDOCROOM with DISTILLER


Insert offset folio 71 here 97711.071
108 

CEWDOCROOM with DISTILLER


Insert offset folio 72 here 97711.072
109 

CEWDOCROOM with DISTILLER


Insert offset folio 73 here 97711.073
110 

CEWDOCROOM with DISTILLER


Insert offset folio 74 here 97711.074
111 

CEWDOCROOM with DISTILLER


Insert offset folio 75 here 97711.075
112 

CEWDOCROOM with DISTILLER


Insert offset folio 76 here 97711.076
113 

CEWDOCROOM with DISTILLER


Insert offset folio 77 here 97711.077
114 

CEWDOCROOM with DISTILLER


Insert offset folio 78 here 97711.078
115 

CEWDOCROOM with DISTILLER


Insert offset folio 79 here 97711.079
116 

CEWDOCROOM with DISTILLER


Insert offset folio 80 here 97711.080
117 

CEWDOCROOM with DISTILLER


Insert offset folio 81 here 97711.081
118 

CEWDOCROOM with DISTILLER


Insert offset folio 82 here 97711.082
119 

CEWDOCROOM with DISTILLER


Insert offset folio 83 here 97711.083
120 

CEWDOCROOM with DISTILLER


Insert offset folio 84 here 97711.084
121 

CEWDOCROOM with DISTILLER


Insert offset folio 85 here 97711.085
122 

CEWDOCROOM with DISTILLER


Insert offset folio 86 here 97711.086
123 

CEWDOCROOM with DISTILLER


Insert offset folio 87 here 97711.087
124 

CEWDOCROOM with DISTILLER


Insert offset folio 88 here 97711.088
125 

CEWDOCROOM with DISTILLER


Insert offset folio 89 here 97711.089
126 

CEWDOCROOM with DISTILLER


Insert offset folio 90 here 97711.090
127 

CEWDOCROOM with DISTILLER


Insert offset folio 91 here 97711.091
128 

CEWDOCROOM with DISTILLER


Insert offset folio 92 here 97711.092
129 

CEWDOCROOM with DISTILLER


Insert offset folio 93 here 97711.093
130 

CEWDOCROOM with DISTILLER


Insert offset folio 94 here 97711.094
131 

CEWDOCROOM with DISTILLER


Insert offset folio 95 here 97711.095
132 

CEWDOCROOM with DISTILLER


Insert offset folio 96 here 97711.096
133 

CEWDOCROOM with DISTILLER


Insert offset folio 97 here 97711.097
134 

CEWDOCROOM with DISTILLER


Insert offset folio 98 here 97711.098
135 

CEWDOCROOM with DISTILLER


Insert offset folio 99 here 97711.099
136 

CEWDOCROOM with DISTILLER


Insert offset folio 100 here 97711.100
137 

Chairman ROE. With that, the meeting is adjourned. 

[Additional submissions by Dr. Roe follows:] 

CEWDOCROOM with DISTILLER

138 

CEWDOCROOM with DISTILLER


Insert offset folio 101 here 97711.101
139 

CEWDOCROOM with DISTILLER


Insert offset folio 102 here 97711.102
140 

CEWDOCROOM with DISTILLER


Insert offset folio 103 here 97711.103
141 

CEWDOCROOM with DISTILLER


Insert offset folio 104 here 97711.104
142 

CEWDOCROOM with DISTILLER


Insert offset folio 105 here 97711.105
143 

CEWDOCROOM with DISTILLER


Insert offset folio 106 here 97711.106
144 

CEWDOCROOM with DISTILLER


Insert offset folio 107 here 97711.107
145 

CEWDOCROOM with DISTILLER


Insert offset folio 108 here 97711.108
146 

CEWDOCROOM with DISTILLER


Insert offset folio 109 here 97711.109
147 

CEWDOCROOM with DISTILLER


Insert offset folio 110 here 97711.110
148 

CEWDOCROOM with DISTILLER


Insert offset folio 111 here 97711.111
149 

CEWDOCROOM with DISTILLER


Insert offset folio 112 here 97711.112
150 

CEWDOCROOM with DISTILLER


Insert offset folio 113 here 97711.113
151 

CEWDOCROOM with DISTILLER


Insert offset folio 114 here 97711.114
152 

[Whereupon, at 11:58 a.m., the Subcommittee was adjourned.] 

Æ 

CEWDOCROOM with DISTILLER