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RETIREMENT SECURITY: CHALLENGES 

CONFRONTING PENSION PLAN 

SPONSORS, WORKERS, 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 TWELFTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, JUNE 14, 2011 

Serial No. 112–28 

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 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Bob Goodlatte, Virginia 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Barrett Karr, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS 

DAVID P. ROE, Tennessee, Chairman 

Joe Wilson, South Carolina 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Robert E. Andrews, New Jersey 

Ranking Minority Member 

Dennis J. Kucinich, Ohio 

David Loebsack, Iowa 

Dale E. Kildee, Michigan 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 
(III) 

C O N T E N T S 

Page 

Hearing held on June 14, 2011 ............................................................................... 1 

Statement of Members: 

Andrews, Hon. Robert E., ranking minority member, Subcommittee on 

Health, Employment, Labor and Pensions ................................................. 4 

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

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

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

Statement of Witnesses: 

Brill, Alex M., research fellow, American Enterprise Institute .................... 6 

Prepared statement of ............................................................................... 9 

Delaney, Dennis T., executive vice president, human resources & administration, Ingram Industries Inc. ................................................................. 17 

Prepared statement of ............................................................................... 19 

Klein, James A., president, American Benefits Council ................................ 26 

Prepared statement of ............................................................................... 28 

Richtman, Max, executive vice president and acting CEO, National Committee to Preserve Social Security and Medicare ....................................... 23 

Prepared statement of ............................................................................... 25 

Additional Submissions: 

Mr. Andrews: 

Prepared statement of Retirement USA .................................................. 56 

Prepared statement of American Association of Retired Persons ......... 58 

Chairman Roe: 

Prepared statement of the American Bankers Association; the Financial Services Roundtable; the Financial Services Institute; Insured 

Retirement Institute; National Association of Insurance and Financial Advisors; and the Securities Industry and Financial Markets 

Association .............................................................................................. 64 

Prepared statement of the Employee Benefit Research Institute ......... 72 

Prepared statement of the U.S. Chamber of Commerce ........................ 87 

(1) 

RETIREMENT SECURITY: CHALLENGES 

CONFRONTING PENSION PLAN 

SPONSORS, WORKERS, AND RETIREES 

Tuesday, June 14, 2011 

U.S. House of Representatives 

Subcommittee on Health, Employment, Labor and Pensions 

Committee on Education and the Workforce 

Washington, DC 

The subcommittee met, pursuant to call, at 11:00 a.m., in room 

2175, Rayburn House Office Building, Hon. Phil Roe [chairman of 

the subcommittee] presiding. 

Present: Representatives Roe, DesJarlais, Bucshon, Barletta, 

Roby, Heck, Kline (ex officio), Andrews, Kucinich, Loebsack, Kildee, 

Hinojosa, McCarthy, Tierney, Wu, Holt and Scott. 

Staff Present: Andrew Banducci, Professional Staff Member; 

Katherine Bathgate, Press Assistant/New Media Coordinator; 

Casey Buboltz, Coalitions and Member Services Coordinator; Ed 

Gilroy, Director of Workforce Policy; Benjamin Hoog, Legislative 

Assistant; Barrett Karr, Staff Director; Brian Newell, Deputy Communications Director; Krisann Pearce, General Counsel; Molly 

McLaughlin Salmi, Deputy Director of Workforce Policy; Ken 

Serafin, Workforce Policy Counsel; Linda Stevens, Chief Clerk/Assistant to the General Counsel; Alissa Strawcutter, Deputy Clerk; 

Aaron Albright, Minority Communications Director for Labor; Kate 

Ahlgren, Minority Investigative Counsel; Tylease Alli, Minority 

Clerk; Jody Calemine, Minority Staff Director; John D’Elia, Minority Staff Assistant; Brian Levin, Minority New Media Press Assistant; Megan O’Reilly, Minority General Counsel; Julie Peller, Minority Deputy Staff Director; Meredith Regine, Minority Labor Policy Associate; and Michele Varnhagen, Minority Chief Policy Advisor/Labor Policy Director (Counsel). 

Chairman ROE. A quorum being present, the Subcommittee on 

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

Good morning. I would like to welcome our guests and thank our 

witnesses for being with us today. 

Roughly 60 million workers participate in an employment-based 

retirement plan. They, like so many Americans, have felt the impact of the recession and continue to experience tough times during 

this slow economy. 

As more Americans reach into their retirement savings just to 

make ends meet, policymakers have a responsibility to examine the 

difficulties facing workers and retirees and discuss whether Fed-
2 

eral policies are hurting or helping efforts to rebuild retirement 

savings. 

A cornerstone of the Nation’s retirement system is pension private plans. Whether through a defined benefits plan or a defined 

contribution plan, a worker’s ability to plan and save for his or her 

retirement is critical to long-term financial security. Since 1974, 

the Employee Retirement Income Security Act, ERISA, has governed private pension plans, setting eligibility standards, fiduciary 

responsibilities for plan managers and the responsibility to disclose 

information to participants regarding the plan’s financial health. 

Lawmakers have tried to balance the necessary flexibility to allow 

for investment opportunities with a demand for clear guidelines 

that protect workers. 

Unfortunately, the best efforts of Washington cannot predict the 

difficulties brought on by deep recession. Today pension plans face 

a number of challenges that threaten the retirement security of 

American workers. According to one estimate, defined benefit pension plans were underfunded by more than $500 billion in 2009. 

This situation may not improve if economic growth remains anemic. 

This situation threatens to place an even greater strain on an already burdened Pension Benefit Guaranty Corporation. For nearly 

40 years the PBGC has insured the retirement benefits of workers 

enrolled in a defined benefit plan. Today it insures the benefits of 

44 million workers, yet faces obligations that exceed its resources 

by nearly $22 billion. 

A number of ideas have been put forth seeking a solution, and 

I urge the administration to provide greater details about its own 

proposals so that we can find a common sense and long-term solution on behalf of the American people. 

Additionally, pension plan sponsors and managers must cope 

with an uncertain regulatory environment. Last year, Congress 

passed a comprehensive overhaul of the Nation’s financial regulatory system. The law has led to thousands of new pages of regulations and rules. Regardless of one’s views on the prescription for 

financial reform, the law has created substantial changes to investment markets and additional uncertainty for pension plan sponsors, workers and retirees. 

The administration has also introduced a regulatory proposal 

that would transform a key part of ERISA. The proposed change 

to the defined definition of ‘‘fiduciary’’ will disregard 35 years of 

regulatory guidance without a full understanding of the consequences. Federal policy should help facilitate, rather than undermine, innovation and improvements to investment services. There 

are real concerns that the administration’s proposal will take retirement planning in the wrong direction without a full understanding of the consequences. 

These are concerns shared across party lines. In a letter addressed to members of the Obama administration members of the 

New Democrat Coalition wrote, the proposed rule will result in 

‘‘limiting access to investment education and information.’’ The letter goes on to say, ‘‘This would result in worse investment decisions 

by participants and would, in turn, increase the costs of investment 
3 

products, services, and advice that are absolutely critical parts of 

a sound investment strategy for consumers.’’ 

Washington has a responsibility to provide clear rules of the road 

to prevent fraud and abuse, but must also be careful not to create 

an environment that stifles investment and ultimately threatens 

the income and security of America’s retirees. New Democrat Coalition Members of Congress have called on an administration to restart the fiduciary rule process, and I hope the administration will 

do so. 

This hearing is our first opportunity to take a closer look at the 

challenges facing the pensions and retirement savings of workers 

and retirees. In recent years, these issues have generated a lively 

debate and yet have generally resulted in a bipartisan effort to 

strengthen the retirement security of our Nation. It would be regrettable at such a critical time for our country to abandon that 

spirit of cooperation today. There is certainly a lot to discuss. 

And with that, I will recognize Mr. Andrews, senior Democrat of 

the subcommittee, for his opening remarks. Mr. Andrews. 

[The statement of Chairman Roe follows:] 

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

Subcommittee on Health, Employment, Labor and Pensions 

Good morning. I would like to welcome our guests and thank our witnesses for 

being with us today. 

Roughly 60 million workers participate in an employment-based retirement plan. 

They, like so many Americans, have felt the impact of the recent recession and continue to experience tough times during this slow economy. As more Americans reach 

into their retirement savings just to make ends meet, policymakers have a responsibility to examine the difficulties facing workers and retirees and discuss whether 

federal policies are helping or hurting efforts to rebuild retirement savings. 

A cornerstone of the nation’s retirement system is private pension plans. Whether 

through a defined benefits plan or a defined contribution plan, a worker’s ability to 

plan and save for his or her retirement is critical to long-term financial security. 

Since 1974, the Employee Retirement Income Security Act has governed private 

pension plans, setting eligibility standards, fiduciary responsibilities for plan managers, and the responsibility to disclose information to participants regarding the 

plan’s financial health. Lawmakers have tried to balance the necessary flexibility to 

allow for investment opportunities with the demand for clear guidelines that protect 

workers. 

Unfortunately, the best efforts of Washington cannot predict the difficulties 

brought on by a deep recession. Today, pension plans face a number of challenges 

that threaten the retirement security of America’s workers. According to one estimate, defined benefit pension plans were underfunded by more than $500 billion in 

2009. This situation may not improve if economic growth remains anemic. 

This situation threatens to place even greater strain on an already burdened Pension Benefit Guaranty Corporation. For nearly forty years, PBGC has insured the 

retirement benefits of workers enrolled in a defined benefit plan. Today, it insures 

the benefits of 44 million workers yet faces obligations that exceed its resources by 

nearly $22 billion. A number of ideas have been put forth seeking a solution, and 

I urge the administration to provide greater details about its own proposal so we 

can find a commonsense and long-term solution on behalf of the American people. 

Additionally, pension plan sponsors and managers must cope with an uncertain 

regulatory environment. Last year, Congress passed a comprehensive overhaul of 

the nation’s financial regulatory system. The law has led to thousands of pages in 

new rules and regulations. Regardless of one’s views on the prescription for financial 

reform, the law has created substantial changes to investment markets and additional uncertainty for pension plan sponsors, workers, and retirees. 

The administration has also introduced a regulatory proposal that will transform 

a key part of ERISA. The proposed change to the definition of ‘‘fiduciary’’ will disregard 35 years of regulatory guidance without a full understanding of the consequences. Federal policy should help facilitate, rather than undermine, innovation 

and improvements to investment services. There are real concerns the administra-
4 

tion’s proposal will take retirement planning in the wrong direction, without a full 

understanding of the consequences. 

These are concerns shared across party lines. In a letter addressed to members 

of the Obama administration, members of the New Democrat Coalition wrote the 

proposed rule will result in ‘‘limiting access to investment education and information.’’ The letter goes on to say, ‘‘This would result in worse investment decisions 

by participants and would, in turn, increase the costs of investment products, services, and advice that are absolutely critical parts of a sound investment strategy for 

consumers.’’ 

Washington has a responsibility to provide clear rules of the road to prevent fraud 

and abuse, but must also be careful not to create an environment that stifles investment and ultimately threatens the income security of America’s retirees. New Democrat Coalition members of Congress have called on the administration to restart 

the fiduciary rule process, and I hope the administration will do so. 

This hearing is our first opportunity to take a closer look at the challenges facing 

the pensions and retirement savings of workers and retirees. In recent years, these 

issues have generated a lively debate, yet have generally resulted in a bipartisan 

effort to strengthen the retirement security of our nation. It would be regrettable 

at such a critical time for our country to abandon that spirit of cooperation today. 

There is certainly a lot to discuss, and with that, I will now recognize Mr. Andrews, the senior Democrat of the subcommittee, for his opening remarks. 

Mr. ANDREWS. Thank you, Mr. Chairman. Good morning. Thank 

you for calling this hearing and I think it is good to see the chairman proceeding in a tradition on this subcommittee where the two 

sides try to work together on pension issues. 

When the present Speaker of the House, Speaker Boehner, 

chaired this subcommittee a few years ago, we were able to work 

with him quite successfully on the 2006 Pension Protection Act and 

I think achieve some good things for the people of our country, and 

I am glad to see that you are following in that tradition, and I appreciate it very, very much. 

I think this is a very timely discussion because anybody who visits retirees in their district now knows the incredible stress that 

these families are under. 

I live in a State that has a very, very high cost of living, high 

property taxes, high utility bills, high cost of food, all sorts of 

things. You know, last week was a very hot and humid week in our 

district, and I visited a number of senior citizens. You know, you 

see them living in one room because it costs too much to cool the 

rest of the house so they try to keep their air conditioning bills as 

low as possible. Some might not even turn on the air conditioning 

at all because it is a bill that they can’t pay. 

You know, these are the people that you see at the grocery store 

searching for whatever aisle might have the deep discount markdown stuff, because the boxes are a little bit defective of cereal or 

the milk is a little bit older than the rest of the milk. These are 

the people who, if they get a gift, they save the wrapping paper so 

they can reuse the wrapping paper if they want to give their grandchild or someone a gift. These are people living at or very close to 

the edge of oblivion in their economic situation. 

And so obviously it makes a lot of sense for us to talk about ways 

that we can work together to try to enhance and improve retirement income for America’s retirees. I know that the panel today 

will have some very good ideas about that. I would respectfully 

suggest, though, that there are two things that we ought to do to 

help retirees through this very, very difficult time. 
5 

The first, and I say this with all due respect, would be for the 

majority to withdraw its ill-considered plan to end Medicare. 

The Congressional Budget Office tells us that the additional cost 

of copays and deductibles and premiums, the additional out-ofpocket health care costs for Medicare recipients, if the Republican 

plan goes through, would be an additional $6,000 a year. Now, put 

this in perspective. A person who is 54 years of age today would 

have to save an additional $182,000 in their 401(k) or some other 

account just to generate enough income to pay the extra health 

care bills that the Republican Medicare proposal entails. Put that 

in some perspective, most people about 5 years out from retirement 

only have $100,000 in their account to begin with. 

So if we want to talk about, you know, elevating the standard of 

living for America’s retirees, we ought to talk about withdrawing 

this disastrous proposal on Medicare the Congress has looked at 

this spring. 

Second, I would say that, again with all due respect, when it 

comes to the fiduciary rule that is under consideration here, look, 

one of the reasons we had the financial collapse of this country of 

2008 is the disease of conflict of interest where people were acting 

on behalf of one set of interests and representing they were really 

representing another set of interests. 

For most Americans, second only to their home equity, their most 

precious asset is their pension. And I think we definitely need rules 

that say when someone gives you advice on investing your pension, 

they should be acting in your interests and not theirs. People 

should not be receiving advice from someone who would stand to 

benefit more if you put your account in this mutual fund rather 

than that one or in a mutual fund rather than a bond fund. 

As I understand the proposed rule, it simply says that the interests of people giving advice have to be aligned with the interests 

of people receiving it, and I think that is something that we need 

and should be taking a look at. 

So I appreciate the chance to explore these issues. I know this 

panel is an expert panel. We are glad that you are here. We look 

forward to engaging questions, and I thank you again, Mr. Chairman. 

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

committee rule 7(c), all members will be permitted to submit written statements to be included in the permanent hearing record. 

Without objection, the hearing record will remain open for 14 

days to allow such statements and other extraneous material referenced during the hearing to be submitted for the official hearing 

record. 

It is now my pleasure to introduce our distinguished panel of witnesses. 

Mr. Alex Brill is Research Fellow at the American Enterprise Institute, where he studies private pension systems. He is a former 

Senior Adviser and Chief Economist to the House Ways and Means 

Committee and also served on the staff of the President’s Council 

of Economic Advisers. In Congress and at the CEA, Mr. Brill 

worked on a variety of issues, including dividend taxation, international tax policy, Social Security reform, defined benefit pension 

reform, and U.S. trade policy. Mr. Brill holds a Bachelor’s Degree 
6 

from Tufts University and a Master’s Degree in mathematical finance from Boston University. 

Mr. Dennis Delaney is Executive Vice President of Human Resources & Administration for Ingram Industries, Inc., a book distributor and inland aquatic freight carrier. He is a member of the 

Employee Benefits Committee, chair of the Retirement Plans Committee, and a member of the Workplace Wellness Alliance Committee of the U.S. Chamber of Commerce, and the Unemployment 

Rights Committee of the Human Resources Policy Association. 

Mr. Delaney is a resident of Nashville, Tennessee—welcome to a 

fellow Tennessean—where Ingram Industries has headquarters. He 

holds a Bachelor’s Degree from Michigan State University and a 

Master’s Degree from Central Michigan University and a law degree from the University of Detroit. Welcome. 

Mr. Max Richtman is the Executive Vice President and acting 

CEO of the National Committee to Preserve Social Security and 

Medicare. He served as a Staff Director to the Senate Special Committee on Aging from 1986 to 1989 and the Senate Select Committee on Indian Affairs from 1979 to 1986. 

He was born in Munich, Germany, and grew up in Omaha, Nebraska. He graduated cum laude from Harvard College and received a law degree from Georgetown University Law School. Welcome. 

Mr. James Klein is President of the American Benefits Council, 

a trade association based in Washington, D.C., representing primarily Fortune 500 companies that either sponsor or administer 

health and retirement benefits covering more than 100 million 

Americans. Mr. Klein is a founding board member of the Americans for Generational Equity and serves on the Government Liaison Committee of the International Foundation of Employee Benefit Plans. Mr. Klein graduated magna cum laude from Tufts University with a degree in bioethics and graduated with honors from 

the National Law Center, George Washington University. 

Before I recognize the witnesses, each of you have provided your 

testimony, let me briefly explain the lighting system. You each 

have 5 minutes for your testimony, and with 1 minute remaining, 

the yellow light will come on. When your time has expired, the red 

light will come on. If you are in the middle of a thought or sentence, go ahead, obviously, and finish it. 

Please be aware and respectful of the time, and I will try to do 

the same as the chair. So with that, I will begin with Mr. Brill. 

STATEMENT OF ALEX M. BRILL, RESEARCH FELLOW, 

AMERICAN ENTERPRISE INSTITUTE 

Mr. BRILL. Chairman Roe, Ranking Member Andrews, and other 

members of the subcommittee, thank you for the opportunity to appear before you this morning and recognizing the importance of addressing challenges confronting pension and retirement security 

issues. 

This is a policy area with serious, long-term macroeconomic and 

microeconomic consequences. From a macroeconomic perspective, 

inadequate national savings reduces investment, a key determinant 

in future economic growth and prosperity. From a microeconomic 
7 

perspective, increased retirement savings are essential for the wellbeing of future retirees. 

I have submitted written testimony for the record and in my oral 

statement this morning I will briefly cover three areas. 

First, I will summarize data described in my testimony regarding 

the size and scope of the retirement system and the shift in recent 

years from defined benefit, DB, plans, towards defined contribution 

plans. 

Second, I will discuss problems with underfunding of retirement 

plans, both on the defined benefit and defined contribution side; 

and, finally, I will examine the recent recession’s effects on retirement savings. 

At the end of 2010, retirement assets in the United States totaled approximately $17.5 trillion, with retirement savings making 

up 37 percent of all household financial assets. 

IRAs, defined contribution plans, and government pension plans 

each accounted for roughly a quarter of all retirement savings in 

the United States. The remaining quarter of assets was in private 

DB and annuity plans collectively, annuities collectively. 

Total retirement assets have generally grown over time with the 

exception of the significant but temporary decline in equity values 

that occurred in 2008 and 2009. Retirement savings in nominal 

terms have increased 50-fold from $368 billion in 1974 to the 

present. 

At the same time, there has been a shift in the private sector 

from DB to DC plans. Today, about two-thirds of private employersponsored retirement assets are in defined contribution plans, the 

remaining one-third in defined benefit plans, an increase from 

about 50/50 20 years ago. However, the shift is, in fact, more dramatic as the share of new contributions to retirement are nearly 

90 percent in the form of defined contribution. 

Though assets and participation are rising, serious problems still 

persist in these two areas. In terms of participation, while 65 percent of private sector workers have access to retirement plans, only 

50 percent participate. 

New policies, encouraged by the Pension Protection Act of 2006, 

foster auto enrollment and have been successful, but greater participation would further improve the well-being of future retirees. 

In terms of underfunding, it is estimated that nearly 50 percent 

of baby boomers and Generation Xers’ defined contribution plans 

may be at risk of being inadequate to see them through retirement. 

While these estimates are only tentative, they suggest that more 

education would be valuable to encouraging more savings. 

Underfunding is also a problem in public and private DB plans. 

The Congressional Budget Office recently found that State and 

local pension funding levels are below 80 percent by public pension 

systems’ own metrics and by more standard accounting measures 

face funding levels near 50 percent. 

Private DB plans are underfunded as well. At the end of 2010, 

the largest 100 plans were only 85 percent funded, an improvement 

from recent years, but a significant gap still exists. 

At the economy’s low point, the first quarter of 2009, retirement savings in the United States had fallen by $2.7 trillion from prerecession levels. The stock market, as measured by the S&P 500, 
8 

recovered by the beginning of 2011. The damage was done for 

many approaching or in retirement at the time of the recession. 

However, it should be understood that the greatest impact of the 

recession on retirement income is not a result of fluctuations in 

stock market values, but rather through labor market channels. 

Not only has the high unemployment rate reduced retirement savings, but anemic wage growth reduces lifetime incomes and, as a 

result, reduces future Social Security benefits. 

And, finally, I have been and remain a strong advocate of policies 

that establish default savings for retirement savings that encourage more participation, more appropriate asset allocation and higher savings rates, policies commonly known as auto enrollment life 

cycle investment funds and auto escalation. But I would like to emphasize that it is important that these tools be complements to, not 

substitutes, for active education, engagement and participation by 

workers in their own retirement planning. 

From a philosophical perspective, our country has foregone its 

commitment to the value of thrift. From a practical perspective, our 

workers lack adequate financial literacy. 

I would like to thank the committee for the opportunity to testify, and I look forward to your questions. 

[The statement of Mr. Brill follows:] 
9 
10 
11 
12 
13 
14 
15 
16 
17 

Chairman ROE. Thank you, Mr. Brill. 

Mr. Delaney. 

STATEMENT OF DENNIS DELANEY, EXECUTIVE VICE 

PRESIDENT, INGRAM INDUSTRIES, INC. 

Mr. DELANEY. Thank you, Chairman Roe, Ranking Member Andrews, and members of the committee, for the opportunity to discuss challenges for sponsors of defined benefit and defined contribution plans. 

Ingram Industries is a privately held company headquartered in 

Nashville, Tennessee, consisting of the Ingram Marine Group, 
18 

which is the largest inland marine transportation company in the 

country, and Ingram Content Group, which provides a broad range 

of physical and digital services to the book industry. 

We administer benefit programs for over 5,000 domestic associates, we have over 2,400 active associates with a frozen defined 

benefit, 765 retirees and over 1,900 terminated vested plan participants. 

While there are challenges, the employer provided retirement 

system has been successful in providing retirement income. One of 

the greatest impediments to the employer provided system is a lack 

of predictability of the rules and regulatory flexibility to adapt to 

changing situations. 

During the recent financial crisis, plan sponsors were negatively 

impacted by inflexible funding rules. The unpredictability has 

forced my company to make difficult choices in balancing the needs 

of our employees with the need for prudent sound financial management of our company. 

In mid-2003 we looked at our defined benefit plan which had 

been in place since 1978. After 18 months of review, the decision 

was made to maintain the plan but to close it to new entrants effective January 1, 2005. In 2006, the Pension Protection Act 

changed the funding rules for defined benefit plans. 

A major impetus behind the PPA was to increase the funding 

level of pension plans. Most plan sponsors entered 2008 fully ready 

to comply, but the severe market downturn at the end of 2008 

drastically changed that situation. 

Because of the PPA’s accelerated funding scenarios, and notwithstanding Congress’ efforts to provide temporary funding relief, 

Ingram was faced with having to contribute tens of millions of dollars beyond our normal costs in a short period of time to a plan 

that, by design, was intended to bridge generations. The reality for 

Ingram was defined by one of our owners as unacceptably unpredictable. Consequently, Ingram froze its DB plan effective December 31, 2010. 

Adding to the unpredictability in defined benefit plans is the 

present situation, a consideration or proposal to increase PBGC 

premiums. Increasing premiums without the opportunity for discussion of details, consideration of the impact or buy-in from interested parties would present another challenge to the defined benefit pension system. 

The inclusion of automatic enrollment and automatic escalation 

in PPA has furthered retirement security. Ingram implemented an 

auto enrollment plan in 2005. New hires are enrolled in the defined 

contribution plan at a 3 percent deferral rate. Participation moved 

from 70 percent in 2005 to 88 percent in 2010. Currently the average pretax deferral of all participants is over 5 percent. 

Our plan recognizes service with the company is important, and 

we match from 50 percent to 100 percent of the first 5 percent, dependent on years of service with the company. To ensure that participants in defined contribution plans are getting the most benefit, 

investment in financial education is critical. A major concern for 

employers is the ability to provide investment advice and financial 

education without incurring liability. Legislation to further encourage such programs would be beneficial. 
19 

Ingram has offered workshops for associates nearing retirement. 

We communicate retirement information through the Internet, 

postcards, fliers, posters, quarterly newsletters and quarterly reports on investment performance. In addition, we offer asset allocation guidance through Morningstar. 

We have hesitated to offer more robust advice in the form of investment recommendations, contribution increases and rebalancing 

due to the uncertainty of the regulations regarding advice services. 

In general, greater regulation often leads to greater administrative complexities and burdens. Plan sponsors are faced with two increasingly conflicting goals, providing information required under 

ERISA and providing clear and streamlined information. 

Accounting changes from FASB can also create worry for plan 

sponsors. This can discourage participation in the employer provided retirement system and has had a significant impact, for example, on the long-term prospects of providing post-retirement 

medical benefits. 

There has been a shift away from defined benefit plans and an 

increase in defined contribution plans. The reasons for this shift 

are numerous, cost considerations, changing demographics, and uncertainty surrounding future liabilities of defined benefit plans. 

We implemented a money purchase plan for a segment of our 

employee population in 2007, and under this plan we make an annual contribution to each associate based on age and years of service. 

The key to ensuring the continuation of the private retirement 

system is flexibility and predictability. The mix and types of benefit 

plans in the future will be diverse, consequently it is increasingly 

important to ensure that there are no barriers to innovation. 

I hope that Congress continues to work with plan sponsors to 

enact legislation that will encourage further participation in the 

employer-provided system and keep them in the game. 

I thank you for the opportunity to testify today and look forward 

to any questions you may have. 

[The statement of Mr. Delaney follows:] 

Prepared Statement of Dennis T. Delaney, Executive Vice President, 

Human Resources & Administration, Ingram Industries Inc. 

Thank you, Chairman Kline, Ranking Member Miller, and members of the Committee for the opportunity to appear before you today to discuss challenges for sponsors of defined benefit and defined contribution plans. My name is Dennis Delaney, 

Executive Vice President, Human Resources & Administration for Ingram Industries Inc. 

Ingram is a privately held company with a portfolio of operating businesses 

headquartered in Nashville, Tennessee, consisting of Ingram Marine Group, the 

largest inland marine transportation company in the country with over 140 motor 

vessels and 4,000 barges, and Ingram Content Group, which provides a competitive 

suite of physical book and digital content distribution, print on demand and content 

management and fulfillment services for retailers, publishers, libraries and educators both in the U.S. and internationally. 

Ingram administers benefit programs for over 5,000 domestic associates who live 

in 36 states. We have over 2,400 active associates with a frozen defined benefit, 765 

retirees and over 1,900 terminated vested plan participants. My testimony reflects 

my 34 years of experience in the human resources field, 14 of which have been with 

Ingram Industries and 20 of which were with Ford Motor Company. 

I appreciate the opportunity to testify before you today on the challenges facing 

plan sponsors and in particular, Ingram’s experience as it relates to our defined benefit and defined contribution plans. 
20 

1 EBRI Databook, 2009, Chapter 2. 

2 EBSA Private Pension Plan Bulletin Historical Tables and Graphs, 2009 

3 Job Creation and Worker Assistance Act of 2002 (PL 107-147 increasing the range of permissible interest rates for determining pension liabilities, lump sum distributions, and PBGC premiums for under-funded pension plans to 120% of the current 30-year Treasury bond interest 

rate; Pension Funding Equity Act of 2004 replacing the interest rate assumption for two years; 

Pension Protection Act of 2006 fundamentally changing the funding rules for both single- employer and multiemployer defined benefit plans; The Worker, Retiree, and Employer Recovery 

Act of 2008 (‘‘WRERA’’) providing limited funding relief; The Preservation of Access to Care for 

Medicare Beneficiaries and Pension Relief Act of 2010, providing defined benefit plan funding 

relief for both single-employer and multiemployer plans. 4 In 1999, the Service’s Director of Employee Plans issued a Field Directive that effectively 

halted the determination letter applications of hybrid plans from being processed. In 2002, the 

Treasury Department, with input from the Equal Employment Opportunity Commission and the 

Department of Labor, issued proposed regulations addressing the issue of age discrimination in 

hybrid plans but withdrew the proposed regulations in 2004 in order to clear a path for Congress to act. The uncertainty surrounding hybrid plans has been even more considerable in the 

litigation arena with contradictory decisions among various circuit courts. 5 At the beginning of 2008, the average funded level of plans was 100%. Data from a study 

published by the Center for Retirement Research at Boston College indicates the following as 

of October 9, 2008: • In the 12-month period ending October 9, 2008, equities held by private defined benefit plans lost almost a trillion dollars ($.9 trillion). • For funding purposes, the aggregate funded status of defined benefit plans unpredictably 

fell from 100% at the end of 2007 to 75% at the end of 2008. (See footnote 5 of the study). [cont.] 

At the outset, I want to emphasize that these challenges do not just impact plan 

sponsors—they also have the potential to significantly impact the financial security 

of current workers and retirees. While we can each recognize real problems with the 

current retirement system, the employer—provided retirement system has been 

overwhelmingly successful in providing retirement income and security for employees. Private employers, with contributions and fees, spent over $200 billion on retirement income benefits in 2008 1 and paid out over $449 billion in retirement benefits.2 According to the Bureau of Labor Statistics, in March of 2009, 67% of all private sector workers had access to a retirement plan at work, and 51% participated. 

For full time workers, the numbers are 76% and 61%, respectively. Eighty-three percent of workers in private sector firms with 100 or more workers are covered in an 

employer-provided retirement plan and 68% participate. Because some workers, 

such as those under age eighteen or twenty-one, or those waiting to meet a minimum service requirement, are often not eligible to participate in a plan, these statistics actually underreport the success of employer-provided retirement plans. 

One of the greatest impediments to the employer-provided system today is the 

lack of predictability of the rules and regulatory flexibility to adapt to changing situations. Since 2002, Congress has passed five laws that address defined benefit funding.3 For over a decade, the legality of hybrid plans was unresolved and those plan 

sponsors were unable to get determination letters.4 During the recent financial crisis, plan sponsors faced unexpected financial burdens due to inflexible funding rules. 

These issues have each had a negative impact on the employer-provided retirement 

system and have acted as a disincentive for employers to continue to provide these 

benefits. Therefore, I strongly urge Congress to provide legislative solutions which 

inject the necessary predictability and flexibility into the retirement system to ensure that employers can continue to maintain plans that contribute to their workers’ 

retirement security. 

Issues Facing the Defined Benefit Funding System 

This unpredictability and the resulting inability to assess future funding needs 

has forced my company to come to grips with this uncertainty by making difficult 

choices in balancing the needs of our employees with the needs for prudent and 

sound financial management of our company. 

Subsequent to a major acquisition Ingram made in 2002, we took a long look at 

our defined benefit plan which had been in place since 1978. After 18 months of review and 80 iterations of plan design changes, the decision was made to maintain 

the defined benefit plan for active participants but to close it to new entrants as 

of January 1, 2005. 

On August 17, 2006, the Pension Protection Act of 2006 (‘‘PPA’’) was signed into 

law. The act fundamentally changed the funding rules for both single-employer and 

multi-employer defined benefit plans. A major impetus behind the PPA funding 

rules was to increase the funding level of pension plans. Consequently, most plan 

sponsors entered 2008 fully prepared to comply with the new funding rules, and 

based their contribution estimates on these rules. However, the severe market 

downturn at the end of 2008 drastically changed the situation.5 Because of the ac-
21 

• Aggregate contributions that employers will be required to make to such plans for 2009 could almost triple, from just over $50 billion to almost $150 billion. 6 United States Government Accountability Office, Private Pensions: Changes Needed to Provide 401(k) Plan Participants and the Department of Labor Better Information on Fees 5 (2007). 

celerated funding scenarios spelled out in the PPA, and notwithstanding the efforts 

of Congress to provide some temporary funding relief, Ingram was faced with the 

reality of having to contribute tens of millions of dollars beyond our normal costs, 

in a short period of time, to a plan that, by design was intended to bridge generations and handle the economic cycles—both good and bad—which occur over a long 

period of time. The persistent turmoil in the market and the interest rate environment created a reality for Ingram that was defined by one of our owners as ‘‘unacceptably unpredictable.’’ Consequently, Ingram froze its defined benefit plan effective December 31, 2010. 

Adding to the unpredictability in defined benefit plans is the consideration of increases to Pension Benefit Guaranty Corporation (PBGC) premiums. Increasing 

PBGC premiums without the opportunity for discussion of details, careful consideration of the potential impact, or buy-in from all interested parties would present another challenge to the private sector defined benefit system. 

Raising the PBGC premiums, without making contextual reforms to the agency 

or the defined benefit system, amounts to a tax on employers who have voluntarily 

decided to maintain defined benefit plans. An increase in PBGC premiums, when 

added to the multi-billion dollar impact of accelerated funding enacted in 2006, 

could divert critical resources from additional business investment and subsequent 

job creation. 

The Defined Contribution Plan System 

Auto Enrollment and Auto Escalation Programs. The inclusion of automatic enrollment and automatic escalation in PPA has gone a long way to further retirement 

security. 

Ingram implemented auto-enrollment on January 1, 2005. New hires are enrolled 

in the defined contribution plan at a 3% deferral rate. Participation moved from 

70% in 2005 to 88% in 2010. Currently, our lowest participation is 77% for the 

group of associates with 6–10 years of service. These associates were hired prior to 

implementation of auto-enrollment. Our highest participation is 96% for associates 

with 1 year or less of service. Since implementation of auto-enrollment, the average 

pre-tax deferral of all associates eligible for the defined contribution plan moved 

from 3.9% in 2005 to 4.6% 6 in 2010. The average pre-tax deferral of all participants 

in the defined contribution plan moved from 5.57% to 5.31%. This decline is due 

largely to the number of associates now participating in the plan at the auto-enroll 

deferral rate of 3%. 

Ingram does not currently use auto-escalation. Our plan recognizes that service 

with the company is important, and Ingram matches 50% of the first 5% contributed 

during an associate’s first 5 years of employment. Between years 5 to 9, Ingram 

matches 75%, and at 10 years and beyond, the match is 100%. 

Investment Advice. Defined contribution plans require greater employee participation than traditional defined benefit plans. To ensure that participants are getting 

the most benefit from their defined contribution plans, investment and financial 

education is critical. Ninety-two percent of all 401(k) plan participants are responsible for making investment decisions about their contributions to their retirement 

plan.getting the most benefit from their defined contribution plans, investment and 

financial education is critical. Ninety-two percent of all 401(k) plan participants are 

responsible for making investment decisions about their contributions to their retirement plan.getting the most benefit from their defined contribution plans, investment and financial education is critical. Ninety-two percent of all 401(k) plan participants are responsible for making investment decisions about their contributions 

to their retirement plan. 

In addition to investment advice, some employers would like to provide general 

financial education. The financial education would make employees more knowledgeable, and thus savvier, in financial matters. Legislation to encourage employers 

to provide financial advice which includes appropriate protection from liability 

would be beneficial even if employees pay a nominal fee. 

Ingram has offered workshops for associates nearing retirement including 

overviews of the defined benefit and defined contribution plans, Social Security, personal savings and investments, information on insurance needs (including health 

(Medicare), life, disability, and long term care), estate planning, common mistakes 

in retirement, etc. We actively promote National 401(k) Day and communicate retirement information through the internet, postcards, flyers, posters, quarterly 
22 

7Statement of Financial Accounting Standards No. 158, ‘‘Employers’ Accounting for Defined 

Benefit Pension and Other Postretirement Plans’’ (FAS 158). This statement requires companies 

to report the net financial status of pension and other benefits on the company’s balance sheet 

rather than in the footnotes. In addition, plan assets and benefit obligations must be measured 

as of the date of the employer’s fiscal year end and employers must use the projected benefit 

obligation measure of liabilities. 8 In 2007, 54 of the 100 largest employers offered a traditional pension plan to new workers, 

down from 58 in 2006, according to Watson Wyatt Worldwide. That 7% decline compares with 

a 14% drop as recently as 2005. Levitz, Jennifer. ‘‘When 401 (k) Investing Goes Bad’’. The Wall 

Street Journal Online 4 Aug. 2008. http://online.wsj.com/article/SB121744530152197819.html 

(accessed August 21, 2009) Also see Private Pension Plan Bulletin Historical Tables: U.S. Department of Labor, Employee Benefits Security Administration, June 2010, http://www.dol.gov/ 

ebsa/pdf/1975-2007historicaltables.pdf (accessed August 11, 2010). 9Private Pension Plan Bulletin Historical Tables: U.S. Department of Labor, Employee Benefits Security Administration, June 2010, http://www.dol.gov/ebsa/pdf/1975- 

2007historicaltables.pdf (accessed August 11, 2010). 10 Beckman, Allan. ‘‘Access, Participation, and Take-up Rates in Defined Contribution Retirement Plans Among Workers in Private Industry, 2006’’. Bureau of Labor Statistics. December 

27, 2006. http://www.bls.gov/opub/cwc/cm20061213ar01p1.htm (accessed August 11, 2010). 

newsletters and quarterly reports on investment performance. In addition, for the 

defined contribution plan, we currently offer asset allocation guidance through 

Morningstar. We have hesitated to offer more robust advice in the form of investment recommendations, contribution increases and rebalancing due to the uncertainty of the regulations regarding advice services. Nearly 30% of our associate population is considered ‘‘engaged achievers’’ (more experienced and well-established 

participants who are interested and involved in retirement planning) or ‘‘aspiring 

planners’’ (associates who have a high interest in retirement planning and are willing to contribute to their accounts more than the average). A full 33% are considered ‘‘uninvolved savers’’—associates who lack the interest or the time for retirement planning. 

Challenges in the Regulatory System 

In general, greater regulation often leads to greater administrative complexities 

and burdens. Such regulatory burdens can often discourage plan sponsors from establishing and maintaining retirement plans. The following are just a few examples 

of these regulatory disincentives. 

Notice and Disclosure. Plan sponsors are faced with two increasingly conflicting 

goals—providing information required under ERISA and providing clear and 

streamlined information. In addition to required notices, plan sponsors want to 

make information available that is pertinent to the individual plan and provides 

greater transparency. However, this is difficult given the amount of required disclosures that currently exist. Although there is usually a good reason for every notice 

or disclosure requirement, they have a tendency to overwhelm the participants with 

information, making it difficult for them to distinguish the routine notices, e.g., 

summary annual reports, from the important information. It is critical that Congress coordinate with the agencies and the plan sponsor community to determine 

the most effective way to streamline the notice and disclosure requirements. 

Accounting Rules. In 2006, the Financial Accounting Standards Board (‘‘FASB’’) 

undertook a project to reconsider the method by which pensions and other benefits 

are reported in financial statements.7 They completed Phase I of the project but delayed Phase II, which would have removed smoothing periods from the measure of 

liabilities, until a later date. After significant concerns raised by the plan sponsor 

community, FASB indefinitely postponed the implementation of Phase II. 

Accounting changes from FASB can create worry for plan sponsors. These changes 

can and have had significant ramifications for businesses—impacting credit determinations and loan agreements—without having any impact on the actual funding 

of the plans. This can discourage participation in the employer-provided retirement 

system and has had a significant impact on the long term prospects of providing 

post-retirement medical plans for new and existing participants. 

Current Trends in Retirement Plans—The Shift from DB to DC Plans 

The number of defined benefit plans has been declining over the past several 

years.8 While there has been a shift away from defined benefit plans, the number 

of defined contribution plans has increased exponentially. Since 1975, the number 

of defined contribution plans has almost quadrupled from 207,748 to 658,805 in 

2007.9 In 1992-93, 32 percent of workers in private industry participated in a defined benefit plan, while 35 percent participated in a defined contribution plan.10

According to the 2008 National Compensation Survey, the participation for private 
23 

11 ‘‘Percent of Workers in Private Industry With Access to Retirement and Health Care Benefits by Selected Characteristics: 2008’’, Bureau of Labor Statistics, http://www.census.gov/compendia/statab/2010/tables/10s0639.pdf (Accessed August 11, 2010). 

industry workers in defined benefit plans decreased to 21 percent, while participation in defined contribution plans increased to 56 percent.11

The reasons for this shift are numerous: cost considerations; changing demographics of the workforce; uncertainty surrounding future liabilities associated with 

a defined benefit plan; and a sense that workers undervalue these plans, among 

other things. 

Ingram implemented a money purchase plan for a certain segment of our employee population in 2007. This was in response to the need to ‘‘replace’’ the defined 

benefit plan, which was closed to new hires in 2005, due to recruiting and retention 

concerns. Under this plan, Ingram makes an annual contribution to associates based 

on a formula that uses age, years of service and compensation. 

Nonetheless, there is still a great need and desire for some of the characteristics 

of the traditional defined benefit plan. In many instances, employers like us are 

freezing or terminating the defined benefit plan while adding features to the defined 

contribution plan that resemble the benefits of the old plan. For example, employers 

are adding annuity options to their defined contribution plans. Moreover, new defined contribution plan designs are being introduced that incorporate defined benefit 

features. Consequently, while the names and designs may end up being different, 

it is very possible that many of the features that are now in the defined benefit system will continue to be an important part of the private retirement plan landscape. 

In Ingram’s money purchase plan, contributions are invested in a life path fund depending on the associates year of birth. This, along with annuity options, is intended to create a ‘‘defined benefit-like’’ retirement plan for associates. 

The keys to ensuring the continuation of the private retirement system are flexibility and predictability. The mix of types of benefit plans in the future will be diverse—defined benefit, defined contribution, multiemployer, cash balance, and hybrid plans. In addition, demographic and competitive needs will spur the creation 

of plan designs that we have not even begun to contemplate. Consequently, it is increasingly important to ensure that there are no statutory, practical, or political 

barriers to innovation that would discourage participation in the private retirement 

system. 

Conclusion 

The challenges facing plan sponsors are numerous. As stated before, these challenges impact not only the employer but also the retirement security of current and 

future retirees. I hope that Congress continues to work with plan sponsors to enact 

legislation that will further encourage participation in the employer-provided system 

and ‘‘keep them in the game’’. I thank you for the opportunity to testify today and 

look forward to any questions you may have. 

Chairman ROE. Thank you, Mr. Delaney. 

Mr. Richtman. 

STATEMENT OF MAX RICHTMAN, ESQ., EXECUTIVE VICE 

PRESIDENT/ACTING CEO, NATIONAL COMMITTEE TO PRESERVE SOCIAL SECURITY AND MEDICARE 

Mr. RICHTMAN. Mr. Chairman, members of the committee, on behalf of over 3 million supporters of the National Committee to Preserve Social Security and Medicare, I am honored to be here to testify. Our members come from all walks of life and every political 

persuasion. About one-third identify themselves as Democrats, onethird as Republicans, and the remaining third are unaffiliated with 

a political party. What unites them is their passion for protecting 

and strengthening Social Security and Medicare, not just for themselves but for their children and grandchildren. 

It is critical that any discussion about retirement security include Social Security and Medicare, because these two programs 

form the linchpin of most Americans’ retirement. About 54 million 
24 

individuals receive Social Security benefits today, including 37 million retirees, and these benefits are modest. The average retiree receives about $14,000 in Social Security benefits each year, women 

receive about $12,000. 

Yet today’s retirees are heavily dependent on these benefits. 

About one-third have no other income besides Social Security and 

two-thirds rely on Social Security for more than half of their retirement income. Younger generations are likely to be just as dependent on Social Security as their parents and grandparents. Just over 

one-half of the workforce has access to any kind of retirement plan 

at work and only about half of these people choose to participate. 

And those individuals who do participate in a retirement plan increasingly must do so within the context of a defined contribution 

plan rather than a defined benefit plan. 

Unfortunately, defined contribution plans place the burden of investment and risk management on individuals. Even in the best of 

times, defined contribution plans only work if individuals are able 

to save substantially, make good investment decisions and retain 

their savings until needed for retirement, as well as develop a retirement drawdown plan that assures a continuous stream of income for the remainder of their lives. 

The second major pillar of retirement security for today’s retirees 

is Medicare. Prior to the creation of Medicare, millions of retirees 

had no health insurance and what insurance existed was very expensive. Private insurance companies shunned older people because they tended to have more expensive claims. 

Today little has changed in the private market. Private companies who participate in the Medicare Advantage Program are paid 

about 10 percent more than it would cost traditional Medicare to 

cover these same seniors. Without Medicare, health care would be 

unattainable or unaffordable for millions of seniors. 

Even with Medicare, health care costs represent a significant 

portion of a retiree’s income. About 30 percent of the average senior 

Social Security check is spent on Medicare out-of-pocket costs for 

Medicare part B and D alone, and this percentage is expected to 

grow to almost 50 percent by the year 2085. 

Social Security and Medicare help keep low-income workers out 

of poverty, and they provide critical support for middle-class workers who do not earn enough during their working lives to finance 

decades of living in retirement. This helps explain their enduring 

popularity, and it explains why Americans are so unwilling to bet 

their futures on risky schemes to dramatically restructure these 

programs. 

President Bush discovered this when he proposed allowing workers to divert a portion of their payroll taxes into Social Security private accounts in 2005. Although they knew the Bush plan would 

not affect them, seniors spoke out to preserve the program for their 

children. Likewise, seniors around the country clearly oppose plans 

to privatize Medicare and convert it into a voucher program. 

As you know, under the House budget resolution workers age 54 

and younger today would purchase their health insurance from private companies and be given a voucher or premium support payment to cover a portion of these costs. These dramatic changes in 
25 

Medicare will shift trillions of dollars of costs onto future beneficiaries. 

According to the CBO, the cost of purchasing insurance from private companies will more than double a retiree’s out-of-pocket costs 

in the first year, and the voucher used to subsidize the premiums 

will grow more slowly than health inflation, further reducing the 

value of the Federal contribution. 

According to the Center for Economic Policy Research, the impact 

of these changes, as the ranking member has stated, will be that 

a 54-year-old will need to save an additional $182,000 during the 

next decade to afford Medicare. 

Younger people, just entering the workforce, will need to save 

more than $640,000 through their working lives to afford these additional costs. And because these benefits will no longer be guaranteed, it is unclear what kind of health care coverage this extra 

money will buy. 

Mr. Chairman, the National Committee strongly supports enhancing retirement security for American workers, but we do not 

believe this can be accomplished by privatizing Social Security, 

Medicare or cutting benefits. 

Mr. Chairman, I know my time is up, but I wanted to thank you 

for your legislation on the Independent Payment Advisory Board. 

As you know, we have come out strongly for your legislation. We 

feel that process is the wrong way to go, and we are working hard 

to garner additional support. 

[The statement of Mr. Richtman follows:] 

Prepared Statement of Max Richtman, Executive Vice President and Acting 

CEO, National Committee to Preserve Social Security and Medicare 

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE: On behalf of over 3 million 

members and supporters of the National Committee to Preserve Social Security and 

Medicare, I am honored to testify here today. 

Our members come from all walks of life and every political persuasion. About 

one third identify themselves as Democrats, one third as Republicans, and the remaining third are unaffiliated with a political party. What unites them is their passion for protecting and strengthening Social Security and Medicare—not just for 

themselves, but for their children and grandchildren. 

It is critical that any discussion about Retirement Security include Social Security 

and Medicare—because these two programs form the lynchpin of most Americans’ 

retirement. About 54 million individuals receive Social Security benefits today, 

including37 million retirees. 

These benefits are modest. The average retiree receives about $14,000 in Social 

Security benefits each year. Women receive about $12,000. Yet today’s retirees are 

heavily dependent on these benefits. About one-third have no income other than Social Security, and two-thirds rely on Social Security for more than one-half of their 

retirement income. 

Younger generations are likely to be just as dependent on Social Security as their 

parents and grandparents. Just over one-half of the workforce has access to any 

kind of retirement plan at work, and only about one-half of these workers choose 

to participate. 

And those individuals who participate in a retirement plan increasingly must do 

so within the context of a defined contribution plan, such as a 401(k), rather than 

in a defined benefit pension plan. Unfortunately, defined contribution plans place 

the burden of investment and risk management on individuals. Even in the best of 

times, defined contribution plans work only if individuals are able to save substantially, make good investment decisions, retain their savings until needed for retirement, and develop a retirement drawdown plan that assures a continuous stream 

of income for the remainder of their lives. 

The second major pillar of retirement security for today’s retirees is Medicare. 

Prior to the creation of Medicare, millions of retirees had no health insurance, and 
26 

what insurance existed was very expensive. Private insurance companies shunned 

older people because they tend to have expensive claims. 

Today, little has changed in the private market. Private companies who participate in the Medicare Advantage program are paid about 10% more than it would 

cost traditional Medicare to cover the same seniors. Without Medicare, health care 

would be unattainable or unaffordable for millions of seniors. 

Even with Medicare, health care costs represent a significant portion of a retiree’s 

income. About 30% of the average seniors’ Social Security benefit is spent on Medicare out-of-pocket costs for Medicare Parts B and D alone. This percentage is expected to grow to almost 50% by 2085. 

Social Security and Medicare help keep low-income workers out of poverty in retirement. And they provide critical support for middle-class workers who do not earn 

enough during their working lives to finance decades living in retirement. This 

helps explain their enduring popularity. And it explains why Americans are so unwilling to bet their futures on risky schemes to dramatically restructure them. 

President George W. Bush discovered this when he proposed allowing workers to 

divert a portion of their payroll taxes into Social Security private accounts in 2005. 

Although they knew the Bush plan would not affect them, seniors spoke out to preserve the program for their children. Likewise, seniors all around the country oppose plans to privatize Medicare and convert it into a voucher program. 

As you know, under the House budget resolution workers age 54 and younger 

today would purchase their health insurance from private companies, and be given 

a voucher—or premium support payment—to cover a portion of their costs. 

These two dramatic changes in Medicare will shift trillions of dollars of costs onto 

future beneficiaries. According to the Congressional Budget Office, the cost of purchasing insurance from private companies will more than double a retiree’s out-ofpocket costs in the first year. And the vouchers used to subsidize the premiums will 

grow more slowly than health inflation, further reducing the value of the federal 

contribution over time. 

According to the Center for Economic and Policy Research, the impact of these two changes will be that a 54-year old will need to save an additional $182,000 during the next decade in order to afford Medicare under the Ryan plan. Young people 

just entering the workforce will need to save more than $640,000 extra through 

their working lives to afford the additional costs. And because benefits will no 

longer be guaranteed, it is unclear what kind of health care coverage this extra 

money will buy. 

Mr. Chairman, the National Committee strongly supports enhancing retirement 

security for America’s workers. But we do not believe that can be accomplished by 

privatizing Social Security or Medicare, or by cutting benefits. 

Thank you. 

Chairman ROE. Thank you. Thank you, Mr. Richtman. 

Mr. Klein. 

STATEMENT OF JAMES KLEIN, PRESIDENT, 

AMERICAN BENEFITS COUNCIL 

Mr. KLEIN. Mr. Chairman, Congressman Andrews, members of 

the subcommittee, thank you so much for the opportunity to testify 

today. There are many positive features of the employer sponsored 

retirement system, and I do sincerely hope that you ask me some 

questions about them during that period of the hearing. 

But since the hearing is really about the challenges facing the retirement system, and I only have 5 minutes, I hope you will indulge me if I use my time to cite five of our principal concerns. 

First, there are multiple agencies with regulatory authority over 

the retirement system. The Department of Labor, the Department 

of Treasury and the IRS, Pension Benefit Guaranty Corporation, 

the Securities and Exchange Commission, now the Commodity Futures Trading Commission. While this multi-agency system may be 

unavoidable, it does put significant responsibility on those agencies 

to harmonize their initiatives so that regulatory requirements are 

not duplicative, inconsistent, or, even worse, contradictory. 
27 

An example of this are the proposed Commodity Futures Trading 

Commission business conduct rules issued pursuant to the DoddFrank financial reform law that will, if followed, force certain parties to violate the fiduciary standards of ERISA that obviously fall 

within the jurisdiction of this committee. 

Second, Congress needs to assert greater oversight on agencies 

that issue regulations that are clearly inconsistent with legislative 

intent. An example of this relates to hybrid convention plans. The 

statute requires interest crediting rates not to exceed a market rate 

of return. The proposed Treasury-IRS rules specify a certain interest rate and state that any other higher interest rate will violate 

the law. So even if the plan is able to get a higher rate in the market, it cannot use it. This will force employers to reduce the rate 

at which it credits plan accounts to the obvious detriment of plan 

participants. 

Third, agencies need to give adequate time to comply with new 

rules. The Department of Labor recently announced an extension 

of the applicability date for new rules governing fee disclosure between service providers and employer plan sponsors. And the DOL 

is also extending the corresponding transition period for employers 

to comply with a separate set of finalized rules governing disclosure of fees to participants. 

We appreciate very much the recognition by the Department of 

Labor to extend the date, but the problem here is twofold. The final 

rules regarding the service provider to plan sponsor disclosures 

have not yet been sent to the Office of Management and Budget. 

So it seems very likely that they could come out very close to the 

end of the year, at which time both service providers and plan 

sponsors are going to have to be scrambling to comply. 

Moreover, and ideally, a new set of separate revised rules on 

electronic disclosure of information should really be effective before 

the effective date of the rules governing fee disclosure to plan participants, since those new requirements are going to cause a vast 

amount of information to have to be provided to millions of plan 

participants. But it seems highly unlikely that this will happen 

given the timing of the rules being issued. 

Fourth, clearly, plan sponsors need to be held to an appropriate 

standard of care in handling their various government reporting 

functions. But when employers are faced with significant additional 

premiums for what are obviously innocent mistakes, it really undermines their willingness to continue sponsoring a plan. 

An example of this is where the PBGC has required additional 

premiums from companies that actually paid the correct amount of 

the premium on time but made a simple clerical error when submitting the premiums through the PBGC’s new electronic submission system. The agencies are not so flawless in all of their operations that they should be so unforgiving of an inadvertent error 

that did not even affect the agency receiving the correct payment 

in a timely fashion. 

Fifth, plan sponsors need predictability. Employers know that 

sponsoring a pension plan will be a costly endeavor and for the 

most part they are okay with that if they can plan accordingly. But 

when they are required to implement funding rules, such as those 

prescribed under the Pension Protection Act that are highly sen-
28 

sitive to minor changes in interest rates or minor changes in the 

stock market, it leads to a level of volatility that erodes the ability 

of employers to continue sponsoring plans, especially during tough 

economic times. 

Finally, I must share that employers are very concerned that in 

the effort to reduce the Federal deficit, Congress may look to the 

tax expenditure for employer-provided retirement plans that is estimated to be $112 billion in fiscal year 2011 and yet overlook the 

fact that providing incentives to employers and workers to save for 

retirement is a lower cost way of providing a needed level of personal financial security than through expanded public programs. 

For every dollar of tax expenditure, a plan provides about $5 worth 

of benefits. 

Because members of the Education and the Workforce Committee 

inherently understand the value of employer sponsored retirement 

plans, you are especially well positioned to be a voice within the 

forthcoming budget debate on the need for tax policy to support, 

not erode, employer plans and retirement savings. 

Thank you very much. 

[The statement of Mr. Klein follows:] 

Prepared Statement of James A. Klein, President, 

American Benefits Council 

Chairman Roe, Ranking Member Andrews, and Members of the Subcommittee, I 

am grateful for the opportunity to appear before you on this critically important 

topic. My name is James Klein and I am President of the American Benefits Council. The Council is a public policy organization representing principally Fortune 500 

companies and other organizations that assist employers of all sizes in providing 

benefits to employees. Collectively, the Council’s members either sponsor directly or 

provide services to retirement and health plans that cover more than 100 million 

Americans. 

My testimony today will cover three areas. First, I will briefly contextualize the 

critical role employers play in ensuring a secure retirement for American workers. 

Second, I will identify regulatory developments that threaten to undermine that 

role, potentially prompting some employers to discontinue or scale back their existing retirement plans, while chilling other employers from adopting new retirement 

plans. Finally, I will discuss the importance of maintaining the established tax incentives both for employers to promote workplace plans and for employees to contribute to them. 

(1) The voluntary system for workplace savings plans 

I believe it would be useful to set the stage by briefly reviewing the scope of our 

voluntary system for workplace savings plans. According to the Bureau of Labor 

Statistics, just over half of all workers in the private sector participated in an employer-sponsored retirement plan of some kind in 2007. In particular, only one in 

five private-sector workers participated in a traditional pension (i.e., a defined benefit plan), while about two in five participated in 401(k) and other defined contribution plans. Meanwhile, upwards of two in five private-sector workers had no opportunity whatsoever to participate in a retirement savings plan at work. 

There are many recognized advantages of ‘‘qualified’’ plans offered at the workplace. Employers bring unique advantages to bear for employees when it comes to 

retirement savings and income: noncontributory plans that benefit employees who 

cannot afford to contribute; matching contribution arrangements that create enormous incentives to save; educational services underscoring the importance of savings; bargaining and purchasing power; economies of scale; fiduciary decision-making and oversight; and access to beneficial products and services. Employers are also 

in a strong position to know the retirement needs of their employee populations and 

can tailor retirement programs to these needs. 

In short, employers play an important role in promoting a secure retirement for 

America’s workforce. But given the voluntary nature of employer plans, policymakers must seek to support employers in facilitating and, where feasible, financing 

retirement income for employees. In particular, policymakers should recognize that 
29 

providing retirement benefits is not the core business mission of employers. In today’s globally competitive marketplace, employers are increasingly sensitive to the 

costs, risks, and potential liabilities of all their activities. Government policies that 

raise the costs, risks, and potential liabilities associated with retirement plan sponsorship jeopardize the employer commitment to providing retirement benefits. This 

danger is present for employers of all sizes. But given the importance of expanding 

workplace retirement plan coverage for individuals who lack it, policymakers should 

be particularly sensitive to the effect of such increased costs, risks, and potential 

liabilities on small employers and on their willingness to initiate employer-sponsored retirement plans for their workers. 

(2) Regulatory complexity and burdens 

This brings me to my second point: In recent years, the regulation of employee 

benefit plans has grown considerably, and the employee benefits field has become 

an area of the law that is well-known for its complexity and burdensome regulatory 

regime. To be sure, plan sponsors appreciate the importance of rules that are appropriately protective of plan sponsors’ and participants’ interests. But those interests 

are not well-served when requirements are unnecessarily broad and overly burdensome. Rather, the government should establish a coordinated legal and regulatory 

regime under which individual savers and employer plan sponsors can operate effectively. 

To achieve these objectives, regulatory activity must be well-coordinated across all 

agencies of jurisdiction to avoid conflicting or inconsistent guidance and enforcement. President Obama acknowledged the critical importance of this principle and 

of avoiding such regulatory conflicts in his January 18, 2011, executive order on Improving Regulation and Regulatory Review. Yet current examples of inconsistent 

guidance abound, particularly between the Department of Labor’s current proposed 

regulations redefining the term fiduciary, and various regulations proposed by the 

Commodity Futures Trading Commission and the Securities and Exchange Commission under the Dodd-Frank Wall Street Reform and Consumer Protection Act. On 

January 18, 2011 the President issued an Executive Order emphasizing the importance of agency coordination. This means far more than agencies letting each other 

know about regulatory projects being developed. In the President’s words, coordination means ‘‘harmonizing rules’’ and avoiding ‘‘inconsistent’’ or ‘‘overlapping’’ rules. 

Such coordination among the Department, the SEC, and the CFTC is essential. The 

critical need for coordination with the CFTC is discussed further below 

Moreover, compliance burdens on employer plan sponsors can be unreasonably 

magnified by requiring employers to comply first with statutory provisions and subsequently with regulations that articulate an interpretation of the statute that differs substantially from a good faith reading. The hybrid plan provisions of the Pension Protection Act of 2006 (PPA) are one example of this burdensome phenomenon. 

For example, the Pension Protection Act of 2006 prohibited cash balance plans and 

other hybrid plans from crediting interest at an above market rate. Treasury has 

issued proposed regulations that are clearly inconsistent with the statute and that 

expressly prohibit the use of thousands of interest crediting rates available in the 

market. Accordingly, these proposed regulations would force countless substantial 

plan modifications, as well as causing a very substantial portion of the cash balance 

plans in the country to reduce benefits. 

This is but one example of a regulatory interpretation that was issued many years 

subsequent to the effective date of the statutory provision and bears limited resemblance to the plain meaning of the statute. As a result, plan sponsors face costly 

and unexpected compliance changes, some of which require substantial plan redesigns. Regulations should be crafted with an eye to effecting legislative intent while 

limiting and mitigating the unintended consequences for plan administration and 

plan benefits. 

I would like now to turn to some specific developments that evidence this trend 

toward increased regulation, uncoordinated regulations, and undue burdens on employers who are trying to do the right thing for their workers by providing retirement plans. 

(a) Definition of the term ‘‘fiduciary’’ 

In October, the Department of Labor proposed regulations on the definition of the 

term ‘‘fiduciary’’ under the Employee Retirement Income Security Act (ERISA). The 

proposed regulations would set aside the rule that has defined the term for 35 

years. We understand the Department’s desire to update and improve the definition, 

and we agree that the employer community would benefit from rules that establish 

clear lines between fiduciary advice, on the one hand, and non-fiduciary education, 

marketing, and selling on the other hand. But the proposed regulations create too 
30 

broad a definition of fiduciary. We are very concerned that an overly broad definition would actually have a very adverse effect on retirement savings by inhibiting 

investment education and guidance for plans and participants, raising costs, and 

shrinking the pool of service providers willing to provide such investment education 

and guidance. 

There has been some perception that the concerns related to the proposed regulations only relate to service providers, and primarily involve IRAs. That is not the 

case. The proposed regulations raise very serious issues for plan sponsors. 

‘‘May be considered’’ standard. Under the proposed regulations, an individual can 

become a fiduciary solely by reason of providing casual investment information that 

‘‘may be considered’’ by the recipient. Assume, for example, that a plan participant 

has consulted with an advisor and has decided tentatively to invest in a group of 

investment options available under the plan. As a last-minute check, the individual 

asks a colleague in the employer’s human resources department if the participant’s 

fund selections make sense for an individual in her situation. The human resources 

employee says he is not an expert but the choices make sense to him and are consistent with what many others are doing. Under the regulation, that casual reaction 

is fiduciary advice. Similarly, if the participant were to ask a call center operator 

the same question, any answer would be investment advice. But neither interaction 

is really investment advice. An ERISA fiduciary relationship is a very serious relationship with the highest fiduciary standard under the law. In that context, fiduciary status should not be triggered by casual discussions but only by serious communications that reflect a mutual understanding that an adviser/advisee relationship exists. 

If the proposed rule were finalized, plan sponsors may need to inform human resources departments and call centers never to discuss investments in any manner. 

This would hurt and frustrate participants, which is the last thing that plan sponsors want to do. Nor would that be a positive development from a policy perspective. 

Plan sponsor employees. It is, of course, common for a plan sponsor to form a committee of senior executives to oversee plan issues, including plan investment issues. 

It is certainly clear that such committee has fiduciary status. But under the proposed regulations, large numbers of middle-level employees who frame issues and 

make recommendations for senior employees to consider would also be fiduciaries. 

If all of these employees were fiduciaries, the effects would be severely negative. For 

example, the cost of fiduciary insurance would skyrocket, if such insurance would 

be available at all for such employees. These costs would ultimately be borne by participants in the form of higher costs and lower benefits. 

Plan investment menus. Today, one of our greatest challenges in the retirement 

security area is broadening retirement plan coverage among small businesses. Small 

businesses will generally adopt a retirement plan only if the process is simple and 

inexpensive. In this context, imagine the hardware store owner who would like to 

adopt a plan for his 12 employees. Assume that the service provider presents its 

menu of 300 investment options, provides objective data regarding all 300, and tells 

the hardware store owner (1) to decide how many options to offer and (2) to pick 

the right options for his employees, subject to fiduciary liability if he picks imprudently. Alternatively, the hardware store owner can find some independent consultants, interview them, choose one (subject to fiduciary liability), and pay that consultant a substantial amount of money to pick and monitor the plan menu. 

Needless to say, if that is the message that the hardware store owner receives, 

he will not adopt a plan for his employees. Yet under the proposed regulations, if 

the service provider did anything more to help the hardware store owner, the service provider would be deemed a fiduciary. So if the rule set forth in the proposed 

regulations is finalized in its current form, we are likely to see a marked decline 

in retirement plan coverage. 

Service providers need a way to provide employers with help in choosing the plan 

menu so that the process is simple and inexpensive. For example, the service provider may screen funds based on objective criteria that are provided by the plan fiduciary or that are commonly used in the industry. 

Valuation. We believe that the proposed regulation’s application of fiduciary status attributable to the provision of valuation services is overly broad and needs to 

be reconsidered. First, it would sweep in countless routine valuations, such as valuing annuity contracts for purposes of determining required minimum distributions. 

Second, even in the areas that are the object of the Department’s express concerns— 

such as ESOP valuations—the nature of the fiduciary duty needs work. The Department wants to ensure an objective valuation. A fiduciary advocates for participants; 

a fiduciary is precluded by law from being objective. 

Management of securities. Under the proposed regulations, advice regarding the 

management of securities constitutes investment advice. This raises serious issues 
31 

for plan sponsors. For example, assume that a plan decides to change trustees and 

begins negotiating a trust agreement with the new trustee. The trustee is involved 

in the ‘‘management’’ of plan assets, and the terms of the trust agreement affect 

that management. Are all of the plan sponsor’s legal and compliance personnel fiduciaries by reason of working on the trust agreement? Under the proposed regulations, the answer is yes. This will cause the cost of trust agreements and many 

other routine plan actions to increase exponentially with the imposition of new duties and large potential liabilities. 

What about the persons working on the agreement for the new trustee? If such 

persons make any ‘‘recommendations’’ to the plan in the course of negotiations, they 

would become fiduciaries because the seller exemption, on its face, only appears to 

apply to sales of property and not services. Any such recommendations would thus 

trigger fiduciary status and corresponding prohibited transactions. 

There are many similar examples. To avoid such inappropriate results and enormous new costs and burdens on plan sponsors, the proposed regulations need significant modification. 

Legal and other non-investment advice. Assume that ERISA counsel advises the 

plan that entering into a swap with a particular dealer would raise prohibited transaction issues and counsels the plan not to enter into the swap for that reason. 

Under the proposed regulations, that would clearly constitute investment advice, 

making the ERISA attorney a fiduciary. Again, this is an unworkable result for plan 

sponsors who need to be advised on compliance issues. 

In sum, the increased cost and confusion attributable to the proposed regulation 

is a source of significant concern for our plan sponsors. The Council and many other 

organizations representing employers have communicated these concerns to the Department of Labor. We appreciate the support we have received from many Members of Congress, and hope that on a bipartisan basis Members of Congress will continue to join us in warning the Department of the dangers inherent in an overly 

broad proposal that does not fully take account of ramifications that could raise 

costs or otherwise chill employers from offering plans in the first place. 

(b) Electronic disclosure 

ERISA requires the extensive provision by plan sponsors of reports, statements, 

notices and other documents. Unfortunately, current regulations severely restrict 

the circumstances in which email and other paperless means of communication can 

be utilized. The regulations contemplate the use of electronic media only if a participant either (i) uses an electronic network (e.g., a computer or a smart phone) as 

an integral part of his or her duties as an employee, or (ii) affirmatively consents 

to receiving documents electronically in a manner that demonstrates the ability to 

access electronic disclosures. This standard severely restricts the use of email as a 

means of communication for many categories of employees and former employees, 

even in circumstances where the employer has email addresses and routinely uses 

email or other electronic disclosure for other forms of communication. As a result, 

the multitude of notices and statements that plan administrators must provide to 

plan participants and beneficiaries are typically provided through labor intensive 

and costly paper media. 

There are enormous potential cost savings that would benefit participants, beneficiaries, employers and the environment if the existing regulation were revised to 

more broadly accommodate electronic communication, including use of home computers and personal cell phones or internet connections. We appreciate that not 

every participant or beneficiary has access to a particular system, but believe that 

these participants can be accommodated through rules that allow participants to opt 

out of electronic delivery and request paper copies of the relevant materials. 

DOL recently instituted a Request for Information Regarding Electronic Disclosure by Employee Benefit Plans. We appreciate DOL’s initiation of this project, as 

we believe that appropriate electronic disclosure is a more user-friendly, efficient, 

and cost-effective means of providing necessary information to plan participants and 

beneficiaries and is a method that is more popular with participants and beneficiaries. Effective electronic communications can enhance the disclosures for the 

majority of participants while protecting their rights and ensuring that those who 

still wish to receive paper notices are entitled to receive them upon request. 

More specifically, we strongly believe that a current Department of Labor rule in 

effect with respect to benefit statements would work very well for all communications. Under that rule, a plan posts information on a secure website, informs participants by non-electronic means of the availability of the information on such website, 

and also informs participants of their right to receive paper notices. This structure 

is very protective of participant rights, is very efficient, and is very effective in offering participants the best way to find what they need whenever they need it. 
32 

In this regard, we believe that it is critical that all agencies whose rules affect 

plans adopt the secure website rule described above. I note that DOL’s current regulation differs materially from the electronic delivery standards of other regulatory 

agencies, including the Internal Revenue Service (IRS) and the SEC which share 

oversight responsibility for employee benefit plans with DOL. These different standards can be very frustrating and burdensome for employers who must comply, for 

example, with one set of standards in furnishing DOL-required notices, another 

standard in providing IRS-required disclosures, and a third standard in distributing 

SEC-required disclosures. Under the President’s Executive Order of January 18, discussed above, these standards should be harmonized. The Council recommends that 

the rules be harmonized by the uniform adoption of the secure website approach described above. 

(c) Use of Swaps 

Pension plans use swaps to manage interest rate risks and other risks, and to reduce volatility with respect to funding obligations. If swaps were to become materially less available to plans, plan costs and funding volatility would rise sharply. 

This would undermine participants’ retirement security and would force employers 

to reserve, in the aggregate, billions of additional dollars to address increased funding volatility. These reserves would have to be diverted from investments that create and retain jobs and that spur economic growth and recovery. 

In enacting the Dodd-Frank Wall Street Reform and Consumer Protection Act, 

Congress adopted ‘‘business conduct’’ standards to help plans and other swap 

counterparties by ensuring that swap dealers and major swap participants (MSPs) 

deal fairly with plans and other counterparties. However, the proposed regulations 

issued by the Commodity Futures Trading Commission under Dodd-Frank would actually have devastating effects on plans. 

The proposed business conduct standards would require swap dealers and MSPs 

to provide certain services to retirement plans and other plans governed by ERISA 

with respect to swaps (or potential swaps) with such plans. The required services 

would likely make the swap dealer or MSP a plan fiduciary under a regulatory definition of a fiduciary recently proposed by the Department of Labor (and under the 

current-law definition). For example, the proposed business conduct standards 

would require a swap dealer or MSP (1) to provide a plan with information about 

the risks of a swap, (2) to provide swap valuation services to a plan, and (3) to review a plan’s advisor. Each of these services would likely make the swap dealer or 

MSP a plan fiduciary under the DOL’s proposed regulations, and the third would 

make swap dealers or MSPs a fiduciary under current law. If a swap dealer or MSP 

is a plan fiduciary, it would be a prohibited transaction under ERISA for the swap 

dealer or MSP to enter into a swap with the plan. Thus, the proposed business conduct standards would likely require a swap dealer or MSP entering into a swap with 

an ERISA plan to violate ERISA. The only way to avoid this result is for all swaps 

with plans to cease, which would be devastating for plans, as discussed above. 

The interaction of the business conduct standards and the DOL’s definition of a 

fiduciary should be publicly and formally resolved in a legally binding way by the 

time the CFTC finalizes the business conduct standards. If the issue is not resolved 

before finalization of the business conduct standards, there would be an immediate 

chilling effect on all swap activity due to uncertainty regarding current and future 

DOL regulations. Accordingly, prior to finalization of either regulation, the CFTC 

and the DOL should jointly announce that no action required by the business conduct standards shall cause a swap dealer or MSP to be an ERISA fiduciary. 

Furthermore, under the proposed business conduct standards, if a swap dealer or 

MSP ‘‘recommends’’ a swap to a plan, the swap dealer or MSP must act ‘‘in the best 

interests’’ of the plan with respect to the swap. Under the proposed rules, many 

standard communications used by a swap dealer or an MSP in the selling process— 

such as ‘‘this swap may fit your interest rate hedging needs’’—would be a recommendation. In fact, it seems clear that the term ‘‘recommendation’’ would include 

information regarding plan risks that the business conduct standards require a 

swap dealer or MSP to provide to a plan. This means that swap dealers or MSPs 

acting solely as counterparties would be required to also act in the best interests 

of the plan. This is not possible and accordingly would likely cause all swaps with 

plans to cease. A swap dealer or MSP as a party to a swap transaction cannot have 

a conflicting duty to act against its own interests and in the best interests of its 

counterparty with respect to the swap. If a swap dealer or MSP clearly communicates to a plan in writing that it is functioning solely as the plan’s counterparty 

or potential counterparty, no communication by the swap dealer or MSP should be 

treated as a ‘‘recommendation.’’ 
33 

Finally, if a swap dealer or MSP is simply acting as a counterparty or potential 

counterparty with respect to a swap with a plan, the proposed business conduct 

standards require the swap dealer or MSP to carefully review the qualifications of 

the advisor advising the plan with respect to the swap, and to veto the advisor if 

appropriate. This rule is problematic for several reasons. First, there is no basis for 

this rule in the statute; under the statute, a swap dealer or MSP’s duties are fulfilled with respect to a swap with an ERISA plan if the swap dealer or MSP determines that the entity advising the plan is an ERISA fiduciary. Second, if swap dealers or MSPs can veto plan advisors, plan advisors could potentially be reluctant to 

negotiate in a zealous manner against a dealer, thus severely hurting plans. Third, 

swap transactions often need to happen quickly to effectively hedge plan risks; there 

is no time for investigations of advisors. Last, reviewing a plan’s advisor may well 

make a swap dealer or MSP a fiduciary of the plan, which, as discussed above, 

would in turn make the swap a prohibited transaction. If an ERISA plan represents 

to a swap dealer or MSP that the plan is being advised or will be advised by a fiduciary subject to the requirements of ERISA, the swap dealer or MSP should not be 

required, or permitted, to make any further inquiry to satisfy the statutory requirement. 

These issues pose a serious threat to the ability of defined benefit plans to manage risk. At a time when plan sponsors face enormous financial and regulatory challenges in maintaining a plan, we must ensure that new swap rules do not create 

a further disincentive to maintaining the plan. 

(d) PBGC disruption of normal business activities 

We would also like to express deep concerns regarding the PBGC’s proposed regulations under ERISA section 4062(e). First, the proposed regulations are not consistent with the statute. Under the statute, liability is triggered if ‘‘an employer 

ceases operations at a facility in any location’’. The proposed regulations do not follow the statute, which was clearly intended to be limited to situations where operations at a facility are shut down. Instead, under the proposed regulations, liability 

can be triggered where no operations are shut down and no employees are laid off, 

but rather operations are, for example, (1) transferred to another employer, (2) 

moved to another location, or (3) temporarily suspended for a few weeks to repair 

or improve a facility. The proposed regulations need to be revised to conform to the 

statute, so as not to disturb normal business transactions that are not within the 

intended scope of the statute and pose no risk to the PBGC. 

Moreover, the liability created by the proposed regulations can be vastly out of 

proportion with the transactions that give rise to the liability. For example, where 

a plan has been frozen for many years, a de minimis business transaction affecting 

far less than 1% of an employer’s employees can trigger hundreds of millions or billions of dollars of liability. This needs to be addressed. In addition, as noted, the 

proposed regulations would impose enormous liabilities on plan sponsors even in situations where a plan poses no real risk to the PBGC. There should be exemptions 

for small plans and for well-funded plans. The exemption for well-funded plans 

should be based on a plan’s funded status for funding purposes. If a company has, 

for example, little or no funding obligation with respect to a plan under the funding 

rules, it is inappropriate to impose large obligations on such company based on a 

theory that the obligations are needed to protect the PBGC. 

These proposed regulations would clearly hasten the demise of that system. By 

placing an enormous toll charge on plan sponsors that engage in normal business 

transactions, these proposed regulations would send a powerful negative message to 

those left in the defined benefit plan system. 

(e) PBGC premium filings 

We are also very concerned about a pattern that seems to be developing with respect to the PBGC’s review of premium filings. We are receiving repeated reports 

from our members that filings are being rejected and penalties are being imposed 

for reasons that seem unnecessarily rigid. 

In our view, the relationship between the PBGC and defined benefit plan sponsors 

should be a cooperative one that furthers the mission of the PBGC. The PBGC’s 

mission includes ‘‘encourag[ing] the continuation and maintenance of voluntary private pension plans for the benefit of their participants.’’ In that context, imposing 

large premium increases and penalties seems inappropriate in the case of conscientious sponsors that are trying to comply with the rules. 

Based on our members’ experience, we have numerous examples of this concern, 

but we will only highlight one here today. In the case of one of our members, the 

premium was paid on October 14th, the day before the deadline. The plan sponsor 

contacted the PBGC on October 15th to ensure that the payment had been received; 
34 

a PBGC representative confirmed orally that the payment had been made. Then on 

October 19th, the PBGC contacted the plan sponsor and said that the payment had 

been returned. Apparently, the plan sponsor had made a clerical error with respect 

to the account number. On the same day—October 19th—the plan sponsor made the 

full premium payment. 

This plan sponsor was assessed a large penalty and all of its requests for reconsideration have been denied. The PBGC stated in its second denial: ‘‘the payment failure was the result of a clerical error by the Plan and therefore does not meet reasonable cause. An oversight is not in keeping with ordinary business care and prudence.’’ 

It is very disturbing that the PBGC’s current position is that any oversight affecting timely payment is a cause for penalties. Regardless of the care used by the plan 

sponsor, any error apparently triggers penalties. We agree that there need to be incentives for plan sponsors to be conscientious and careful. But in order to be true 

to its mission, PBGC needs to balance that objective with the need not to act in a 

punitive way with respect to plan sponsors that make inadvertent errors despite 

clear evidence of an intent to comply. 

The above facts clearly demonstrate the plan sponsor’s conscientiousness does not 

matter under PBGC’s penalty system. If a plan sponsor makes any mistake affecting 

timely payment, penalties apply under PBGC’s current system. This is not the right 

answer. We strongly believe that inadvertent errors, such as clerical errors, that are 

made despite a clear intent to comply should not give rise to penalties. Any other 

position would simply be punitive and inconsistent with the PBGC’s mission. 

PBGC needs to review its filing program to ensure that filings are not rejected 

or subjected to penalties inappropriately. A failure to do so would just be one more 

reason—and a very preventable reason—for companies to leave the defined benefit 

system. 

(3) Essential tax incentives 

The U.S. retirement savings system successfully encourages individuals to save 

for retirement by providing tax incentives—typically income tax exclusions or deductions—for contributions to employer-sponsored defined contribution plans and IRAs, 

up to certain limits. This tax incentive structure is a fundamental pillar of our successful private retirement savings system. It provides a strong incentive for individuals at all income levels to save for retirement and encourages employers to sponsor 

plans that deliver meaningful benefits to Americans up and down the income scale. 

The current pre-tax treatment of retirement savings is a powerful incentive for 

individuals. It is viewed by taxpayers as the core of our retirement savings regime 

and allows them to save more on a paycheck-by-paycheck basis than would be the 

case with after-tax contributions. This financially efficient approach is particularly 

important for low- and middle-income families trying to make the most of scarce dollars. The payroll tax savings on employer contributions provides another significant 

advantage for modest-income households, as does the deferral on gains that spares 

families from annual tax bills on their accumulating savings. 

And current incentives efficiently produce retirement benefits. Repeated analyses 

have shown that, for every dollar of federal tax expenditure devoted to tax-preferred 

workplace retirement plans, four to five dollars in ultimate retirement benefits result. This extremely efficient catalyst produces a remarkable amount of benefits for 

workers and their families—in 2008, private employer retirement plans paid out 

$462 billion in benefits. 

Because the employer-sponsored retirement system is premised on its voluntary 

nature, tax incentives for contributions by employees are important in encouraging 

plan sponsorship. A move to a capped tax credit that provides a reduced tax benefit 

could discourage plan sponsorship. If sponsorship declines and more employees are 

forced to save on their own, they would not receive the many protections and benefits associated with employer-sponsored plans (from ERISA protection to fiduciary 

oversight—especially of investments and fees—to employer contributions). 

Employers play an important role in helping to facilitate the accumulation of retirement savings and income by American workers. We are proud of the role we 

have played and the unique advantages we can bring to bear when it comes to retirement savings and income. And we urge policymakers to support our role as employers in facilitating and, where feasible, financing retirement income for employees. 

Thank you for this opportunity to testify. 

Chairman ROE. I thank the panel for their testimony. Our first 

questioner will be Dr. Bucshon. 
35 

Mr. BUCSHON. Thank you, Mr. Chairman. I will make a couple 

comments. First of all, I am a physician and I assure you that I 

am very concerned about the future of American seniors and our 

current seniors, and I just want to go over and remind everyone 

that according to the recent Medicare trustees report that Medicare 

will be insolvent in 2024, and, again, that is not my opinion, that 

is the one that just came out from the Medicare trustees. 

And, with all due respect, I would like to have a request that the 

minority propose a solution, if they don’t like our solution, which 

was, by the way, modeled after what we have as Members of Congress and also was outlined in a Democrat report, the Breaux Commission in the 1990s, under President Clinton. 

The status quo under the Affordable Care Act will allow for severe cuts to seniors’ benefits in 2024 without action, and the only 

proposal to address the issue at all under current law is a 15-member board, IPAB, that will certainly result in significant slashes to 

Medicare funding at the time as we know that the number of people on Medicare will be doubling by 2030. 

So with that said, I have a couple of questions as it relates to 

the pension area. 

First of all, Mr. Brill, you mentioned that the trend in retirement 

security is toward offering more defined contribution plans, but 

people still don’t save. So to what extent can public policy help increase participation in voluntary retirement plans when it really is 

a matter of personal responsibility, and how do we promote sufficient savings for retirement for our American seniors? 

Mr. BRILL. Thank you, Congressman, for your question. As you 

indicated, there is a need for more workers to save and for those 

who do save to save more so that they have an adequate nest egg 

when they reach their retirement age. I don’t think that there is 

a single solution that can help us reach that goal, although I think 

that there are a set of policies that one could consider pursuing. 

As I mentioned in my testimony, auto enrollment, auto escalation 

policies have shown to be effective in getting more people enrolled 

and, in particular, getting people enrolled in DB—I am sorry—in 

DC plans sooner. And one of the keys to having an adequate retirement nest egg is starting when you are young and adopting both 

that mentality, the value of thrift, the value of savings, and putting 

those assets aside as early as possible so that they have the opportunity to accumulate. 

In addition, evidence from economists Olivia Mitchell and 

Annamaria Lussardi at Dartmouth College have found that there 

is an inadequate amount of financial literacy among many workers, 

particularly minorities and women, who are not well informed 

about the skills necessary and the appropriate levels of savings in 

order to have sufficient amounts of savings. 

I think that greater awareness, greater communication by employers to employees and other activities like that can help address 

some of those issues. 

Mr. BUCSHON. Okay, thank you. Mr. Delaney, we have heard 

some testimony that the Department of Labor regulations may reduce investment flexibility for pension plans. Can you discuss how 

important it is for both defined benefit and defined contribution 
36 

plans to have access to a wide range of investment products for our 

citizens? 

Mr. DELANEY. Well, I believe it is very important. First of all, as 

it relates to a predictability and being able to rely upon what the 

guidelines are from any particular piece of legislation, we certainly 

want to provide to our associates a broad range of investment opportunities through the DC plan. 

Certainly, if you were to speak with our Treasurer, he certainly 

wants to be able to talk with people that he deals with respect to 

investment options with respect to the DB assets. I would tell you 

that our associates have at this point 17 different investment opportunities in their defined contribution plan, and we spend a lot 

of time marketing those. They have online capability. We do a lot 

of things with them in terms of education and being able to provide 

them with opportunities to have a wide range of options based on 

their risk tolerance and their personal circumstance. 

Mr. BUCSHON. Thank you. I yield back. 

Chairman ROE. Mr. Andrews. 

Mr. ANDREWS. Thank you. I would like to thank the witnesses 

for their testimony. It did not disappoint. It was very good for everybody. Thank you. 

Mr. Brill, on page 7 of your testimony you cite a Boston College 

study that found that the financial crisis put the percentage of 

households at risk of not having sufficient post-retirement standard 

of living increased from 44 percent to 51 percent. So a lot of retired 

people in real trouble. 

I assume by ‘‘at risk’’ you mean that their incomes would either 

stagnate or not go up much and their costs would go up by a lot. 

Is that what ‘‘at risk’’ means? 

Mr. BRILL. The trigger for being at risk in the study was that 

one’s expected retirement income was more than 10 percentage 

points less than the targeted replacement rate. 

Mr. ANDREWS. Does it take cost into consideration at all, cost of 

living? 

Mr. BRILL. It does in the sense that it is considering income in 

real terms, not in nominal terms. 

Mr. ANDREWS. If someone’s retirement cost went up by $6,000 

because of increased out-of-pocket health care costs, do you think 

that would increase the number of senior households at risk? 

Mr. BRILL. Congressman Andrews, with regard to the Medicare 

issue, what I would note is the greatest concern that I have is the 

unsustainability of the current system. 

Mr. ANDREWS. Well, my greatest concern is the answer to my 

question. What I asked you was would it put more senior households at risk if their costs went up by $6,000 a year? 

Mr. BRILL. I think that what is important is that people have an 

awareness of the situation that they are in. If they have the opportunity to save that additional—— 

Mr. ANDREWS. Would they be aware if their out-of-pocket went 

up by $6,000 a year that they would be in more trouble; is that a 

fair statement? 

Mr. BRILL. Without warning? 

Mr. ANDREWS. Yes. 

Mr. BRILL. Without warning, yes. 
37 

Mr. ANDREWS. Well, with or without warning, I mean, say to 

somebody here is some news. A few years from now it is going to 

cost you 6,000 bucks a year more to live. Does the warning really 

do them any good if they don’t have the income? 

Mr. BRILL. If they have the opportunity to save, they can mitigate those concerns. 

Mr. ANDREWS. If they have the opportunity to save. But your 

own testimony says that there—the number of households who 

don’t have the opportunity to save and therefore at risk grew from 

44 percent to 51 percent because of existing economic conditions. 

So do you think they are going to have much of an opportunity to 

overcome that? 

Mr. BRILL. I would agree it is important to strengthen our retirement security programs, encourage more people to save, make 

more people aware of the need to save and facilitate their DC 

plans. 

Mr. ANDREWS. Now on page 8 of your statement you say Medicare, while recognized by some as an unsustainable program as 

currently constructed, lacks the bipartisan cooperation necessary to 

achieve meaningful savings. 

Is it true or false that the Affordable Care Act had $495 billion 

in Medicare savings in it? 

Mr. BRILL. I am sorry, could you repeat the question? 

Mr. ANDREWS. The Affordable Care Act, signed by the President 

last year, had $495 billion in Medicare savings in it; is that correct? 

Mr. BRILL. I believe that—I agree that the—— 

Mr. ANDREWS. And isn’t it also correct that the Republican budget resolution, in its baseline, assumed those $495 billion in savings 

for future budgets; is that correct? 

Mr. BRILL. I am not aware. 

Mr. ANDREWS. The record will show that it is. 

I want to talk about meaningful savings in Medicare. What do 

you think about if idea of permitting the Medicare administration 

to negotiate the price of prescription drug the way the VA does? 

There are projections, I think, Mr. Richtman’s organization projects 

that that could save $24 billion a year. Is that something we should 

do? 

Mr. BRILL. I don’t think that is a policy we should pursue. 

Mr. ANDREWS. Why not? 

Mr. BRILL. I am concerned about setting the prices in pharmaceuticals, because of the effect it may have on the development of 

new drugs. 

Mr. ANDREWS. Well, has the VA negotiating prices affected the 

development of new drugs? 

Mr. BRILL. The size of the VA market is smaller than the size 

of the retiree market. 

Mr. ANDREWS. So it is your position that we should have a law 

that says that the Medicare program should pay whatever the drug 

companies demand to be paid for prescription drugs? 

Mr. BRILL. That is not the current policy. 

Mr. ANDREWS. That is what the law says. They are prohibited 

from negotiating the drug prices, aren’t they? What’s the current 

policy? 
38 

Mr. BRILL. The current policy with regard to part B drugs is that 

Medicare reimburses what is referred to as ASP plus 6, the average 

sales price as set by the market. 

Mr. ANDREWS. Is CMS allowed to negotiate the price of the 

Coumadin pill that it buys? 

Mr. BRILL. No, they are not. 

Mr. ANDREWS. Well, that sounds to me like the present deal is 

you have got to pay whatever the industry demands. Do you think 

that is a good idea? 

Mr. BRILL. No, the current deal is that you are set to pay what 

the market demands, not what the industry sets. 

Mr. ANDREWS. But you can’t participate in the market by being 

a purchaser, you have to wait and see what everybody else does? 

I just think that is a meaningful Medicare savings you don’t seem 

to support. 

I yield back. 

Chairman ROE. I thank the gentleman. 

Dr. Heck. 

Mr. HECK. Thank you, Mr. Chair. This is for Mr. Delaney. We 

heard testimony about the lack of participation and extent of savings by employees in the plans that are available and that education is one of the ways that we can try to change that behavior. 

What obstacles do you face as an employer in providing that type 

of education, and what could be done to facilitate that process? 

Mr. DELANEY. Well, I think as an employer Ingram has done a 

very good job of getting information out to our associates. One of 

the things that would be a difficult situation for us is we have a 

very diverse workforce. We have individuals, for instance, who 

spend most of their time in a distribution center or individuals who 

spend most of their time on a tow boat. And so access to online 

communication is not readily available for those folks in the workplace for sure. And so we have to take a multifaceted view and 

strategy in terms of how we get information to them. 

We have provided, as I mentioned in my statement, retirement 

planning workshops, and we send a lot of direct mails to folks that 

we consider to be very, very effective. 

In terms of general education, we think that basically the environment today allows us to do what we need to do to get the word 

out to get people to save more and to participate in higher numbers. 

Mr. HECK. Is there any concern over liability with providing financial advice to your employees? 

Mr. DELANEY. Well, I would tell you that we go up to a certain 

line and not, in our opinion, not beyond that. We certainly don’t 

make advice in terms of what they should put money into. I mention that we use, for balancing purposes, Morningstar, a third 

party, to do that. 

But for the most part what we do is we educate. We tell people 

what their options are but we do not make, but we do not make 

judgments about their particular circumstances and what they 

should or should not do with respect to investment. 

Mr. HECK. Thank you, Mr. Chair. 

Chairman ROE. Mr. Kildee. 
39 

Mr. KILDEE. Thank you, Mr. Chairman. Mr. Richtman, the Paul 

Ryan Republican budget on Medicare indicates that it will affect 

only those age 54 and younger. Is that actually correct? 

Mr. RICHTMAN. Well, it clearly affects, in a dramatic way, as has 

been pointed out already today, those 54 and younger. But it also 

has a dramatic effect on current beneficiaries. 

Chairman Ryan’s proposal repeals the Affordable Care Act. The 

Affordable Care Act had some improvements that are very important for seniors. The well-known and well discussed donut hole is 

eliminated in the Affordable Care Act. That disappears under the 

chairman’s legislation. 

All of the improvements in preventive care that eliminated outof-pocket contributions for preventive care, that is gone in the 

budget that Chairman Ryan has proposed. 

So to simply say to seniors, don’t worry, this is not going to affect 

you, is completely inaccurate. 

Mr. KILDEE. So the concern, I have talked to others at home for 

about 9 days and talked primarily to senior citizens, and, being one 

myself, I generally see a lot of them. 

And so their concern is not just out of charity for the younger 

workers, but they look at their own financial situation and find difficulties created by the Ryan approach. 

Mr. RICHTMAN. That is absolutely true and, as Congressman Andrews pointed out, by dividing these two groups by age, it has an 

impact on the risk pool of older people, and it is virtually impossible to prevent an adverse impact because of those consequences 

on people currently on Medicare. 

Mr. KILDEE. Could we say, then, and I use this and heard it 

when I was back home in Flint, Michigan, Saginaw, Michigan, Bay 

City, Michigan, there were a lot of retirees, mostly General Motors 

or Delphi retirees, and we assume then that by keeping it in Medicare for this new program proposed by Mr. Ryan, is he using an 

assumed name for this new program? 

Mr. RICHTMAN. No. Technically, I suppose it could be Medicare. 

I have heard people at the town meetings I participated in with 

seniors, our members, call it coupon care. And, you know, they are 

okay with clipping coupons for groceries, but they are not too keen 

on coupons for purchasing their health care. 

Mr. KILDEE. And given, comparable to a food stamp, you have to 

go out and try to find the best bargain you can find? A lot of these 

people are very, quite old. I am 81 myself, I think I can still do that 

myself. I do it for the country, I hope I can do it myself. But a lot 

of these people are going to find it very difficult to have to shop 

around and look for the most appropriate policy for themselves. 

So I really think it is kind of a—they ought to be honest and 

name it something else because Medicare, from the time that Lyndon Johnson signed that into law, one of the greatest things since 

Franklin Roosevelt signed Social Security into law in 1935, Medicare means one thing to these older people. And what the shell 

game has done is put something else there and still call it Medicare. I myself would think that they should not use an assumed 

name for this new program. 

Thank you very much, and thank you for what you do. 

Mr. RICHTMAN. Thank you. 
40 

Chairman ROE. Dr. DesJarlais. 

Mr. DESJARLAIS. Thank you, Mr. Chairman. As I sit and listen 

to this discussion and as a family practice physician for the past 

18 years prior to coming to Congress, it certainly gives me pause 

to listen to the various testimony here today and listen to some of 

the discussions about Social Security and insolvency and Medicare 

and insolvency. I know a lot of folks who are in my age group, I 

am 47, for the past decade have wondered whether Social Security 

is even going to be there, whether Medicare is even going to be 

there and, you know, we don’t seem to be able to give them a real 

good answer. 

But, you know, Social Security back home, at least with my constituents, is something that the government has mismanaged, that 

they have handled irresponsibly, that they borrowed money from, 

and it has created a real problem with that certainty of what they 

will get and what they won’t get. 

As far as Medicare goes, you know, certainly as a physician, I 

don’t think that I have ever looked at treating a patient as treating 

a Democrat or a Republican. I just treated a patient. And I know 

that there is a lot of concern about where the health care is going 

to come from. 

But as far as just talking to the people in general and talking 

about the facts of Medicare on a bipartisan basis, we know for a 

fact that there are 10,000 new members entering Medicare every 

day. We know that in 1965, when Medicare was created, the average life expectancy of a male was 68 years. So the plan was designed to cover them for 3 years. Thankfully, through good medicine males are living at least 10 years longer and females 12 years 

longer. 

Unfortunately, the government didn’t account and adjust for 

that. The average couple pays into Medicare about a dollar for 

every $3 that comes out. 

So to look at Medicare and try to change the name of Medicare 

or call it something it is not is irrelevant to me. The bottom line 

is Medicare is going broke and it is going to be insolvent sooner 

than later. So the cost of doing nothing is to see to end to Medicare 

as we know it. 

So I just wanted to put that out there whether or not you are 

for or against some of the discussions that have been going on here. 

I know we can’t do nothing. 

And getting back to the topic at hand today, Mr. Klein, I wanted 

to ask you a question about the Department of Labor’s proposed 

amendment to the definition of fiduciary. It has created a lot of uncertainty in the plan’s sponsor and financial service community. 

You mentioned that you believe that some service providers 

would leave the market. Can you please how explain how this 

would negatively impact workers and retirees? 

Mr. KLEIN. Yes, thank you, Congressman, I think that the concern here is that the uncertainty around what kind of activity 

might be deemed to be a fiduciary act would scare away some service providers from providing information that would be very valuable to individuals and, you know, to their detriment. I think it 

was outlined at the very beginning in the opening statements how 
41 

extremely important it is that people have adequate retirement income. 

And, you know, I don’t think that, we are certainly not opposed 

to the idea of revisiting rules they have been around for 35 years, 

recognizing the vast changes that have been made in the financial 

marketplace. 

But a lot of the uncertainty, as I said, around various practices, 

has both service providers, as well as employers, and it should 

have participants also very concerned. 

Mr. DESJARLAIS. Thank you. We have heard that defined contribution plans are becoming more prevalent. What are some of the 

industry’s best practices that sponsors have taken to increase financial education and participation? 

Mr. KLEIN. Several interesting things. I think one of the most 

fascinating things that represents best practices is the application 

of behavioral economic concepts, the notion that different people respond to different types of incentives and different kinds of encouragement. 

So rather than a one-size-fits-all approach to education, there is 

actually a lot of fascinating work that is being done in terms of segmenting how to approach different people based upon their different age cohorts, their relationships to their coworkers and so 

forth. 

Other areas involve greater use of electronic means. That is one 

of the reasons that we are so interested in this. It is much easier 

for individuals to go on line to model their particular situation, to 

understand what it is that they might need, and then to seek the 

appropriate advice and so forth. So these are just a couple of examples. 

I guess I would cite one more. There is a lot of awareness that 

very often an employee’s spouse plays a significant role in helping 

make the decision around various investments. And so a lot of companies sponsor forums not just for their employees, but invite their 

spouses to come as well, so there could be a joint activity with 

greater results. 

Mr. DESJARLAIS. I see I am out of time. I thank the witnesses 

for their testimony. And I know that there are a lot of American 

people watching hearings like this, hoping that we get it right. So 

we have a lot of work to do. 

Thank you. I yield back. 

Chairman ROE. Thank you. Mr. Loebsack. 

Mr. LOEBSACK. I do applaud having this hearing on retirement 

issues. I should state that at the outset. I think it is really, really 

critical, especially when we hear things that young people don’t 

think that Social Security is going to be there for them, when we 

have been talking about the so-called Ryan budget and ending 

Medicare, in effect. 

But I also wish this hearing could more broadly focus on ensuring real retirement security, which means focusing on making sure 

that the millions of people currently out of work actually can find 

a good-paying job and improved opportunities, because as Mr. Brill 

mentioned, one of the main reasons why we have a reduction right 

now in retirement savings is because of the recession, because people have been out of work for so long, and so many people have. 
42 

And so we have got to make sure that we focus more generally, 

I think, on making sure that we get people back to work, making 

sure that we get them good-paying jobs, so that they can in fact 

take responsibility for themselves, too, and afford to save more for 

their retirement. 

And while I generally would agree more with what Mr. Richtman 

has said today than the other three of you, nonetheless, I think 

there are certain things that we can agree on, and I think the point 

about financial literacy is a really great point. I think we have far 

too many people in this country who are financially illiterate. I 

have a bill also that promotes statistical literacy. I think that is 

important as well and contributes to financial literacy. 

I am all for people taking responsibility for themselves, especially 

when it comes to retirement. But at the same time, of course, I 

have a lot of concerns about the move from defined benefit to defined contribution. I still think that there is a place, a very important place, for defined benefit plans. And I don’t want to see us 

continue to move in the direction of defined contribution plans. 

Also, I hope this hearing really is the beginning of a larger discussion, as I just said, and some ways on how to improve people’s 

retirement savings and get them the information they need. I think 

that is absolutely critical. But I am also glad that we can use this 

hearing to focus on other retirement security for all Americans, and 

that is Medicare and Social Security. 

Republicans’ budget, as was already mentioned, unfortunately 

will end Medicare. And not Medicare as we know it, but I think 

as Mr. Kildee said, Medicare. It wants to replace Medicare with 

something else. And they can call it Medicare, but it is not Medicare. It is simply something different. It turns it into a voucher 

program. 

Just last week some of our Republican colleagues again introduced legislation that would privatize Social Security. I thought we 

had gone through that with the Bush administration in 2005, but 

apparently not. And this proposal that was introduced goes even 

further than President Bush did. It is not allowing folks to put 1 

or 2 percent into private accounts, but the full 6.2 percent that 

they now pay, as I understand it. And somebody correct me if my 

information is wrong. 

But Mr. Richtman, a question having to do with the Republican 

budget to transform Medicare, double seniors’ out-of-pocket health 

care costs and, really, with so many Americans already struggling 

to save enough for retirement, what does this mean for their retirement planning and for employers’ future costs, this budget that we 

have already referred to? Mr. Richtman? 

Mr. RICHTMAN. Well, I think that Congressman Andrews tried to 

elicit that earlier in the hearing. If a senior on Medicare is paying 

twice as much out of pocket, there is no question that it affects 

their retirement security. There is less money to spend on other 

things, other essentials. At the same time, Social Security COLAs 

have been withheld, there was no COLA in 2010, there was no 

COLA this year in 2011. And I am sure if you go to your town 

meetings or any of the members of the committee, and you tell— 

ask your seniors, do you think the price of the things you count on 
43 

has not changed in the last year, they are going to laugh because 

they know everything has gone up. 

So when you combine paying more out of pocket for your health 

care, receiving a Social Security benefit that is not growing to keep 

up with inflation, it is going to have an impact on your overall retirement security in my opinion. 

Mr. LOEBSACK. I am nearly at the end of my time. I just want 

to ask, Mr. Brill, I think you referred to long-term trends, and I 

know that folks who are in favor of defined contribution plans and 

those who are in favor of putting some Social Security funds into 

private accounts talk about long-term trends of the stock market 

and all the rest. But we have to keep in mind that at any given 

time there can be a crash as we saw in 2008, as we have seen previously, and there will be folks who will have their retirement moneys in the stock market, invested, when those crashes happen. And 

we can talk all we want about long term and how there is a better 

return for the money in a private account perhaps than in Social 

Security, but we have to think about those folks who get caught in 

the middle of those downturns when they have had that money invested in private accounts. I think that is something that we have 

to keep in mind and can never forget. 

Thank you all for being here. Thank you, Dr. Roe. I appreciate 

it. 

Chairman ROE. Mr. Barletta. 

Mr. BARLETTA. Thank you, Mr. Chairman. I would like to yield 

my time back to the chair. 

Chairman ROE. Thank you. Just a few questions and background. I started in a small medical practice with 12 employees, 

and when I left we had 350-plus employees. And I really prided 

myself, our practice and our group, on providing retirement benefits. And I agree with you, education is one of the most important 

things you can talk about. And I have always heard investment advisors say the younger you are, the more aggressive you should be 

with your investments. I totally disagree. I think the first dollar 

that you invest has got the most times to turn over. We all know 

the rule of sevens. You earn 10 percent, your money doubles in 7.2 

years. 

So we have had employees in our practice for over 30-something 

years and they are going to have a very generous retirement plan. 

We began with a defined benefit plan and we looked at that, and 

for our younger employees we actually could put more money away 

for them in a defined contribution plan. 

The city where I was mayor—this was a public entity—changed 

from a defined benefit plan to a defined contribution. 

And I agree with the education that Dr. Loebsack was talking 

about is that that is absolutely critical, and Mr. Delaney talked 

about in educating your employees. I want you to discuss the fiduciary role, because I felt the pressure in our pension meetings in 

our practice, because you are reluctant to give advice. And what we 

have done is exactly what Mr. Delaney has done. We have offered 

about a dozen or maybe 15 different investment options. 

And Mr. Loebsack also brought up the idea that the market can 

crash. That is true, it can do that. Certainly no one would rec-
44 

ommend that at age 65 you have all of your money in equities. And 

there are various plans that can help with those things. 

For instance, in my own personal plan, I use a 401(k). The plan 

advisor said how much money do you want to retire on, so I gave 

him a number, and 3 years of that, 36 months, is put in cash. It 

does not matter what the market does in that time. There is a 3- 

to 5-year investment strategy and then a longer-term investment 

strategy. Those are strategies you can use to iron out these things. 

But I want to talk about the fiduciary role because that concerned me when I was in practice, and I think it may have held 

down the return because of my inability to really communicate better with my employees. Mr. Delaney, I think our problems are 

similar. 

Mr. DELANEY. Yes, Mr. Chairman. We approach this on a number of levels. One, we have an Investment and Retirement Plans 

Committee that meets on a quarterly basis that reviews everything 

with respect to the defined benefit plan and the defined contribution plan. We look at the returns each of the investments for our 

associates are providing on a regular basis, both near term and 

over the course of, say, 5 years. We review those on a regular basis 

to make sure that our associates have access to the types of investments that will provide them an opportunity to save for retirement 

and get good returns. 

Chairman ROE. I don’t mean to interrupt, but as I read this in 

the fiduciary—and you can correct me, Mr. Klein, if I am wrong— 

you can’t put past performance as part of the formula; is that correct? 

Mr. DELANEY. I do not know the answer to that question. 

Mr. KLEIN. I don’t believe that is fully correct, that you can’t discuss past performance. I think you are limited—I can look to my 

legal counsel sitting behind me—in terms of the extent to which 

you make a promise about the future in terms of past performance. 

Chairman ROE. You can at least say the last 5 years this plan 

is up 15 percent, or whatever? 

Mr. KLEIN. That apparently is included in a proposed reg which 

is not yet finalized about not looking back at past performance. 

Chairman ROE. So it is part of the rulemaking process now that 

may be a rule? 

Mr. KLEIN. Might be, yes. 

Chairman ROE. I didn’t mean to interrupt, Mr. Delaney. 

Mr. DELANEY. That is okay. We will certainly take a look at that. 

There are things that we do individually for associates who can access information, as I referenced. Morningstar, where they can do— 

I believe they can do kind of a questionnaire to determine tolerance 

for risk and so on, and be able to make recommendations in terms 

of what are the offerings through the plan that would basically fit 

their profile. 

But all of the discussions that we have had today with respect 

to return and saving enough for retirement, there is probably something beyond that that would make some sense for our associates 

to have access to; that at this point, we are a little bit hesitant to 

provide because of some potential fiduciary risks. 

Chairman ROE. Thank you. And now I yield to Mr. Holt. 
45 

Mr. HOLT. Thank you, Mr. Chairman. You know I, like my colleagues, I thank you for holding this hearing. I wish, I suppose, 

that it had been held before the Republican majority voted to end 

Medicare and before introducing legislation to privatize Social Security. 

As Mr. Richtman has pointed out, about a third of all Americans 

have no income other than Social Security, and about two-thirds 

rely on Social Security for most of their retirement income. We 

have a responsibility to see that people can enter their nonwageearning years with dignity. Privatizing Medicare and Social Security will return us to a you-are-on-your-own society, where it used 

to be to be old meant to be poor. To be old was to have inferior 

health care. 

You know, according to the Ryan plan, which has now been approved twice by the Republican majority, the privatization of Medicare future retirees would have real effects. They claim that those 

under 55 are not affected, but as Mr. Andrews has pointed out, and 

as the witnesses I think have been forced to agree, it requires that 

a 54-year-old would have to set aside about $182,000 to be prepared for the additional out-of-pocket costs. Or a 20-year-old, today’s 20-year-old would have to set aside about three-quarters of a 

million dollars of extra retirement savings to cover the additional 

out-of-pocket costs. 

So this is on top of the problem that we all face of Americans 

are underprepared and are surprised to learn that they are underprepared; the average American family already a quarter of a million dollars short from what they think they need for retirement. 

And most are not only unprepared for retirement, they are startled 

to learn how unprepared they are. So rather than privatizing Medicare and Social Security, we should actually be helping workers 

save for retirement. 

My colleague Tom Petri and I have introduced the Lifetime Income Disclosure Act to inform workers of the projected monthly income they could expect at retirement where they find themselves 

now in this situation with what they have set aside so far; and it 

would provide participants with illustrative conversion directly on 

their annual statements, such as we Members of Congress have 

now started receiving with our Thrift Savings Plan. 

I, like most Members of Congress, I think like most Members of 

Congress, don’t have a dedicated personal financial advisor whose 

time is dedicated to me. And I know that is true for most Americans so this on the Thrift Savings Plan has actually been helpful. 

Congress and the administration must continue to do all they 

can to make sure that people have access to investment advice. 

From my own experience, I have seen the benefit of sound, professional investment advice, and I am going to continue to encourage 

the administration and my colleagues here in Congress to ensure 

that we don’t take actions that could have the unintended effect of 

limiting the financial advice and leaving Americans even less prepared for their retirement years. 

Getting back to Medicare, I mean, really no one disputes that 

Medicare works very efficiently. So now the opponents have taken 

to saying, well, but it is unsustainable. Mr. Richtman, I would like 

to point out what I think should be clear to everyone; that no 
46 

health insurance plan is sustainable if we have 10 percent a year 

inflation over the overall cost of living. The problem is not with 

Medicare, the problem is with increasing health care costs. 

Mr. Richtman, is it not true that Medicare, according to economic 

studies, is more effective than private insurers in keeping down the 

costs? 

Mr. RICHTMAN. Well, the administrative cost of Medicare is extremely low. Social Security, the administrative cost is nine-tenths 

of 1 percent, and all of that is paid for out of the payroll tax. So 

these are very efficient programs. 

But on the larger point that you have made, I couldn’t agree 

more. Singling out Medicare without addressing the overall cost of 

health care will only lead to a way—a system of health care for 

seniors where seniors pay more and get less. You are absolutely 

right about that, Congressman Holt. The only way to address effectively Medicare costs is to address overall health care costs in our 

country. 

Mr. HOLT. So private insurance plans could be just as 

unsustainable? 

Mr. RICHTMAN. Absolutely. 

Mr. HOLT. Thank you, Mr. Chairman 

Chairman ROE. Mrs. Roby. 

Mrs. ROBY. Thank you, Mr. Chairman. Thank you to all of you 

for being here today answering our questions. 

And, Mr. Brill, I just want to ask you a couple of questions, if 

you could expand on your testimony. You have data that shows 

many defined benefit programs as underfunded, and I find that to 

be very alarming, the data that you have. How big of a problem 

is this? And is it a hopeless situation going forward? 

Mr. BRILL. Thank you for your question. With regard to the magnitude of the underfunding situation, of course the degree to which 

plans are underfunded, if a particular plan is underfunded, vary 

significantly from plan to plan and over time, year to year, as well. 

Among the largest plans have been suggested that are underfunded, they are about 85 percent underfunded, about 15 percent 

under. That translates into hundreds of billions of dollars in the 

aggregate. 

A lot of these issues were addressed in legislation in 2006 that 

Mr. Andrews referenced to help set stricter rules to require plans 

to fund to higher targets, to fund towards 100 percent, and to have 

more strict rules regarding the rate at which they catch up when 

they are underfunded. Nevertheless, there remains these gaps. 

With regard to the question of whether it is hopeless, I think it 

is not. I think that the shifts we have seen in different years in 

terms of the asset allocation among defined benefit plans and the 

continued phase-in of the rules from the 2006 act are continuing 

to improve the solvency of the DB plans so that we are in a better 

place now than we were. 

Mrs. ROBY. Well, just to examine that, the PPA with respect to 

funding at the macro level, can you discuss even further the impact 

of that, and specifically what are the most successful aspects of 

that law as we look forward? 

Mr. BRILL. Sure. The legislation certainly was a balancing act of 

a number of competing forces. The simplest things that I think 
47 

were clear positives, as I mentioned earlier, setting a funding target of 100 percent. So you need to put your money where your 

mouth is. If you are making promises to your workers to have benefits, you have to be putting in the funds at the time that will 

allow those workers to receive those benefits. 

Previous to the 2006 act, that target was only 90 percent. So we 

were only asking people to get 90 cents on the dollar. Now we are 

asking people to try to fully fund their plans. 

In addition, when a funding gap does originate from a plan, either as a result of the change in asset values or a change in interest rates which affect their liabilities, plans amortize that gap over 

a 7-year period. Prior law was a hodgepodge of policies, some depending on the cause of your underfunding; sometimes that gap 

wouldn’t necessarily be closed for periods of up to 30 years. 

So we want to keep plans closer to fully funded, and raising the 

targets and shortening the periods in which gaps can be closed has 

helped, and we have seen the results of that already. 

Mr. KLEIN. Congresswoman, would it be okay if I entered some 

thoughts on this also? 

Mrs. ROBY. Surely. 

Mr. KLEIN. Hank you. First, a number of comments have been 

made today about the underfunding of defined benefit plans. And 

I think it is really important to keep in mind that anytime you 

take a snapshot view of a long-term obligation like a pension, you 

are going to get a skewed perspective. And in an environment 

where the market has had a downturn and interest rates are at a 

historically low level, plans are going to look today underfunded. 

Likewise, you know, when the market was higher and interest 

rates were higher, we might have looked at overfunded plans and, 

you know, rested on our laurels over that. That would have been 

equally a mistake. 

So it is important to remember that these benefits are going to 

be paid out over decades over many, many different economic cycles. 

The second question, I would just say that the concern that many 

employer sponsors of pension plans have around the funding rules 

in the Pension Protection Act concerns the fact that very minor 

changes in interest rates and minor, let alone significant, changes 

in the equity markets can lead to enormous funding obligations at 

the worst possible time for the company, when you want the company, obviously, to be putting money into retaining jobs and creating opportunities and investing. 

Everyone is concerned to make sure that the obligations are honored, but it is really important to recognize the level path and that 

employers will not sponsor plans if they can’t have predictability. 

And that is what the Pension Protection Act has injected, some unpredictability. 

Mrs. ROBY. Thank you. My time has expired. 

Chairman ROE. Mr. Hinojosa. 

Mr. HINOJOSA. Thank you, Chairman Roe and Ranking Member 

Andrews for this hearing on retirement security. 

It seems to me that in America we are fortunate to have Medicare and Social Security, a safety net for working families and middle-class Americans that must be strengthened and preserved. 
48 

While I respect my colleagues on the other side of the aisle, we 

know the Republican plan to end Medicare as we know it would be 

devastating to Americans’ retirement security. 

I have a question for you, Mr. Richtman. In your testimony you 

indicate that Social Security and Medicare help keep low-income 

workers out of poverty in retirement and provide critical support 

for middle-class workers who do not earn enough during their 

working lives to finance their retirement. So as an expert, why do 

you believe seniors all across the country oppose plans to privatize 

Medicare as we know it and convert it into a voucher program? 

Mr. RICHTMAN. I think the reaction we have seen lately in the 

election in New York and also across the country is seniors and 

younger people have seen that both of these programs work and 

they work well. One of the members of the panel earlier said the 

government has not managed Social Security well. I really don’t 

understand how that statement could be made. 

Last summer Social Security celebrated its 75th birthday. Here 

is a program that has paid everybody every penny they were entitled to for 75 years. Now, you as Members of Congress, you know 

how many times different parts of the government run out of 

money and come to you requesting emergency supplemental appropriations. Here is a program that has been sound for 75 years; has, 

as I mentioned, administrative costs of nine-tenths of 1 percent. 

Mr. HINOJOSA. I agree with you. I agree with you, and the cost 

of operating it is extremely cheap for us Americans. And I agree 

with you. 

Tell me, what are your thoughts on 401(k)s? Are they fulfilling 

the promise to help American workers build their retirement assets? 

Mr. RICHTMAN. Well, my 401(k) stopped fulfilling my promise a 

couple of years ago when it became—somebody said a ‘‘201(k).’’ 

That is why I am so glad to be invited to this hearing. They are 

an important part of what has been called a three-legged stool for 

retirement. Social Security is the one that we really need to make 

sure continues. 

Mr. HINOJOSA. I agree with you. I remember having town hall 

meetings when we were going to privatize Social Security under 

the Bush administration. And now when I run into some of those 

constituents, they tell me thank goodness we did not, because my 

retirement would have dropped at least 40 percent. 

I have a question for Mr. Brill. From your testimony, I understand you want American workers to take more responsibility for 

their retirement savings and expanded financial education to help 

them achieve their goal. I believe, as you know, financial literacy 

is extremely important, especially in low-income and minority communities. 

What is it that you would advise us? How do we ensure that financial advisors act in the workers’ best interest when they are 

giving us advice? 

Mr. BRILL. Thank you, Congressman. With regard to financial literacy, I would note that on the employer’s side there is, of course, 

important disclosure and fiduciary responsibilities. There is no 

question that those issues are clear. And as Mr. Klein noted in his 

remarks, if it is time to review those policies—it may be—I would 
49 

hope that it would be undertaken in an open and transparent process. 

I am also concerned, however, and in fact more concerned with 

the inadequate amount of education for many workers. You mentioned low-income workers, but it extends to middle-income workers as well. 

Mr. HINOJOSA. Let me stop you, because the Chris Dodd-Frank 

bill has a component known as Consumer Financial Protection Bureau which creates a financial literacy bureau that would be working out there. Do you support it? 

Mr. BRILL. I am not familiar with the provision in Dodd-Frank. 

I know that at the Treasury Department there were efforts to 

study and promote these issues. Those are certainly good concepts. 

I don’t see in the data a significant change in the level of financial 

literacy. So I think we need to do more. 

Mr. HINOJOSA. My time has expired. 

Chairman ROE. Thank you. 

Just a few questions, one on the employer’s side. One of the reasons that you want to get very good advice is the fact that my 

401(k) is tied exactly into what my employees are doing. So I have 

a vested interest in getting the best advice I can, because I am 

doing that. And I also understand that there are people out there 

who—and I understand what we were trying to do with the fiduciary, is if there is someone giving advice where just they benefit 

and not the employee and so forth, I get that. I understand that. 

Those incentives have to be aligned where the person giving you 

advice benefits and you also benefit. 

And as I have said many times, in a particular plan if somebody 

has 10 percent load and they make me 15 percent, I do better if 

someone has a half a percent load and they make me 2. It is just 

common sense that you go out and try to find the best yield and 

return and do that for your employees. They are happy and the employer is happy; because most of the time, as Mr. Delaney has said, 

his 401(k) and his retirement plan is tied right in with the employees of the company because that is where he works. 

The other thing I think that was brought up a minute ago by the 

ranking member, Mr. Brill, was asking you about competition. I 

think he probably did not use a good example when he used 

Coumadin in the market. You can get that for $4 a month. So the 

market system works pretty well in that, and being able to keep 

those drug prices down. 

The real problem, as we all know, is bringing a new molecule to 

market. That is incredibly expensive. And I agree with you that 

that will dry up and we are seeing it dry up, the new medications 

being brought to market. And that is a concern for me as a physician being able to prescribe for patients. 

I think one of the most important things we can do, we ought to 

get the financial education even down to elementary and high 

schools, to educate folks that you need to start planning for your 

retirement now, at the beginning of your life. And I would like to 

see us—this is not a new idea at all—is to start saving at birth. 

We deliver 4 million children a year in America, and I would like 

to see a retirement plan put away right then for your health care 

and your retirement, a $2,000 account for each at birth, and let 
50 

that go for 65 years in addition to what we are already doing. I 

think that is something we need do. It would relieve a lot of pressures on future liabilities that we have if we did that. 

I think the other thing you can do in your office that I have done 

time after time after time, I had an employee one time that took 

$30,000 out of retirement plan, paid the tax, paid the penalty, and 

bought a car. That was about a $300,000 car, because over time 

you have a chance to grow that into a very large sum of money. 

And so I think education is absolutely critical. 

Folks watching this may not understand why businesses, at least 

ours, looked at changing with cost structures. In a defined contribution plan you put away so much money each year, and some 

of it is usually matched by your employer. Whereas a defined benefit plan, you get a certain benefit at the end of that time, at 30 

years or 20 years or whenever it might be. 

I think an employer like me was more likely to go with a defined 

contribution, because each year I knew what my cost was. And in 

a very volatile market now, I think that is why we are looking and 

seeing it more and more and more. 

The auto-enrollment idea, I would like some comment on that. I 

think that is a wonderful idea in education. Mr. Klein, if you 

would. 

Mr. KLEIN. Sure. Auto-enrollment is one of those examples of behavioral economics that I was referring to in response to an earlier 

question. It definitely—the data has definitely shown that those 

employers who put that in because of general human nature, people who did not get around to participating were perfectly fine for 

the most part with being automatically enrolled in a plan. They 

still have the option to opt out or change the allocation or change 

the amount that is going in. But there is no question that that is 

a very simple way to increase participation. 

Chairman ROE. Mr. Brill brought up a great point a minute ago. 

How you get more people involved in a pension plan is to give more 

people a job. Quite frankly, that is the biggest problem in America. 

When I go around today, the first question I ask is, do you feel that 

this recession is over? And nobody holds their hand up. And the 

reason they don’t hold their hand up is because they can’t go out 

and find a job. If they could go out and find a job, the recession 

would be over and many of those jobs would have retirement benefits. 

And it just creates, the job creation, the job market now is a disaster in this country and we have to get that straightened out. 

All of what we are talking about, what Mr. Richtman is talking 

about, what everybody is talking about, is amplified and made 

worse because right now our people cannot find work. And the ones 

who are working, frankly, are underemployed. You go talk to people in my community at home, and I talked to I don’t know how 

many in the last week that couldn’t find a job doing anything. So 

I think that is the issue we have got to deal with now is to get people back to work. 

My time has expired. Mr. Tierney. 

Mr. TIERNEY. Thank you. I don’t want to deviate from what my 

questions are going to be, but I do want to say that we are all 

happy to talk about jobs. We have been here about 160 days and 
51 

we are still waiting for the majority to put forth any kind of proposal that would help on the jobs front. And that would certainly 

play into security and retirement. But we have not seen any bills 

about infrastructure, banks being created, nothing about research 

and development, uncertainties going forward, nothing about 

Workforce Investment Act of any consequence. 

So by all means, let’s talk about jobs and that will help 

everybody’s security. But for now at this particular hearing, Mr. 

Richtman, we are supposed to be talking about security retirement. 

So I think you said one-third of the current retirees rely on Social 

Security for all of their income. 

Mr. RICHTMAN. That is correct. 

Mr. TIERNEY. And that is an average of about $14,000 a year? 

Mr. RICHTMAN. Fourteen. And for women it is an average of 

12,000. 

Mr. TIERNEY. And two-thirds rely on Social Security for half of 

their income, or more. 

Mr. RICHTMAN. That is correct. 

Mr. TIERNEY. If we were to privatize Social Security so that people didn’t get their payments out, as they do under the current system, but instead had to rely on the volatility of the market and investments, would that one-third or two-thirds be more secure or 

less secure? 

Mr. RICHTMAN. Well, they would be suffering is the way I would 

characterize it. They would be suffering quite a bit. And we are 

grateful that the Congress did not pursue that approach to Social 

Security privatization. 

Mr. TIERNEY. So for people in general, but specifically for people 

at the lower end who are earning only enough to get that minimum 

benefit or to have that minimum benefit be half of their retirement, 

if they had a defined benefit plan that they could have counted on 

a certain payout under the formulas for that, but switched to a defined contribution plan where they were subject to the vagaries of 

the market and their investments on that, would that individual be 

more secure or less secure? 

Mr. RICHTMAN. No, it would be less secure. I guess—I think what 

you are pointing out, at least the way I see it, we need to have one 

source of retirement revenue that is secure, that you can count on, 

that is not subject to the whims of the market. 

And as was pointed out earlier, there are ups and downs in the 

market, but you retire at a certain time and you can’t predict 

whether it is going to be at the top of the market or at the bottom 

or anywhere in between. 

Mr. TIERNEY. So for those individuals who are now paying about 

25 percent of the cost of Medicare, under the Republican proposal 

they would be paying eventually over 60 percent, 65 percent of 

that. So obviously I assume that would make it a less secure environment for them, less certain. But also right now if you get Medicare you have—stop me if I am wrong—a guaranteed set of benefits; right? 

Mr. RICHTMAN. That is correct. 

Mr. TIERNEY. You have preventive care now and well-being visits. 
52 

Mr. RICHTMAN. After the passage of the Affordable Care Act; that 

is correct. 

Mr. TIERNEY. You have your choice of provider. Everyone who accepts Medicare, has to accept particular patients. So you have a 

choice of all those providers; correct? 

Mr. RICHTMAN. Correct. 

Mr. TIERNEY. And is it also true that if you are older and sicker, 

you don’t get penalized for that? Your premiums don’t go up 

through the roof because of that. 

Mr. RICHTMAN. That is one of the beauties of the system. 

Mr. TIERNEY. So if we switch to the Republican plan on that, do 

you see any guarantee that an insurance company must provide a 

plan? 

Mr. RICHTMAN. The only guarantee I see is that seniors would 

pay more and get less. That is the guarantee that I see. 

Mr. TIERNEY. But you don’t see a guarantee that an insurance 

company would have to offer a plan? 

Mr. RICHTMAN. That is correct. 

Mr. TIERNEY. Nobody is assuming that they will. If they do offer 

a plan, there is no guarantee that they would offer a plan with the 

same basic guarantees of the Medicare system. 

Mr. RICHTMAN. Congressman, you can look at history. Before we 

had Medicare, what you are describing was a fact of life. At the National Committee to Preserve Social Security and Medicare, our 

concern is that this whole approach, whether it is privatizing Social 

Security or privatizing Medicare, is really an effort to go back to 

the 19th century when, as one of your colleagues said, you are on 

your own. Good luck, you are on your own. And I don’t think most 

Americans want to go there. 

And I was asked why people support the program, both programs. It is because we don’t want to go back to that era. 

Mr. TIERNEY. I guess that sums it up fine. I yield back. 

Chairman ROE. I yield to Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Richtman, you were talking about retirement security challenges and the gentleman from Massachusetts just pointed out that 

about a third of people over 65, they get virtually all of their income from Social Security; is that right? 

Mr. RICHTMAN. That is correct. 

Mr. SCOTT. And two-thirds get most of the their income from Social Security. For those who get all of their income from Social Security and have essentially no pension, how would they be helped 

with education and advice in investments? 

Mr. RICHTMAN. Well, that is—I am not sure how they would be 

helped. They wouldn’t have much money to be investing, obviously. 

Mr. SCOTT. Whatever kind of education and advice we have, 

there would be a lot of people that will essentially get to 65 and 

be virtually dependent on Social Security, and education and advice 

for those who are broke would be meaningless; is that right? 

Mr. RICHTMAN. Once someone pays their rent, their heat, their 

electricity, there is not going to be much use, no matter what the 

education would be. 

Mr. SCOTT. Now, that is for retirement income. The other challenge, of course, is health care. Now, let’s talk about this little 
53 

voucher scheme that is going on. Is there anything in that voucher 

scheme that will reduce or increase costs? 

Mr. RICHTMAN. Not that I know of. 

Mr. SCOTT. It will not reduce costs. Will it increase costs going 

to the private sector because the private sector has commissions, 

advertising, corporate CEO salaries, additional expenses, dividends, expenses that Medicare does not have? 

Mr. RICHTMAN. By definition, the private sector is interested in 

profit. 

Mr. SCOTT. So you increase costs. Now, the voucher will not pay 

the whole cost when it starts. Is it true that the Medicare beneficiaries would be about $6,000 short of what they need? 

Mr. RICHTMAN. That is correct. The way I understand it, the 

voucher is not designed to keep up with health care inflation, so 

it is virtually certain that individuals will be paying more and 

more out of pocket. 

Mr. SCOTT. So when it starts they are about $6,000 short, and 

in 10 years they are about $12,000 short? 

Mr. RICHTMAN. That is correct. 

Mr. SCOTT. Does this scheme improve because they say they are 

going to delay it for 10 years? 

Mr. RICHTMAN. I am sorry? 

Mr. SCOTT. Does it improve because they delay it for 10 years? 

They tell senior citizens it is not going to apply to you, we won’t 

start it for 10 years. Does that improve the plan at all? 

Mr. RICHTMAN. It does not improve the plan for current—the 

plan, it does not for current or future—— 

Mr. SCOTT. It is not a better scheme because you wait 10 years 

to inflict it on people? 

Mr. RICHTMAN. The longer you wait—— 

Mr. SCOTT. It is the same bad plan. 

Mr. RICHTMAN. The longer you wait, the younger you are when 

you get into this new plan if it becomes law, the more you will pay 

out of pocket. 

Mr. SCOTT. The promise is that it won’t be inflicted on those 55 

and above. Ten years from now, what would prevent Congress, 

which would be composed of people who did not make that promise, 

from changing its mind and imposing that plan on everybody, rather than protecting those that are 55? 

Mr. RICHTMAN. The only thing that would prevent it would be 

more people in Congress such as yourself. 

Mr. SCOTT. Well, that is supposing. But if you had the plan and 

people were getting older and older, there is nothing to prevent 

Congress from saying we are going to impose this thing on everybody. 

Mr. RICHTMAN. Absolutely. 

Mr. SCOTT. And the people who are making the promise today, 

most of them are not going to be there in 10 years. Now, are we 

expecting younger people to pay for a Medicare program that they 

are not going to get anything out of? 

Mr. RICHTMAN. You know, when I was asked earlier why people 

have such strong support for Medicare and Social Security, it is because historically they have seen that the benefits are there when 
54 

they do retire. And if there are questions raised, doubts raised, I 

think that support dissipates pretty quickly. 

Mr. SCOTT. In the Judiciary Committee, my other committee, we 

are considering this thing called the Balanced Budget Amendment, 

which incidentally does not require a balanced budget. Everybody 

is discussing the title. There is a provision in there that would require a two-thirds vote to spend more than 18 percent of GDP. We 

haven’t gotten that low in terms of GDP since before Medicare. 

What do you think would happen to Medicare if that provision— 

would Medicare necessarily be in jeopardy if we actually passed— 

enacted that legislation? 

Mr. RICHTMAN. I think both Medicare and Social Security would 

be in jeopardy. And our organization has opposed every version of 

the balanced budget that has come through the Congress. 

Mr. SCOTT. And most of the discussion has been on the title, not 

on the provisions. Like you can reduce benefits with a 50 percent 

vote, but you need 60 percent to save Medicare or Social Security 

by raising taxes. That is under the title. 

Mr. RICHTMAN. Yes. 

Mr. SCOTT. Those kinds of things jeopardize both Social Security 

and Medicare if we adopt the plan as we are considering it in the 

Judiciary Committee. 

Mr. RICHTMAN. That is correct. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Chairman ROE. Mr. Kucinich. 

Mr. KUCINICH. Thank you very much, Mr. Chairman, for calling 

this hearing. 

To Mr. Richtman, you may have answered this already, so you 

know, indulge me on this. There are many older baby boomers who 

are deferring their retirement right now; is that correct? 

Mr. RICHTMAN. Many of them have to continue working; that is 

correct. 

Mr. KUCINICH. Because? 

Mr. RICHTMAN. Their costs are too high. They don’t have a secure 

retirement arranged for themselves. 

Mr. KUCINICH. And so let’s talk about this concept of retirement. 

Because you know, overarching this entire discussion is the theory 

of retirement, the idea that let’s say 40 years ago, 50 years ago, 

when people entered the workforce, they had some thought that at 

the end of all their years of work there was going to be something 

there for them. They are now finding in many cases that is just not 

true for a lot of reasons. 

What is different from this period of time, though, than maybe 

a few decades ago is the level of unemployment that exists. There 

aren’t opportunities for people to supplement their income. There 

are 15 million people unemployed and over 20 million at least underemployed, so there is a labor market that is extraordinarily difficult for people who are trying to supplement their income. 

What is the practical effect on older workers who are forced to 

continue working? Are they able to make more money or less? Are 

they able to put away money for what will finally be their golden 

years, or are they in their golden years finding that their standard 

of living is eroding? 
55 

Mr. RICHTMAN. I am not really prepared to give you any statistics, but from what I have observed many older people stay in the 

workforce to make ends meet. The average Social Security check 

comes out to $14,000 a year. And there are, of course, parts of the 

country where it is easier to get by on that and many where it is 

not. 

Mr. KUCINICH. But we have Social Security, but we also know 

when we are talking about private pension plans, which many people have used to supplement their Social Security, we see that the 

PBGC, depending on who you talk to, is anywhere from $5 billion 

to $23 billion underfunded. That also depends on interest rate assumptions. 

So if we have Social Security benefits on one hand sustaining 

most people’s retirements; but then people who were in the private 

workforce and had separate pension funds, and they find those 

funds are not there the way they counted on, that has to have an 

extraordinary impact on people’s standard of living when they 

reach their senior years; wouldn’t you agree? 

Mr. RICHTMAN. I would agree with that. 

Mr. KUCINICH. Mr. Chairman, what we are looking at here is a 

condition where this so-called American dream that people bought 

into when they were in their twenties and in the workforce, it is 

a myth. It has evaporated. And my concern is that our society isn’t 

paying enough attention to the effects of higher taxes, real estate 

taxes on seniors who are homeowners, to the limited effects that 

seniors have to be able to supplement their income, to the impact 

of Medicare Part D on a lot of seniors’ budgets because—you know, 

the government should be getting a rate similar to what veterans 

pay, but they are going to be paying a little bit more on prescriptions, depending on what the changes are long term through the 

Affordable Health Care Act. 

And if retirement is about planning, what we are finding is that 

with employers not willing to pay higher premiums and more and 

more burdens being put on the Pension Benefit Guaranty Corp., 

underfunded, and more and more companies in the last years going 

bankrupt and jettisoning their retirement plans and throwing them 

into a place where people are lucky to get pennies on the dollar 

once it goes through the PBGC process, we are creating a whole 

new potential for poverty among elderly people that the reason why 

we set a retirement program in place in the first place is being essentially negotiated. It is like everything is coming full circle. 

When Roosevelt came forward in 1934 to create Social Security, 

he did so because elderly people were being driven into poverty. Social Security has rescued them from that. But also people relied on 

trying to maintain their middle-class status through these pension 

programs that they had through private sector and other services. 

This is all changing. 

So we are looking at really a very dangerous situation here 

where we could be—we could see this icy hand of poverty enveloping a senior population that thought that it was going to be okay, 

thought they saved for a rainy day, thought they worked to get 

ahead. And they arrived, and all of a sudden it is gone. 

I wanted to share that concern with you, Mr. Chairman, because 

all of these decisions that we are making are affecting tens of mil-
56 

lions of elderly Americans who are really looking at serious financial troubles. 

Chairman ROE. Your time has expired. Mr. Wu. 

Mr. WU. No questions. 

Chairman ROE. I thank you. And Mr. Andrews, for any closing 

comments. 

And I do have a unanimous consent request to enter into the 

record a letter from Retirement USA and other statements for the 

record submitted by the AARP. 

Without objection, so ordered. 

[The information follows:] 

Prepared Statement of Retirement USA 

We are pleased that the Subcommittee on Health, Employment, Labor, and Pensions is holding this hearing today on retirement income challenges. Retirement 

USA is a national campaign working to address the challenges facing the nation’s 

private retirement system and to promote the development of a universal, secure, 

and adequate retirement income system that, in conjunction with Social Security, 

will provide future generations of workers with sufficient income for retirement. The 

Pension Rights Center, a nonprofit consumer rights organizations, is submitting this 

statement on behalf of the five organizations convening Retirement USA—the AFLCIO, the Economic Policy Institute, the National Committee to Preserve Social Security and Medicare, the Pension Rights Center and the Service Employees International Union—and our 23 supporting organizations. 

In recent months, attention has been focused on the long-term federal deficit facing the country. Retirement USA is concerned about another kind of deficit—the 

massive and growing Retirement Income Deficit that is facing millions of Americans. The Retirement Income Deficit is the gap between what people have currently 

saved for retirement and what they should have saved by today to be able to meet 

a basic level of sufficiency in retirement. This deficit is traceable principally to the 

freezing and termination of private pension plans, the failings of 401(k) plans, and 

the overall low coverage rates in employer-sponsored retirement plans. 

The Center for Retirement Research at Boston College last year calculated the Re- tirement Income Deficit at $6.6 trillion. To put it in perspective, this is more than 

four times the size of the federal deficit in 2009. To arrive at this number, the Center on Retirement Research used the same conservative methodology they used to 

calculate its National Retirement Risk Index. They looked at households in their 

peak earning years, between 32 and 64 years old, assumed that people would continue to earn pensions and contribute to 401(k)s, and factored in the value of home 

equity for retirement income. 

We are concerned that proposed cuts in Social Security, Medicare and public plans 

will only worsen the massive Retirement Income Deficit already facing American 

workers—and will particularly affect future generations of retirees. 

What is needed to address the Retirement Income Deficit? 

First and foremost, policymakers must keep Social Security strong. All of the participants in Retirement USA are committed to protecting and improving Social Security. Social Security is the economic lifeline that millions of Americans rely on to 

survive. For the average worker, Social Security provides only slightly more than 

$14,000 a year. Fully one out of five retirees relies on this steady stream of income 

for all for all of their income, and two-thirds rely on it for more than half of their 

income. Social Security is doing an unparalleled job of providing a basic foundation 

of income for retirees. Cutting Social Security benefits—for example, by increasing 

the statutory retirement age or changing Social Security’s indexing—would increase 

the Retirement Income Deficit that millions of Americans are already facing—and 

decimate the retirement prospects for future retirees. 

Second, there should be no cuts to Medicare benefits. Voucherizing Medicare will 

put health costs out of reach for millions of Americans who are already faced with 

inadequate retirement income. Privatizing Medicare will not control costs. It will 

simply make healthcare unaffordable and reduce the income that people need to 

make ends meet. Cuts in Medicare will only make the Retirement Income Deficit 

worse. 

Third, Congress should not undercut state and federal pension plans that have 

provided critical benefits to millions of teachers, firefighters, and other public servants who have worked to make our society a better place. The average public-sector 
57 

employee earns a pension of about $22,000 a year, modest benefits that enable retirees to keep spending on goods and services in their communities—thereby helping 

to strengthen the economy. Despite the financial crisis and the deepest recession in 

75 years, state plans are as well-funded as corporate pension plans. Efforts to weaken public plans, especially by turning guaranteed pension plans into 401(k) plans, 

will only make the Retirement Income Deficit worse. 

Fourth, employers, employees, and policymakers must work together to fix pension problems for private-sector workers. As it is, only 50 percent of the private 

workforce is covered by any kind of pension or savings plan on top of Social Security. In addition, far too many companies are freezing, terminating, or cutting back 

on defined benefit plans—pension plans that typically provide guaranteed lifetime 

income to retirees. Most private-sector retirement plan participants are in 401(k) 

plans. The problem is that, even in the best of circumstances, these plans only work 

if people are able to set aside significant amounts of money, make the correct investment choices, keep the money locked in until retirement, and then figure out how 

to make the money last for the rest of their lives. Even before the recession, retirement savings were low. In 2007, half of all families with 401(k)-type plans or IRA 

accounts had less than $45,000 saved in these accounts. For families that are headed by older workers, the median account balance was just $98,000. 

All the participants in Retirement USA believe in a two-tiered approach to addressing the challenges of the private system. First, we want to do everything possible to encourage and stabilize defined benefits plans, strengthen protections in 

401(k) plans, and improve coverage in existing plans. 

However, in the long-run, to truly address the need for supplemental income on 

top of Social Security, Retirement USA believes that we need to start developing a 

visionary approach to economic sufficiency in retirement. To that end, we have developed 12 principles that incorporate the best parts of defined benefit pension plans 

and 401(k) savings plans, and include some additional features. We believe these 

principles should underlie a new system that supplements Social Security. 

There are three overarching principles that we believe should guide the reshaping 

of our pension system for future generations of workers. These are: 

(1) Universal Coverage. Every worker should be covered by a retirement plan. A 

new retirement system that supplements Social Security should include all workers 

unless they already are in plans that provide equally secure and adequate benefits. 

(2) Secure Retirement. Retirement shouldn’t be a gamble. Workers should be able 

to count on a steady lifetime stream of retirement income to supplement Social Security. 

(3) Adequate Income. Everyone should be able to have an adequate retirement income after a lifetime of work. The average worker should have sufficient income, 

together with Social Security, to maintain a reasonable standard of living in retirement. 

Other principles include 

• Shared Responsibility. Retirement should be the shared responsibility of employers, employees, and the government. 

• Required Contributions. Employers and employees should be required to contribute a specified percentage of pay, and the government should subsidize the contributions of lower- income workers. 

• Pooled Assets. Contributions to the system should be pooled and professionally 

managed to minimize costs and financial risks. 

• Payouts Only at Retirement. No withdrawals or loans should be permitted before retirement, except for permanent disability. 

• Lifetime Payouts. Benefits should be paid out over the lifetime of retirees and 

any surviving spouses, domestic partners, and former spouses. 

• Portable Benefits. Benefits should be portable when workers change jobs. 

• Voluntary Savings. Additional voluntary contributions should be permitted, 

with reasonable limits for tax-favored contributions. 

• Efficient and Transparent Administration. The system should be administered 

by a governmental agency or by private, non-profit institutions that are efficient, 

transparent, and governed by boards of trustees that include employer, employee, 

and retiree representatives. 

• Effective Oversight. Oversight of the new system should be by a single government regulator dedicated solely to promoting retirement security. 

Social Security, of course, meets all of the core Retirement USA principles other 

than ‘‘adequacy.’’ Social Security benefits for the average retiree are less than the 

federal minimum wage. All of the organizations participating in Retirement USA believe that if there were the political will to do so, expanding Social Security to pro-
58 

1 Congressional Research Service, Income of Americans Aged 65 and Older,1968 to 

2008,(November 2009) Because of the importance of these issues, AARP would like to thank 

Chairman Roe and Ranking Member Andrews for convening today’s hearing. 2S. Mackenzie & K.B. Wu, The Coverage of Employer Provided Pensions: Partial and Uncertain at 7 (AARP 2008). 3 Id. at 15. 

vide an adequate level of income would be the most efficient and effective way of 

strengthening workers’ retirement security. 

But our groups recognize that our tradition of providing retirement security in 

America has been a mix of public and private systems. For that reason, our principles focus on features that we believe must be part of a new private system to 

supplement Social Security. There are proposals and programs both from this country and overseas that meet our principles that we would be pleased to share with 

Subcommittee members. 

We hope that you will consider options for developing a new private retirement 

system for the 21st century. This would be the best way of meeting the needs of 

employees—and ultimately of employers and society as well. We look forward to 

working with you to meet the retirement income challenge. 

Prepared Statement of American Association of Retired Persons 

On behalf of our members and all Americans age 50 and over, AARP appreciates 

the opportunity to submit written comments on some of the significant issues surrounding the current and future state of retirement security of American workers 

and their families. A major priority for AARP has long been to assist all Americans 

in accumulating and effectively managing the resources they need to supplement Social Security and maintain an adequate standard of living throughout their retirement years. Unfortunately, several key factors and trends over recent decades have 

made the necessity of achieving and maintaining an adequate income in retirement 

more challenging than ever before. 

These key factors and recent trends require the thoughtful and timely attention 

of Congress, the President and Executive Branch agencies. They also serve to underscore the critical importance Social Security plays, and will play, in the retirement 

security of both current and future generations of Americans. Historically, Social Security was designed to provide only a foundation of an individual’s retirement security and was never intended to be the sole source of income for people who have 

retired. Due to shortcomings in other traditional components of retirement security 

that help individuals achieve an adequate level of income for their golden years— 

employer-based pension plans, personal savings, home values and affordable health 

care—the median annual income of households in which the head or spouse was 65 

or older was just over $30,000 in 2008.1 Unfortunately, many Americans rely, and 

will continue to rely, on Social Security as their primary, if not sole, source of family 

income for their retirement. 

Employer-Based Pension Coverage 

It is widely accepted that workplace retirement plans can be an efficient and effective means for individuals to save for their own retirement. As a result, AARP 

strongly believes that all workers need access to a workplace retirement plan that 

supplements Social Security’s strong foundation. Since the enactment of the Employee Retirement Income Security Act (ERISA), the focus has been on three central 

issues: coverage and participation; security; and adequacy. 

Unfortunately, overall pension coverage in the U.S. private-sector labor force has 

generally hovered only near 50 percent for decades,2 with larger employers more 

likely than smaller ones to offer retirement plans.3 This means roughly 78 million 

American workers do not have access to a workplace retirement plan, such as a pension or 401(k) plan. As a result, very few of these individuals save for retirement 

on their own, and many are currently retired, or will retire, with less than enough 

money to meet their basic needs. 

In response to this significant problem, AARP has been a strong supporter of proposals such as the Auto IRA, which would help bridge this coverage gap and provide 

access to a workplace retirement vehicle to tens of millions of American workers. 

Specifically, this proposal would allow workers without access to an employer plan 

to voluntarily fund their own individual retirement accounts (IRA) through payroll 

deductions. Harnessing the power of regular, automatic payroll deductions at work 

would encourage and simplify saving and significantly improve the retirement security of millions of Americans. Moreover, these accounts would be portable, so workers could take them to another job. 
59 

4S. Mackenzie & K.B. Wu, The Coverage of Employer Provided Pensions: Partial and Uncertain 2, 7-12 (AARP 2008). 5 Aon Hewitt News Release, May 24, 2011 (http://aon.mediaroom.com/ 

index.php?s=43&item=2285) 

In addition, these automatic accounts involve little or no cost for most employers. 

Because Auto IRA would establish simple individual retirement accounts rather 

than employer-sponsored retirement plans, employer responsibilities under this proposal are much more limited. For instance, Auto IRA employers would neither select, hold, nor manage investments, nor would they be required to provide contributions to employee accounts. Finally, Auto IRA provides tax credits for employers to 

help offset any limited costs of setting up these accounts. 

In addition to coverage issues, the actual participation rate of workers in privatesector pension plans varies with age, income, education, ethnicity, size of employer 

and type of employment. Older, better-educated, full-time, better-paid workers are 

more likely to be plan members than younger, less educated, part-time, lower-paid 

workers.4

In an effort to increase participation rates in 401(k) plans, AARP supported the 

auto-enrollment provisions in the bipartisan Pension Protection Act. A May 2011 

Aon Hewitt study found that ‘‘(t)hree in five employers automatically enrolled employees into their defined contribution plans in 2010, up from 24 percent in 2006. 

For employees who were subject to automatic enrollment, Aon Hewitt’s analysis 

found that 85.3 percent participated in their DC plan, 18 percentage points higher 

than those that were not subject to automatic enrollment.’’ 5

The Move from Defined Benefit to Defined Contribution 

For those workers who are fortunate to work for employers who offer access to 

a workplace retirement vehicle, many of their employers have moved away from providing defined benefit (DB) plans and increasingly offer only defined contribution 

(DC) plans, such as 401(k) plans. While DC plans can be valuable to many, they 

transfer investment, longevity, inflation, and interest rate risks entirely to the individual, and could make it more likely that an individual would outlive his or her 

retirement nest egg. Today, only about 17 percent of workers have DB pension coverage on their current job, compared to 41 percent who have DC plan coverage. 

The shift away from DB plans to DC plans places significant responsibility on individuals to make appropriate decisions concerning their contributions, their investments and how they will manage their money once they retire so that they will have 

adequate income to fund their retirement years. Unfortunately, many individuals 

are simply not prepared to handle these risks and responsibilities. While DC-type 

plans can be an effective savings vehicle for retirement—especially if individuals 

take all the right actions and markets achieve historical rates of return—in practice 

this is not the case, and many people make mistakes at every step along the way, 

as evidenced by generally less than adequate DC account balances. Moreover, even 

if DC plan members make all the right decisions, if they happen to retire in a down 

market, much like the recent economic downturn, their account balances may still 

not be adequate for retirement. There is also substantial confusion among 401(k) 

plan participants as to the fees they pay. The fee information participants currently 

receive about their plan and investment options is often scattered among several 

sources, difficult to access, or nonexistent. Even if fee information is accessible, plan 

investment and fee information is not always presented in a way that is meaningful 

to participants. Fees are important because they reduce the level of assets available 

for retirement. 

The Government Accountability Office estimated that $20,000 left in a 401(k) account that had a 1 percentage point higher fee for 20 years would result in an over 

17 percent reduction—over $10,000—in the account balance. We estimate that over 

a 30-year period, the account would be about 25 percent less. Even a difference of 

only half a percentage point, or 50 basis points, would reduce the value of the account by 13 percent over 30 years. In short, fees and expenses can have a huge impact on retirement income security levels. 401(k) plan participants therefore have 

a need and a right to receive timely, accurate, and informative fee disclosures from 

their 401(k) plans to help them better prepare for a financially secure retirement. 

Because fees reduce the level of assets available for retirement, we have supported both Congressional and regulatory efforts to increase disclosure requirements 

so that fiduciaries and participants can receive the information they need to make 

informed choices about these investments. AARP supports increased disclosure of 
60 

6S. Mackenzie, Determining whether 401(K) plan fees are reasonable: Are disclosure rules 

adequate? (AARP Sept. 2008), available at http://www.aarp.org/research/ppi/econ-sec/pensions/articles/i8—fees.html. In contrast, DB plans generally provide a predictable monthly retirement benefit to employees, lower fees, and professional management of retirement assets. 

DB plans are also more efficient—that is, they cost less to achieve a particular level of retirement income than defined contribution plans. 7 An AARP survey of the distribution choices made by workers and retirees with pension plans 

found that there was definite interest in the annuity option. Specifically, it found that about 

31 percent of workers and 25 percent of retirees with DC plans that offered one or more options 

other than lump sum withdrawal were planning to select or had already selected the annuity 

option. See Kathi Brown et al. 2010. Annuities and Other Lifetime Income Products: Their Current and Future Role in Retirement Security. AARP Public Policy Institute, Factsheet 189 

(May). 8Fidelity News Release, February 23, 2011 (http://www.fidelity.com/inside-fidelity/employerservices/q4-2011-401k-update) 

fees charged by service providers to fiduciaries.6 Provider fees should be disclosed 

both to participants and employers, and clearly explained to participants on their 

annual statements. Participants should have the right to receive more detailed fee 

information on request. 

The Shift from Annuitized to Lump-Sum Distributions 

The share of traditional plans offering a lump-sum option has increased in part 

because plan sponsors shed longevity risk and pension costs by increasing the takeup of lump-sum distributions by plan members. As for DC plans, although more of 

their participants may be interested in the annuity option than had been previously 

thought, the lump sum option is still the overwhelming choice.7

Traditional DB plans have historically provided lifetime streams of income, while 

only a small fraction of DC plans offer an annuity or other lifetime income option. 

Moreover, many DB plan sponsors today offer lump-sum benefits and many retirees 

are opting for them. Younger workers are more likely than older workers to have 

only a DC plan, and the number of workers retiring and receiving their retirement 

account balances as a lump-sum is growing. It is not clear how, or how well, beneficiaries will manage those assets throughout decades of retirement. The lifetime monthly equivalent of a lump sum distribution of $100,000 would be worth approximately $600, or about half the typical Social Security retirement benefit. However, according to a 2011 Fidelity report, the average 401(k) account balance was still only $71,500 at the end of 2010.8

AARP is concerned that—unlike Social Security benefits—many Americans will 

outlive the retirement assets they have accumulated due to the combined effects of 

longer life expectancies and the overly optimistic assumptions many individuals 

make when spending down these assets. Effectively managing this decumulation 

phase of retirement can be especially complicated, but it is essential for the long 

term economic security of millions of American workers who can no longer count on 

the guaranteed lifetime income stream once overwhelmingly provided by workplace 

DB pension plans. 

AARP is therefore pleased to support H.R. 677, the bipartisan Lifetime Income 

Disclosure Act—legislation that would provide individuals with a better understanding of the lifetime value of their 401(k) plan assets by including in a yearly 

benefit statement a conversion of their total accrued benefits into a monthly dollar 

amount as if they had opted to receive a lifetime annuity. This conversion would 

help provide a more meaningful long term perspective to 401(k) plan participants 

by giving them a more accurate picture of the lifetime value of their plan and helping them make better decisions about how much they may need to save and how 

best to manage their retirement assets. 

Fiduciary Standards 

The impact of bad actors such as Enron, Worldcom and Bernie Madoff on individuals’ private retirement savings has been devastating. Accordingly, the importance 

of strong fiduciary standards cannot be understated and are necessary to protect the 

security of individuals’ hard earned retirement assets both now and in the future. 

Because the growth in 401(k) plans places significant responsibility on individuals 

to make appropriate investment choices so that they have adequate income to fund 

their retirement, AARP supports the goal of increasing access to investment advice 

for individual account plan participants so that participants may achieve their objectives. To that end, we have consistently asserted that such advice must be subject 

to the Employee Retirement Income Security Act’s (ERISA) fiduciary rules, based 

on sound investment principles and protected from conflicts of interest. The recent 

financial turmoil and scandals on Wall Street once again underscore the imperative 

that such advice be independent and non-conflicted. 
61 

9 HRET/Kaiser Family Foundation. 2008 Employer Health Benefits Survey 

10 Ibid. 11Kaiser Family Foundation. February 2007. Snapshots: Health Care Costs. Insurance Premium Cost-Sharing and Coverage Take-up. 12 Jessica Banthin, ‘‘Out-of-Pocket Burdens for Health Care: Insured, Uninsured, and Underinsured’’ presentation. September 23, 2008. 

AARP supports regulations to ensure that participants are provided with objective, non-conflicted investment advice. Consistent with a recent AARP poll, Americans believe that advice should be suitable for their needs, objectives and risk tolerance. AARP supports the Department of Labor’s review of the definition of fiduciary 

regulation given that the current manner in which employee benefits are provided 

is significantly different from the situation in 1975, as is evident with the shift from 

defined benefit plans to defined contribution plans. Not only has the emphasis shifted to individual investment advice in 401(k) plans, but the variety and complexity 

of investments has radically changed. Consequently, AARP believes that a revision 

of this regulation to reflect the practices in the current market place would better 

protect the interests of plans and their participants and beneficiaries. 

Healthcare 

Another key factor to consider when evaluating the retirement security of Americans and their families is the impact of high, and increasing, healthcare costs. Skyrocketing costs plague our entire health care system, burden individuals and employers, and threaten the sustainability of Medicare and Medicaid, vital programs 

that more than 93 million Americans who are older, living with disabilities, or on 

very limited incomes rely on. Seniors spend a disproportionate share of their income 

(about 30 percent on average) on health care costs, which continue to increase at 

rates well above the rate of overall inflation. We must transform the delivery of 

health care and bring down costs throughout the system to keep Medicare and Medicaid affordable now and strong for future generations. 

These healthcare cost trends are not sustainable and Congress must work 

thoughtfully to find ways to hold down these costs, not simply shift them to other 

payors. However, it is important to realize that Medicare is just one part of our nation’s health care system, which includes a vast array of other payers including public, individual, and employer-based health insurance. For families and workers, 

soaring costs compound job losses and other financial problems. For the past eight 

years, premiums for a family of four outpaced both earnings and overall inflation.9

The average annual premium for family coverage increased to $12,680 in 2008, almost double the figure in 2000.10 And the more employees must pay, the less likely 

they are to enroll in employer plans.11 People with private non-group insurance are 

even worse off; they often spend more than 10 percent of their income on health 

care.12

As you examine how to address the growing cost of health care programs, we urge 

you to reject arbitrary limits and cost shifting and focus instead on ways to make 

the delivery of health care to all Americans more efficient and cost-effective. Arbitrary cuts simply shift costs on to other payers of health care services, particularly 

beneficiaries and their families, and undermine current and future beneficiaries’ access to quality care. 

Social Security 

AARP strongly believes that the above trends and factors, as well as the recent 

economic crisis, highlight the importance of Social Security’s guaranteed benefit as 

the foundation of retirement income for all Americans. In the face of declining traditional pensions or the outright lack of pension coverage, shrinking savings, diminished home values, longer life expectancies and higher healthcare costs, the guaranteed benefit of Social Security will be increasingly important to future generations 

of Americans. 

Social Security is currently the principal source of income for nearly two-thirds 

of older American households receiving benefits, and roughly one third of those 

households depend on Social Security benefits for nearly all (90 percent or more) 

of their income. Despite its critical importance, Social Security’s earned benefits are 

modest, averaging only about $1,200 per month for all retired workers in March 

2011. Nonetheless, Social Security keeps countless millions of older Americans out 

of poverty and allows tens of millions of Americans to live their retirement years 

independently, without fear of outliving their retirement income. Social Security 

also provides critical income protection for workers and their families who become 

disabled or deceased. 

Social Security benefits are financed through payroll contributions from employees 

and their employers, each and every year, throughout an individual’s working life. 
62 

The program is separate from the rest of the federal budget and has not contributed 

to our large deficits. According to the Social Security Trustees, the program has sufficient assets to pay 100 percent of promised benefits for a quarter century, and 

even with no changes, can continue to pay approximately 75 percent of promised 

benefits thereafter. 

AARP believes that the nation’s long-term debt requires attention and we are 

committed to lending our support to a balanced approach that addresses the nation’s 

long-term fiscal challenges. However, AARP members recognize that Social Security 

is a self-financed program that has run surpluses for nearly 30 years and has not 

contributed to our large deficits. Accordingly, they firmly believe that using the Social Security benefits Americans have earned to remedy a problem that Social Security did not create is simply unfair. 

Given the already modest benefits current Social Security beneficiaries receive, 

the program’s continued critical importance to future generations’ income and retirement security, the system’s dedicated financing, and the lack of a contributory impact on our current large deficits, AARP firmly believes that Social Security should 

not be targeted for cuts for deficit reduction or as part of a budget exercise to satisfy 

arbitrary spending thresholds. While Social Security faces a long-term shortfall, targeting it now for arbitrary, across-the-board cuts is unfair and unnecessary, and will 

most assuredly mean significant reductions in benefits for not only current beneficiaries, but for their children and grandchildren as well. To the contrary, Social 

Security solvency deserves to have its own national conversation that focuses on 

preserving and strengthening the retirement security of Americans and their families for generations to come. 

Finally, Congress should work to encourage those who can work longer to do so 

by removing barriers that deter individuals who either wish to stay—or by necessity 

must stay—in the workforce. Encouraging job creation and job sustainment for 

those over age 60, including combating age stereotypes, are particularly important, 

as requiring people to work longer when there are no jobs is simply ineffective. For 

those who are able, working longer can have positive impacts both personally and 

financially, especially as it pertains to an increase in the Social Security benefits 

many people receive when they retire. Moreover, delayed claiming of one’s Social Security benefit is a cost-effective way to increase the share of a retiree’s annuitized 

wealth. At the same time, Congress should ensure that, for those who cannot continue to work, adequate protections are in place for the disabled as well as lowerincome groups, who often have below-average life expectancies. 

Conclusion 

Over the past 25 years, there has been a slow and steady erosion of the adequacy 

and security of employer provided pensions, an important component of our retirement security framework. As a nation, we need to refocus on the need for strengthened workplace retirement plans, especially given longer life spans and the need for 

added income to supplement Social Security. Once again, AARP would like to thank 

Chairman Roe and Ranking Member Andrews for holding today’s important hearing. We look forward to working with you and the other Members of this Committee 

to help ensure that as many Americans as possible are able to achieve a secure and 

adequate retirement. 

Mr. ANDREWS. I would like to again thank the witnesses for their 

preparation and for the way they have informed the committee. 

I would like to thank the chairman for having the hearing, and 

just briefly say that we can, will, and should work together to find 

ways to increase income for our retirees by strengthening the private pension system. 

But I think there are two other issues that are looming over that 

discussion. The first is protecting the integrity of Social Security so 

it is never subject to the wild fluctuations of the marketplace and 

is a rock-solid promise on which retirees can depend. And second, 

Medicare shares that same status; that it is not you will have 

health benefits if we get around to it or if the market conditions 

are right. Medicare is an intergenerational promise and it is one 

that ought to be honored. We don’t think that the majority plan 
63 

does that and we are committed to making sure that promise is 

honored. 

I thank the chairman for the hearing. 

Chairman ROE. I thank you all for attending today. 

And just a couple of things to touch on. There have been a number of important issues talked about today: plan funding, regulatory challenges, worker participation, education. This is just the 

first of a number of hearings we are going to have. In subsequent 

weeks we are going to talk about this in more detail. 

And just to summarize and finish, when I came to Congress just 

21⁄2 years ago, I really came here to look at our health care system 

in this country because it is a such a driver for costs, 17 percent 

of the U.S. economy. The single biggest problem with the American 

health care system was it costs too much money. It is too expensive. If it was more affordable, we could all have it. We had a segment of our population that could not afford it. We had a liability 

problem. 

Also as we looked at these numbers going forward, we had a 

huge budget deficit in this country and we have a huge jobs deficit 

in this country, as Mr. Kucinich pointed out. In going forward, 

when we look at Medicare—and certainly you have to look at Medicare. When it began in 1965 it was a $3 billion program. Government estimators said that in 25 years this would be a $15 billion 

program; it was a $100 billion program. Today it is over $500 billion. 

The Affordable Health Care Act that was passed—as Mr. Andrews pointed out it is referred to as a savings—I would say that 

when you take $500 billion out of an already underfunded program 

you haven’t saved it, you have created some real issues with that 

program because we are adding about 3 million new seniors per 

year for the next 20 years. 

On top of that, as Mr. Richtman pointed out, we have got a program called the IPAB, which is already part of the law, an independent panel advisory board. Fifteen bureaucrats appointed. And 

I don’t want them appointed by a Republican or Democrat. These 

are administratively appointed people that do not look at quality 

and access to care; they look at simply costs. So if our costs go 

above a certain number we are advised—and the Congress has extricated itself from that unless we have a two-thirds majority. It is 

amazing they gave up that kind of power. 

And, frankly, I will tell you in the House of Representatives, our 

bill did not contain that. That was the Senate bill. And it was later 

voted on and confirmed by the House. It is a very bad idea, as Mr. 

Richtman—that will lead to rationing of care. There is no other 

way around it. When you have 30-something million people chasing 

500 billion less dollars, you are going to have less access and costs 

are going up. So why are we having this discussion? Because the 

current system is unsustainable. 

My mother, right now in Medicare part A, lives on a Social Security check. A small pension. She pays exactly the same thing as 

Warren Buffett does. And when I heard on the campaign trail 

when I was out 3 years ago, and now we are out in our town hall 

meetings, is we don’t think that is right. And so the plan is not a 
64 

voucher, as I understand it, where you get mailed something in the 

mail and you go out and negotiate a fee or price. 

What the Ryan plan is saying is that the Federal Government 

will negotiate these plans, a multitude of plans as we currently 

have, and that we will have, that a citizen will have exactly the 

same benefit that I have right now as a U.S. Congressman. I heard 

that 2 years ago during this plan as ‘‘I want what you have.’’ And 

so we feel like that is a fair thing to do. And also a higher-income 

senior like myself is going to get a bigger part of the bill. We will 

not be like Warren Buffett. We will be paying more. If you are sick 

and you have preexisting conditions, you will pay a lot less. 

Why does anybody think this will work? Is this just some wild 

experiment? No, because we tried Medicare Part D as the only government health care program that I know of that has come in 

under budget. The CBO estimated that this would be a $670 billion 

program in 10 years and it turned out that it was 41 percent lower. 

Why? Because seniors had a choice to pick what they wanted, not 

what someone else picked for them. 

We have a difference of opinion here about that, and I could not 

agree more, we need to have this security for our citizens. 

It has been a great hearing. I can’t thank you enough for being 

here. 

Mr. ANDREWS. I neglected one other point. 

Chairman ROE. I yield to the gentleman. 

Mr. ANDREWS. Thank you very much. Sara Outterson, who is behind me on the screen, is finishing her tour of duty with our office 

this week, and I wanted to thank her for the work she has done 

for our constituents and for our committee. She is moving on to another office on Capitol Hill; obviously, not one as enlightened as 

ours, Mr. Chairman. But I wanted to thank her very much for the 

excellent work and wish her well. 

Chairman ROE. I thank you and the ranking member, and this 

meeting is adjourned. 

[Additional submissions of Chairman Roe follow:] 

Prepared Statement of the American Bankers Association; the Financial 

Services Roundtable; the Financial Services Institute; Insured Retirement Institute; National Association of Insurance and Financial Advisors; 

and the Securities Industry and Financial Markets Association 

I. We support retirement security 

The undersigned organizations1 share the Congress’ and the Obama Administration’s goal of increasing opportunities for Americans to save and plan for their retirement. We support increased incentives and opportunities for Americans to save 

and invest. It is our belief that providing these opportunities for Americans is important because savings increase domestic investment, encourage economic growth, 

and result in higher wages, financial freedom, and a better standard of living. We 

believe that most Americans should approach retirement with a comprehensive 

strategy that incorporates a number of retirement vehicles. Consumer education 

about retirement savings products can help consumers make sound investment decisions and allow them to maximize their retirement savings.2 Further gains can be 

achieved through better use of investment advice, and by promoting policies that 

provide for more diversified, dynamic asset allocation, and exploration of new and 

innovative methods to help individuals make better investment decisions. 

As a partner with the Congress and the Obama Administration in our collective 

efforts to protect Americans’ retirement security, we strongly believe that one of the 

largest challenges currently confronting pension plans, plan sponsors, small business owners, individual retirement account owners, employees, and retirees is the 

Department of Labor’s (the ‘‘Department’’) proposed rule that would expand the defi-
65 

nition of the term fiduciary3 under Title I of the Employee Retirement Income Security Act of 1974 (‘‘ERISA’’).4 In our view, the Department’s Proposal will negatively 

impact the ability of hard-working Americans to save and plan for their retirement. 

Moreover, the Department’s Proposal would substantially increase the categories of 

service providers who would be deemed fiduciaries for purposes of ERISA,5 and 

thereby decrease the availability of retirement planning options for all Americans.6

We respectfully request the Department formally withdraw its proposed definition 

of fiduciary7 and re-propose a more narrow definition of fiduciary that targets specific abuses. 

II. We believe that the proposed expansion of the definition of fiduciary would jeopardize the retirement security of millions of Americans 

Most Americans rely on retirement plans to supplement Social Security and private savings.8 For instance, Americans have increased their participation in 401(k) 

plans by 250 percent over the last twenty-five years.9 In addition, a 2009 study 

showed that over two-thirds of ‘‘U.S. households had retirement plans through their 

employers or individual retirement accounts (‘‘IRAs’’).’’10

IRAs are the fastest growing retirement savings accounts.11 IRAs are widely held 

by small investors12 who seek to maximize return by minimizing overhead on their 

accounts. According to the OLIVER WYMAN REPORT, smaller investors overwhelmingly prefer to use a brokerage account for their IRAs (rather than an advisory account) 13 because of the lower operating costs associated with brokerage accounts. In fact, 98% of IRAs with less than $25,000 in assets are serviced by securities brokers.14

We believe that the sheer breadth of the proposed expansion of the definition of 

fiduciary would have the unintended—but entirely foreseeable—consequence of reducing alternatives available to hard-working Americans to help them save for retirement, and increasing the costs of remaining retirement savings alternatives. The 

resulting increase in the number of persons who could be subject to fiduciary duties, 

increased costs, and increased uncertainty for retirement services providers will 

very likely reduce the level and types of services available to benefit plan participants and IRA investors by making benefit plans and IRAs more costly and less efficient.15

Thus, if the Department were to adopt the expanded definition of fiduciary in its 

present form,16 we believe it is clear that fewer Americans would have access to the 

advice they need to help them make prudent investment decisions that reflect their 

financial goals and tolerance for risk as they prepare for their retirement because 

of their reluctance to pay the increased costs that will likely be associated with professional investment advice.17

We also are concerned that the Department’s Proposal could lead to lower investment returns, and ultimately, a reduced amount of savings for retirement.18 Moreover, if the Department were to adopt its expanded definition of fiduciary in its 

present form, millions of hard-working Americans are likely to have reduced access 

to meaningful investment services or help from an investment professional,19 and 

likely would incur greater expense to access the broad range of product types associated with brokerage accounts.20 We find the potentially adverse consequences that 

the Department’s proposed expanded definition of fiduciary would have on our nation’s retirement system and the retirement security of all Americans to be untenable. 

In summary, our specific concerns with the Department’s proposed expansion of 

the definition of fiduciary are: 

• The Department has not demonstrated that the current definition needs to be 

completely re-written. 

• The proposed expansion of the fiduciary definition to encompass IRAs is ineffective and counterproductive. 

• The Department’s rule could result in significantly fewer retirement accounts 

and less retirement savings. 

• The Department has not evaluated the economic impact on small business owners. 

• Consultation and coordination with each of the relevant regulatory authorities 

is needed, including without limitation the Securities and Exchange Commission 

and the Commodity Futures Trading Commission. 

• The Department provided insufficient regulatory analyses. 

• Given the substantive concerns raised in the public comment record concerning 

the adverse impact of the rule, the Department should publish notice of its proposed 

revisions to the definition of fiduciary, and solicit public comment on the proposed 

revisions. 
66 

1. The Department has not demonstrated that the current definition needs to be 

completely re-written. • Despite 35 years of experience with the current definition of fiduciary,21 the Department has not provided adequate justification for its wholesale revisions to the 

current definition. • The Department’s stated rationale is to pursue bad actors (i.e., pension consultants and appraisers) who allegedly have provided substandard services and who 

failed to recognize or disclose conflicts of interest.22 If this is the goal, then the Department should more narrowly tailor the proposed changes to reach those particular bad actors. • The Department also should consider whether other regulations (including 

those enforced by other authorities) already provide adequate safeguards. For example, the Department’s recent disclosure regulations will require pension consultants 

to disclose all direct and indirect compensation they receive before entering into a 

service arrangement with a plan.23 This may address the Department’s concerns. 

2. The proposed expansion of the fiduciary definition to encompass IRAs is ineffective and counterproductive. • The proposed expansion of the definition of fiduciary would constrain the availability of lower-cost commission-based IRAs, which would increase costs for IRA 

owners and reduce retirement savings.24

• The Department previously expressed the view that regulatory initiatives designed for ERISA employee benefit plans were neither necessary nor appropriate for 

IRAs.25

• Sales practices for IRAs currently are subject to oversight by the Securities and 

Exchange Commission and FINRA. If the Department is concerned about oversight 

of sales practices, it should work together with those regulators to address those 

concerns, as opposed to overhauling a much broader regulatory regime. • Service providers to IRAs should be expressly excluded from any definition of 

fiduciary for purposes of Title I of ERISA. 

3. The Department’s rule could result in significantly fewer retirement accounts 

and less retirement savings. • The Department issued the Proposal without having done any study or survey— 

or providing any data—on the Proposal’s projected impact or effect on IRA owners 

or IRA service providers.26

• According to the OLIVER WYMAN REPORT, the effect of the Department’s 

rule ‘‘could well result in hundreds of thousands of fewer IRAs opened per year.’’27

• ‘‘Nearly 90% of IRA investors will be impacted by the proposed rule.’’28

• The Department’s Proposal would make service providers fiduciaries when 

merely providing a valuation of a security or other asset held in the account. This 

may lead service providers to withdraw from providing valuation services for real 

estate, venture capital interests, swaps, or other hard to value assets. As a consequence, investors will have far fewer investment choices available to diversify assets in their accounts as they seek to increase their retirement savings. 

4. The Department has not evaluated the economic impact on small business owners. 

• Small plan sponsors are not likely to be able to absorb the potentially substantial increase in costs arising from the expanded definition of fiduciary.29

• Small business owners are struggling to recover in the U.S. economy.30

• We urge the Department to ensure that its regulations not only protect retirement plan participants and beneficiaries, but also remove undue burdens that constrain the feasibility for small business owners to provide retirement plans for their 

employees. 

5. Consultation and coordination with each of the relevant regulatory authorities 

are needed, including without limitation the Securities and Exchange Commission,31

FINRA, and the Commodity Futures Trading Commission. 

• Investors and retirement services providers need a regulatory regime that provides clarity and certainty. 

• Regulations that establish conflicting rules create confusion, increase costs to 

service providers, and tend to lessen the availability of retirement services overall. 

6. The Department provided insufficient regulatory analyses. 

• The Department was obligated under Executive Order 1286632 to determine 

whether its proposed expansion of the definition of fiduciary was a ‘‘significant’’ regulatory action.33 Even though the Office of Management and Budget determined the 

Department’s proposed definition was economically significant,34 the Department 

performed an insufficient Regulatory Impact Analysis of the Proposal.35

• The Department stated ‘‘it is uncertain about the magnitude of [the] benefits 

and potential costs’’ of its regulatory action.36 Yet, the Department failed to provide 

any data whatsoever in support of its Regulatory Impact Analysis, in which the De-
67 

partment ‘‘tentatively conclude[d] that the proposed regulation’s benefits would justify its costs.’’37

• The Department’s Initial Regulatory Flexibility Analysis failed to provide either 

an estimate of the number of affected small entities38 or the increased business 

costs small entities would incur if they were determined to be fiduciaries under the 

proposal as required by the Regulatory Flexibility Act.39 As a consequence, it appears that the Department of Labor performed an insufficient analysis under the 

Regulatory Flexibility Act when it estimated the impact of its rule proposal on small 

businesses, a segment of the market also impacted by the proposed expansion of the 

definition of fiduciary. 

• On January 18, 2011, President Barack Obama issued Executive Order 13563 

‘‘Improving Regulation and Regulatory Review.’’40 The Order explains the Administration’s goal of creating a regulatory system that protects the ‘‘public health, welfare, safety, and our environment while promoting economic growth, innovation, 

competitiveness, and job creation,’’41 while using ‘‘the best, most innovative, and 

least burdensome tools for achieving regulatory ends.’’42

• The Department’s Proposal contravenes the Obama Administration’s publicly 

articulated goal to ‘‘identify and consider regulatory approaches that reduce burdens 

and maintain flexibility and freedom of choice for the public.’’43

7. Given the substantive concerns raised in the public comment record concerning 

the adverse impact of the rule, the Department should publish notice of its proposed 

revisions to the definition of fiduciary, and solicit public comment on the proposed 

revisions. 

• The definition as proposed would require substantial changes to address concerns identified in the public comment file.44

• It is likely that class exemptions will be necessary and should be part of the 

rule itself, so that hard-working Americans do not lose access to investment products they need to fund their retirement while the financial services markets wait 

for the Department to adopt the required prohibited transaction class exemptions. 

• The current definition of fiduciary45 has informed almost 35 years of Department guidance on investment advice for ERISA retirement plans and IRAs. Revisions to such a mature rule ordinarily should not require ancillary exemptions in 

order for the final rule to work in the real world. 

III. In light of the substantive concerns raised by the public, we believe the Department should withdraw its proposed expansion of the definition of fiduciary, and 

re-propose a defintion of fiduciary that addresses deficiences noted in the public 

comment file 

We and other parties have filed comments and supplemental materials with the 

Department that generally have raised these and other concerns about the adverse 

impact of the Proposal.46 At present, it is our understanding that the Department 

is considering substantial revisions to its Proposal in response to the views expressed during the public comment period.47

It is in the interest of the millions of hard-working Americans who are saving for 

retirement that the Obama Administration and the Congress collaborate actively 

with the private sector—in particular, the small business community and the retirement security community—to develop a regulatory regime that will benefit consumers and expand Americans’ retirement savings. 

IV. Conclusion 

In closing, strengthening the retirement security of all Americans is our priority. 

Strong and vibrant retirement programs benefit employees and their beneficiaries. 

As well, it strengthens the financial health and well-being of our nation. We, therefore, reiterate our request that the Department withdraw and re-propose a definition of the term fiduciary. 

While we support policies that encourage safeguards in retirement savings programs to protect consumers and our markets from fraudulent practices, we vigorously oppose regulations that would discourage participation by employers and employees in retirement programs or would imperil retirement security for millions of 

hard-working Americans. 

We urge policymakers to work with us to preserve a retirement system that helps 

strengthen retirement security for all Americans. We encourage the Congress to 

support policies that help promote retirement savings and enable the financial services industry to better meet the long-term retirement needs of hard-working Americans. 
68 

We stand ready to work with you and the Department on this important issue. 

Respectfully submitted, 

AMERICAN BANKERS ASSOCIATION, 

THE FINANCIAL SERVICES ROUNDTABLE, 

THE FINANCIAL SERVICES INSTITUTE, 

THE INSURED RETIREMENT INSTITUTE, 

NATIONAL ASSOCIATION OF INSURANCE AND FINANCIAL ADVISORS, 

SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION. 

END NOTES

1The American Bankers Association represents banks of all sizes and charters and is the voice 

for the nation’s $13 trillion banking industry and its two million employees. Many of these 

banks are plan service providers, providing trust, custody, and other services for institutional 

clients, including employee benefit plans covered by the Employee Retirement Income Security 

Act of 1974. As of year-end 2010, banks held over $8 trillion in defined benefit, defined contribution, and retirement-related accounts (Source: FDIC Quarterly Banking Profile, Table VIII-A 

(Dec. 2010)). 

The Financial Services Roundtable represents 100 of the largest integrated financial services 

companies providing banking, insurance, and investment products and services to the American 

consumer. Among the Roundtable’s Core Values are fairness (‘‘We will engage in practices that 

provide a benefit and promote fairness to our customers, employees or other partners.’’); integrity (‘‘[E]verything we do [as an industry] is built on trust. That trust is earned and renewed 

based on every customer relationship.’’); and respect (‘‘We will treat the people on whom our 

businesses depend with the respect they deserve in each and every interaction.’’). See Roundtable Statement of Core Values, available at http://www.fsround.org/. 

Roundtable member companies participate through the Chief Executive Officer and other senior executives nominated by the CEO. Roundtable member companies provide fuel for America’s 

economic engine, accounting directly for $92.7 trillion in managed assets, $1.2 trillion in revenue, and 2.3 million jobs. 

The Financial Services Institute, which was founded in 2004, is the only advocacy organization working on behalf of independent broker-dealers and independent financial advisors. Our 

vision is that all individuals have access to competent and affordable financial advice, products, 

and services delivered by a growing network of independent financial advisors affiliated with 

independent financial services firms. Our mission is to create a healthier regulatory environment for independent broker-dealers and their affiliated independent financial advisors through 

aggressive and effective advocacy, education, and public awareness. Our strategy supports our 

vision and mission through robust involvement in FINRA governance, constructive engagement 

in the regulatory process, and effective influence on the legislative process. 

The Insured Retirement Institute has been called the ‘‘primary trade association for annuities’’ by U.S. News and World Report and is the only association that represents the entire supply chain of insured retirement strategies. Our members are the major insurers, asset managers, broker dealers and financial advisors. IRI is a not-for-profit organization that brings together the interests of the industry, financial advisors and consumers under one umbrella. Our 

official mission is to: encourage industry adherence to highest ethical principles; promote better 

understanding of the insured retirement value proposition; develop and promote best practice 

standards to improve value delivery; and to advocate before public policy makers on critical 

issues affecting insured retirement strategies. We currently have over 500 member companies 

which include more than 70,000 financial advisors and 10,000 home office financial professionals. 

National Association of Insurance and Financial Advisors (‘‘NAIFA’’) comprises more than 700 

state and local associations representing the interests of approximately 200,000 agents and their 

associates nationwide. NAIFA is one of the only insurance organizations with members from 

every Congressional district in the United States. Members focus their practices on one or more 

of the following: life insurance and annuities, health insurance and employee benefits, multiline, 

and financial advising and investments. According to a Fall 2010 survey, nearly two-thirds of 

NAIFA members are licensed to sell securities, and 89% of NAIFA member clients are ‘‘main 

street’’ investors who have less than $250,000 in household income. The Association’s mission 

is to advocate for a positive legislative and regulatory environment, enhance business and professional skills, and promote the ethical conduct of its members. 

Securities Industry and Financial Markets Association (‘‘SIFMA’’) brings together the shared 

interests of hundreds of securities firms, banks and asset managers. SIFMA’s mission is to support a strong financial industry, investor opportunity, capital formation, job creation and economic growth, while building trust and confidence in the financial markets. SIFMA, with offices 

in New York and Washington, D.C., is the U.S. regional member of the Global Financial Markets Association (GFMA). For more information, visit www.sifma.org. 2The financial services industry has developed numerous financial literacy initiatives, including initiatives directed toward elementary and high school students and programs presented to 

investors in the local community. See The Financial Services Roundtable, COMMUNITY SERVICE IMPACT REPORT at 64-69 (2010), available at http://www.fsround.org/publications/ 

pdfs/CS10-ImpactReport.pdf; Insured Retirement Institute, Retirement Planning Resources for 

Consumers, available at http://www.irionline.org/consumers/retirementPlanningResources; Securities Industry and Financial Markets Association Foundation, available at http:// 

www.sifma.org/Education/SIFMA-Foundation/About-the-SIFMA-Foundation/; Investment 

Company Institute, available at http://ici.org/#investor—education; and FINRA, available at 

http://www.finra.org/Investors/. 
69 

3Definition of the Term ‘‘Fiduciary’’ [RIN: 1210—AB32], 75 Fed. Reg. 65263 (Oct. 22, 2010) 

(the ‘‘Proposal’’). 4 29 U.S.C. § 1001, et seq. 

5See Oliver Wyman, Inc., OLIVER WYMAN REPORT: ASSESSMENT OF THE IMPACT OF 

THE DEPARTMENT OF LABOR’S PROPOSED ‘‘FIDUCIARY’’ DEFINITION RULE ON IRA 

CONSUMERS at 13 (Apr. 12, 2011) (the ‘‘OLIVER WYMAN REPORT’’), available at http:// 

www.dol.gov/ebsa/pdf/1210-AB32-PH060.pdf (noting that ‘‘practically every investment-related 

conversation or interaction with a client [could become] subject to [a] fiduciary duty’’). ‘‘Even 

* * * discussions with call center and branch staff[ ] could be curtailed (so as to avoid inadvertently establishing a fiduciary duty.’’ Id. at 15. The OLIVER WYMAN REPORT is based on aggregate proprietary data furnished by ‘‘[twelve] financial services firms that offer services to retail investors.’’ Id. at 1. These firms ‘‘represent over 19 million IRA holders who hold $1.79 trillion in assets through 25.3 million IRA accounts [or roughly forty percent (40%) of IRAs in the 

United States and forty percent (40%) of IRA assets].’’ Id. 6OLIVER WYMAN REPORT, supra note 5 at 19-20. If the Department were to adopt the Proposal, the likely result would be a ‘‘[r]educed choice of investment professional, level of investment guidance, and investment products,’’ according to the OLIVER WYMAN REPORT. Id. at 

19. 7 It also would afford the Department an opportunity to receive further information and analyses from the public on the effectiveness of the proposed revisions. See Natural Resources Defense Council v. Environmental Protection Agency, 279 F.3d 1180, 1186 (9th Cir. 2002) (reviewing the ‘‘notice and comment’’ requirements, the court stated that ‘‘one of the salient questions 

is ‘whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule’ ’’). 8 Insurance Information Institute and The Financial Services Roundtable, THE FINANCIAL 

SERVICES FACT BOOK at 37 (2011) (‘‘THE FINANCIAL SERVICES FACT BOOK’’), available 

at http://www.fsround.org/publications/pdfs/2011/Financial—Services—Factbook— 

2011[1].pdf. 9 Retirement Security: 401(k)s (Sept. 23, 2010) (‘‘Retirement Security’’), available at http:// 

www.fsround.org/fsr/pdfs/fast-facts/2010-09-23-RetirementSecurity.pdf. In 2009, $2,121 billion of retirement assets were held in defined benefit plans compared to $3,336 billion of assets in 

defined contribution plans. THE FINANCIAL SERVICES FACT BOOK, supra note 8 at 43 

(2011) (Source: Securities Industry and Financial Markets Association). 10THE FINANCIAL SERVICES FACT BOOK, supra note 8 at 37. 11OLIVER WYMAN REPORT, supra note 5 at 4. 12 Id. at 10 (‘‘[A]pproximately half of IRA investors in the report sample have less than 

$25,000 in IRA assets, and over a third have less than $10,000.’’). 13 Id. at 12. Investors who hold IRA assets in a brokerage account pay commissions to the 

brokers who buy or sell securities for their IRAs. In the alternative, investors can hold IRA assets in an ‘‘advisory’’ account and pay a fee that is a percentage of the assets held in the IRA. 

A study of 7,800 households conducted by Cerulli Associates found that more affluent investors 

also ‘‘prefer paying commissions.’’ See Fee vs. commission: No doubt which investors prefer, 

BLOOMBERG (June 8, 2011), http://www.investmentnews.com/apps/pbcs.dll/article?AID=/ 

20110608/FREE/110609950 (reporting that the survey examined ‘‘households with more than 

$50,000 in annual income or more than $250,000 in * * * assets’’). 14OLIVER WYMAN REPORT, supra note 5 at 2. 15 Id. at 19-22. 16Proposal, supra note 3 at 65277-78. 17See OLIVER WYMAN REPORT, supra note 5 at 2; Fee vs. commission, supra note 13. 18OLIVER WYMAN REPORT, supra note 5 at 22 (‘‘These increased investment costs would 

serve as a drag on long-term investment gains, and therefore on the ultimate retirement savings 

available to impacted [IRA] holders.’’). 19 Id. at 19. 20 Id. at 20. 21 40 Fed. Reg. 50842 (Oct. 31, 1975). See also, Mercer Bullard, DOL’s Fiduciary Proposal 

Misses the Mark (June 14, 2011), available at http://news.morningstar.com/articlenet/article.aspx?id=384065 (‘‘It is unfair to the industry because it disregards decades of administrative 

law and practice under ERISA. It is bad for investors because it strips them of fiduciary protections when they are needed most.’’). 22Proposal, supra note 3 at 65271 (citing a Securities and Exchange Commission staff report 

that found a majority of the 24 pension consultants examined in 2002-2003 ‘‘had business relationships with broker-dealers that raised a number of concerns about potential harm to pension 

plans’’); GAO, Conflicts of Interest Can Affect Defined Benefit and Defined Contribution Plans, 

GAO-09-503T, Testimony Before the Subcommittee on Health, Employment, Labor and Pensions, Education and Labor Committee, House of Representatives at 4 (Mar. 24, 2009), available 

at http://www.gao.gov/new.items/d09503t.pdf (noting that 13 of the 24 pension consultants examined by the Securities and Exchange Commission’s staff ‘‘had failed to disclose significant ongoing conflicts of interest to their pension fund clients’’). 23Fiduciary Requirements for Disclosure in Participant-Directed Individual Account Plans; 

Final Rule [RIN: 1210—AB07], 75 Fed. Reg. 64910 at 64937 (Oct. 20, 2010). 24OLIVER WYMAN REPORT, supra note 5 at 2 (noting that ‘‘estimated direct costs would 

increase by approximately 75% to 195% for these investors’’). 25See Preamble to Interim Final 408(b)(2) Regulations, 75 Fed. Reg. 136 (July 16, 2010). 

‘‘The Department does not believe that IRAs should be subject to the final rule, 

which is designed with fiduciaries of employee benefit plans in mind. An IRA account-holder is responsible only for his or her own plan’s security and asset accumulation. They should not be held to the same fiduciary duties to 
70 

scrutinize and monitor plan service providers and their total compensation as are 

plan sponsors and other 

fiduciaries of pension plans under Title I of ERISA, who are responsible for protecting the retirement security of greater numbers of plan participants. Moreover, 

IRAs generally are marketed alongside other personal investment vehicles. Imposing the regulation’s disclosure regime on IRAs could increase the costs associated 

with IRAs relative to similar vehicles that are not covered by the regulation. Therefore, although the final rule cross references the parallel provisions of section 4975 

of the [Internal Revenue] Code, paragraph (c)(1)(ii) provides explicitly that IRAs and 

certain other accounts and plans are not covered plans for purposes of the rule.’’ Id. 26Proposal, supra note 3 at 65274-76. 27OLIVER WYMAN REPORT, supra note 5 at 2. 28 Id. at 19-20 (IRA holders who cannot qualify for an ‘‘advisory account’’ would be ‘‘forced to 

migrate to a purely ‘low support’ brokerage model * * * and have little access to investment 

services, research and tools’’ to support their IRA savings goals.). See also, Most Americans 

Haven’t Planned for Retirement and Other Areas of Concern, WALL ST. J., June 6, 2011, available at http://blogs.wsj.com/economics/2011/06/06/most-americans-havent-planned-for-retirement-and-other-areas-of-concern/ (‘‘Efforts to make people essentially their own money managers may also be futile. Only 21% to 25% of respondents said they have used information sent 

to them from Social Security.’’) 29While the costs associated with providing various employee benefits (including retirement 

plans) impact all employers, smaller companies typically are more sensitive to the costs associated with these programs. To the extent that service providers’ expenses increase, those costs 

are passed through to their clientele. An example of expenses associated with the Department’s 

Proposal is the legal cost associated with the initial ‘‘compliance review.’’ According to the Department, the cost of legal review would average sixteen (16) hours of time at a rate of $119 

per hour. Proposal, supra note 3 at 65274. This rate, however, is significantly lower than the 

average billing rate of $295 per hour for 10,913 lawyers surveyed by the National Law Journal. 

SURVEY OF LAW FIRM ECONOMICS, NAT’L L. J. (2010) (‘‘LAW FIRM SURVEY’’), available 

at http://www.alm.com/pressroom/2011/02/10/alm-legal-intelligence-releases-2011-survey-ofbilling-and-practices-for-small-and-midsize-law-firms/. 30See, Kelly Greene, Retirement Plans Make Comeback, With Limits, WALL ST. J., June 14, 

2011, available at http://professional.wsj.com/article/ 

SB10001424052702303714704576384072497942338.html (reporting that in the face of a ‘‘slowly 

improving job market, [many companies] seek to balance the need to retain highly skilled workers with the need to limit costs’’). 31The Securities and Exchange Commission released a study evaluating the regulatory regimes applicable to investment advisers and broker-dealers who provide advice to retail customers, as required by section 913 of the Dodd-Frank Wall Street Reform and Consumer Protection Act [Pub. L. No. 111-203, § 913, 124 Stat. 1824 (2010) (the ‘‘Dodd-Frank Act’’)]. STUDY 

ON INVESTMENT ADVISERS AND BROKER-DEALERS AS REQUIRED BY SECTION 913 

OF THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT 

(Jan. 21, 2011), available at http://sec.gov/news/studies/2011/913studyfinal.pdf. Section 913(f) 

authorized the Commission to engage in rulemaking to address the legal or regulatory standards 

of care applicable to investment professionals who provide ‘‘personalized investment advice 

about securities’’ to retail customers. Section 913(f) of the Dodd-Frank Act, 124 Stat.1827-28. 32 58 Fed. Reg. 51735. 33 75 Fed. Reg. at 65269. 34 Id. (According to the Office of Management and Budget, the Department’s proposed rule ‘‘is likely to have an effect on the economy of $100 million in any one year.’’). 35For example, the Department estimated that service providers would incur about sixteen (16) hours of legal review at a rate of $119 per hour. While the complexity of the compliance 

review likely would far exceed the Department’s estimate of sixteen (16) hours, an allocation 

of just $119 per hour for legal services vastly understates the cost of legal services in the United 

States. See LAW FIRM SURVEY, supra note 29 and accompanying text. 36 75 Fed. Reg. at 65275 (‘‘[The Department’s] estimates of the effects of this proposed rule 

are subject to uncertainty.’’). 37 Id. 38 Id. at 65276. 39 Id. 40 Improving Regulation and Regulatory Review—Executive Order 13563 (Jan. 18, 2011), 

available at http://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-andregulatory-review-executive-order. 41 Id. at Section 1. 42 Id. 43 Id. at Section 4. 44See infra note 46. 45 29 C.F.R. § 2510.3-21(c). 46See, e.g., Employee-Owned S Corporations of America (Jan. 12, 2011), available at http:// 

www.dol.gov/ebsa/pdf/1210-AB32-040.pdf; American Council of Engineering Companies (Jan. 

19, 2011), available at http://www.dol.gov/ebsa/pdf/1210-AB32-048.pdf; American Institute of 

CPAs (Jan. 19, 2011), available at http://www.dol.gov/ebsa/pdf/1210-AB32-050.pdf; National 

Association of Realtors (Jan. 20, 2011), available at http://www.dol.gov/ebsa/pdf/1210-AB32- 

052.pdf; Glass Lewis & Co. (Jan. 20, 2011), available at http://www.dol.gov/ebsa/pdf/1210- 

AB32-053.pdf; Securities Law Committee of Business Law Section of the State Bar of Texas 

(Jan. 11, 2011), available at http://www.dol.gov/ebsa/pdf/1210-AB32-039.pdf; Retirement In-
71 

dustry Trust Association (Jan. 26, 2011), available at http://www.dol.gov/ebsa/pdf/1210-AB32- 

064.pdf; International Corporate Governance Network (Jan. 21, 2011), available at http:// 

www.dol.gov/ebsa/pdf/1210-AB32-065.pdf; New York City Bar Committee on Employee Benefits & Executive Compensation (Jan. 28, 2011), available at http://www.dol.gov/ebsa/pdf/1210- 

AB32-070.pdf; Investment Adviser Association (Feb. 2, 2011), available at http://www.dol.gov/ 

ebsa/pdf/1210-AB32-082.pdf; International Data Pricing and Reference Data, Inc. (Feb. 2, 

2011), available at http://www.dol.gov/ebsa/pdf/1210-AB32-082.pdf; The ERISA Industry 

Committee (Feb. 2, 2011), available at http://www.dol.gov/ebsa/pdf/1210-AB32-090.pdf; Institutional Shareholder Services Inc. (Feb. 2, 2011), available at http://www.dol.gov/ebsa/pdf/ 

1210-AB32-104.pdf; U.S. Chamber of Commerce (Feb. 3, 2011), available at http:// 

www.dol.gov/ebsa/pdf/1210-AB32-111.pdf; CFA Institute (Feb. 2, 2011), available at http:// 

www.dol.gov/ebsa/pdf/1210-AB32-128.pdf; Business Roundtable (Feb. 3, 2011), available at 

http://www.dol.gov/ebsa/pdf/1210-AB32-139.pdf; and Committee of Federal Regulation of Securities of the Section of Business Law of the American Bar Association (Feb. 3, 2011), available 

at http://www.dol.gov/ebsa/pdf/1210-AB32-152.pdf 

47Definition of the term ‘‘Fiduciary’’ Proposed Rule Public Comments, available at http:// 

www.dol.gov/ebsa/regs/cmt-1210-AB32.html. 
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1 EBRI Databook, 2009, Chapter 2. 

2 EBSA Private Pension Plan Bulletin Historical Tables and Graphs, 2009. 

Prepared Statement of the U.S. Chamber of Commerce 

The U.S. Chamber of Commerce would like to thank Chairman Roe, Ranking 

Member Andrews, and members of the Subcommittee for the opportunity to provide 

a statement for the record. The topic of today’s hearing—challenges confronting plan 

sponsors, workers, and retirees—is of significant concern to our membership. 

Despite the challenges facing plan sponsors, the voluntary employer-provided retirement system has been overwhelmingly successful in providing retirement income. Private employers spent over $200 billion on retirement income benefits in 

2008 1 and paid out over $449 billion in retirement benefits.2 According to the Bu-
88 

3Statement of Financial Accounting Standards No. 158, ‘‘Employers’ Accounting for Defined 

Benefit Pension and Other Postretirement Plans’’ (FAS 158). This statement requires companies 

to report the net financial status of pension and other benefits on the company’s balance sheet 

rather than in the footnotes. In addition, plan assets and benefit obligations must be measured 

as of the date of the employer’s fiscal year end and employers must use the projected benefit 

obligation measure of liabilities. 

reau of Labor Statistics, in March of 2009, 67% of all private sector workers had 

access to a retirement plan at work, and 51% participated. For full time workers, 

the numbers are 76% and 61%, respectively. Nonetheless, the success of this system 

is being threatened and we urge Congress to work to remove these threats. 

The greatest challenge facing the employer-provided system today is the need for 

predictability of the rules and flexibility to adapt to changing situations. Our statement today focuses on two areas where this need is overwhelming—PBGC premiums and regulatory requirements. 

PBGC Premium Payments Must Be Predictable 

A matter of recent concern involves premium payments to the Pension Benefit 

Guaranty Corporation (PBGC). Congress is considering a proposal to increase PBGC 

premiums as part of the current budget discussions. Changes of the type and magnitude being discussed would undermine the private sector defined benefit pension 

system, hinder the economic recovery and could create an ill-advised precedent of 

government intrusion into normal business activities. 

Raising the PBGC premiums, without making contextual reforms to the agency 

or the defined benefit system, amounts to a tax on employers that have voluntarily 

decided to maintain defined benefit plans. Proposals, like those included in the 

President’s budget, that purport to raise $16 billion in additional PBGC premiums 

are flawed and, even if they were feasible, would result in an increase in PBGC premiums of almost 100 percent. Even less draconian PBGC premium increases, when 

added to the multi-billion dollar increases enacted in 2006, would divert critical resources from job creation and business investment. 

Furthermore, a creditworthiness test, like the one proposed by the Administration, would inevitably result in the PBGC becoming an entity that makes formal 

pronouncements about the financial status of American businesses. This role for a 

government agency would be inappropriate, especially for private companies and 

non-profit entities. Leaving aside the question of whether the PBGC can establish 

accurate mechanisms for measuring and adjusting an employer’s credit risk across 

industries and across the country, even modest year-to-year changes in those government credit ratings could have implications well beyond PBGC premiums, potentially affecting stock prices or the company’s access to other credit sources. We understand the pressures to address the budget deficits, but massive increases in 

PBGC premiums are not the solution. 

Regulatory Requirements are Overly Burdensome 

In general, greater regulation often leads to greater administrative complexities 

and burdens. Such regulatory burdens can often discourage plan sponsors from establishing and maintaining retirement plans. The following are just a few examples 

of where the regulatory burden is overwhelming. 

Notice and Disclosure: Plan sponsors are faced with two increasingly conflicting 

goals—providing information required under ERISA and providing clear and 

streamlined information. In addition to required notices, plan sponsors want to provide information that is pertinent to the individual plan and provides greater transparency. However, this is difficult with the amount of required disclosures that currently exist. Although there is a reason, even a good reason, for every notice or disclosure requirement, excessive notice requirements are counterproductive in that 

they overwhelm participants with information, which many of them ignore because 

they find it difficult to distinguish the routine, e.g., summary annual reports, from 

the important. Excessive notice requirements also drive up plan administrative 

costs without providing any material benefit. It is critical that Congress coordinate 

with the agencies and the plan sponsor community to determine the best way to 

streamline the notice and disclosure requirements. 

Accounting Rules: In 2006, the Financial Accounting Standards Board (‘‘FASB’’) 

undertook a project to reconsider the method by which pensions and other benefits 

are reported in financial statements.3 They completed Phase I of the project but left 

Phase II, which would have removed smoothing periods from the measure of liabilities, until a later date. After significant negative feedback from the plan sponsor 

community, FASB indefinitely postponed the implementation of Phase II. 

In 2010, FASB issued two proposals concerning accounting requirements for businesses that participate in multiemployer plans. Each proposal would have required 
89 

the participating employer to include estimated withdrawal liabilities on their statement regardless of the likelihood of withdrawal. As you are aware, the information 

included on financial statements is used to determine the credit-worthiness of a 

company. Therefore, disclosing an estimated withdrawal liability could be misleading and negatively impact an employer’s ability to get appropriate financing either from banks or bonding agencies. In addition, even if an individual employer is 

not directly impacted, that employer may be indirectly impacted if other employers 

who participate in the plan suffer financial trouble due to the disclosure of this information. FASB recently revised this proposal at the urging of the business community. 

The threat of accounting changes from FASB is a constant worry of plan sponsors. 

These changes can have significant ramifications for their businesses—impacting 

credit determinations and loan agreements—without having any impact on the actual funding of the plans. This persistent threat discourages participation in the employer-provided retirement system. 

PBGC Rule on Cessation of Operations: In August of 2010, the PBGC published 

a proposed rule under ERISA section 4062(e) which provides for reporting the liabilities for certain substantial cessations of operations from employers that maintain 

single-employer plans. If an employer ceases operations at a facility in any location 

that causes job losses affecting more than 20% of participants in the employer’s 

qualified retirement plan, the PBGC can require an employer to put a certain 

amount in escrow or secure a bond to ensure against financial failure of the plan. 

These amounts can be quite substantial. 

We believe that the PBGC proposed rule goes beyond the intent of the statute and 

would create greater financial instability for plan sponsors. Furthermore, we are 

concerned that the proposed rules do not take into account the entirety of all circumstances but, rather, focus on particular incidents in isolation. As such, the proposed rule would have the effect of creating greater financial instability for plan 

sponsors. 

The PBGC recently announced that it is reconsidering the proposed rule. However, we continue to hear from members that the proposed rule continues to be enforced. This type of uncertainty is an unnecessary burden on plan sponsors and discourages continued participation in the defined benefit plan system. 

Alternative Premium Funding Target Election: The PBGC’s regulations allow a 

plan to calculate its variable-rate premium (VRP) for plan years beginning after 

2007, using a method that is simpler and less burdensome than the ‘‘standard’’ 

method currently prescribed by statute. Use of this alternative premium funding 

target (APFT) was particularly advantageous in 2009 because related pension funding relief provided by the Internal Revenue Service served for many plans to eliminate or significantly reduce VRP liability under the APFT method. However, in both 

2008 and 2009 PBGC determined that hundreds of plan administrators failed to correctly and timely elect the AFPT in their comprehensive premium filing to the 

PBGC, with the failures due primarily to clerical errors in filling out the form or 

administrative delays in meeting the deadline. 

In June of 2010, the PBGC responded to the concerns of plan sponsors by issuing 

Technical Update 10-2 which provides relief to certain plan sponsors who incorrectly 

filed. We appreciate the PBGC’s attention to this matter and its flexibility in responding to this situation. However, we are concerned that the relief provided does 

not capture all clerical errors or administrative errors that may have occurred and, 

therefore, some plan sponsors remain unfairly subject to what are substantial and 

entirely inappropriate penalties. As such, we believe that the rules established 

under the current regulation and the Technical Update should be considered a safe 

harbor. The regulation should be revised to state that if the safe harbor is not met, 

the PBGC will still allow use of the APFT if the filer can demonstrate, through appropriate documentation to the satisfaction of the PBGC, that a decision to use the 

APFT had been made on or before the VRP filing deadline. Proof of such a decision 

could be established, for example, by correspondence between the filer and the 

plan’s enrolled actuary making it clear that, on or before the VRP filing deadline, 

the filer had opted for the APFT. It is important that this regulatory change be 

made on a retroactive basis, so as to provide needed relief to filers for all post-PPA 

plan years. 

Rulemaking under Section 6707A of the Internal Revenue Code: Section 6707A of 

the Internal Revenue Code imposes a penalty of $100,000 per individual and 

$200,000 per entity for each failure to make special disclosures with respect to a 

transaction that the Treasury Department characterizes as a ‘‘listed transaction’’ or 

‘‘substantially similar’’ to a listed transaction. The Treasury Department announces 

on an ad hoc basis what is a listed transaction. There is no regulatory process or 

public comment period involved in determining what should be a listed transaction. 
90 

4 IRC section 416. 

The penalty applies even if the small business and/or the small business owners derived no tax benefit from the transaction. The penalty also applies even if on audit 

the IRS accepts the derived tax benefit. The penalty is final and must be imposed 

by the IRS and cannot be rescinded under any circumstances. There is no judicial 

review allowed. In the case of a small business, the penalties can easily exceed the 

total earnings of the business and cause bankruptcy—totally out of proportion to 

any tax advantage that may or may not have been realized. If a transaction is not 

‘‘listed’’ at the time the taxpayer files a return but it becomes listed years later, the 

taxpayer becomes responsible for filing a disclosure statement and will be liable for 

this penalty for failing to do so. This is true even if the taxpayer has no knowledge 

that the transaction has been listed. Consequently, we recommend an immediate 

moratorium on the assessment and collection of the IRC Section 6707A penalty until 

the ‘‘listed transactions’’ can be thoroughly reviewed and recommendations can be 

made to carry out the intention of Congress without the disproportionate and probable unconstitutional impact of current law on small businesses and their owners. 

Cash Balance Plan Regulations: On October 18, 2010, the Internal Revenue Service issued long-awaited regulations affecting cash balance benefit plans under the 

Pension Protection Act of 2006. In addition to the delay in receiving this regulatory 

guidance, plan sponsors were disappointed that the regulations deviated from clear 

Congressional intent. The Chamber is engaged in on-going conversations with the 

Treasury Department and is asking Treasury and the IRS to set forth a clear and 

rational approach to PPA compliance for Pension Equity Plans. Moreover, because 

of the complexity of hybrid plans and their regulation, we are requesting additional 

guidance to ensure that plan sponsors have sufficient clarity and flexibility to adopt 

and maintain hybrid pension plans with legal certainty. 

Top-Heavy Rules: The top-heavy rules under ERISA are an example of extremely 

complex and burdensome regulations that do not offer a corresponding benefit.4 We 

recommend that this statute be eliminated altogether. 

Conclusion 

The best way to encourage plan sponsors to maintain retirement plans is to create 

a predictable and flexible benefit system. This statement highlights two areas where 

Congress could work to significantly improve predictability and flexibility. We look 

forward to working with this Subcommittee and Congress to enact legislation that 

will encourage further participation in the employer-provided system rather than 

driving employers out of it. Thank you for your consideration of this statement. 

[Whereupon, at 12:54 p.m. the subcommittee was adjourned.] 

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