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Blog: Workforce Washington
 

October 15th, 2007

Andrews May Be Signaling Wiggle Room on 401(k) Fee Legislation

I have worked in Washington for 15 years. Of course, we insular Washingtonians believe that the United States—well, OK, the world—revolves around what we do in the nation’s capital.

That may be true. But sometimes you have to travel far away to get a sense of what could be percolating here. For instance, the Pensions & Investments Defined Contribution Conference in San Francisco last week provided insight about the potential path of a bill that would increase the transparency of 401(k) fees.

The luncheon keynote speaker on October 8 at the P&I conference was originally supposed to be Rep. George Miller, D-California and chairman of the House Education and Labor Committee. Miller’s speech was highly anticipated because he would be discussing his 401(k) fee legislation to the industry that would be directly affected.

It would have been a skeptical audience. Earlier in the day, James Delaplane, a partner in the benefits group at Washington law firm Davis & Harman, criticized the Miller bill for being too stringent on its disclosure mandates and a threat to investor confidence.

Well, Rep. Miller sent his regrets and asked Rep. Robert Andrews, D-New Jersey, and chairman of the subcommittee on pensions, to take his place. Andrews, one of Miller’s key allies on the panel, did stand in for the chairman—but he didn’t exactly stand with him. Perhaps this is a sign that there is wiggle room on the bill.

Andrews was supportive enough that his speech could not have been delivered by Rep. Howard “Buck” McKeon, R-California and ranking member of the labor committee. But Andrews’ remarks may have drawn a few “amens” from McKeon.

Andrews didn’t give Miller’s bill a big bear hug. He sort of patted it on the shoulder. “Bills are the beginning of a legislative process, not the end,” Andrews says. He described the Miller measure as “only a starting place.”

He said that a bill “should not be a solution in search of a problem.” Instead, “any legislation should go forward if we build the record of a need for legislation.”

So far, Andrews isn’t convinced that there is systematic overcharging of 401(k) fees. “My initial reaction is there isn’t,” he says.

He also expressed skepticism about mandating that an index fund always be an option in 401(k) plans—another key component of the Miller bill. “I favor investment advice, not favoritism,” Andrews says.

The New Jersey congressman, who seemed to indicate his interest in running for the Senate one day, denied that he is splitting with Miller on the 401(k) fee issue. “What he did was initiate a process,” Andrews says. “We’re going to need bipartisan support. The chairman shares that view and there is no daylight [between Andrews and Miller].”

Perhaps not. But by declining to fully embrace and defend Miller’s approach, Andrews may have been signaling that negotiations are possible on a bill that, as currently written, would require itemization of at least 12 expenses for each investment option.

Industry advocates say Miller’s approach could overwhelm participants with too much information and potentially scare them away from retirement saving.

“It takes a very granular, line-item, disaggregated approach to fees,” Delaplane says.

Andrews, like most people representing the industry at the conference, agreed that greater 401(k) transparency is needed. He outlined the key questions for legislation to address:

• What should be disclosed?
• To whom should it be disclosed?
• What should be disclosed as opposed to what should be made available if requested?
• Should an index fund be mandated?

But Andrews did not frame 401(k) fee legislation in the language that Miller often uses. The California Democrat asserts that opaque fees are undermining retirement security and contributing to the “middle-class squeeze.” Andrews never uttered a word about the “squeeze” during his San Francisco speech.

Andrews, Miller, their Democratic and Republican colleagues and many, many industry lobbyists will be weighing in on the questions Andrews posed over the next few months in Washington. Perhaps we’ll see some compromising on both sides, if Andrews’ presentation thousands of miles outside the Beltway is any indication.


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