REGULATION: Hypocrisy on Fiduciary Rule in Bitcoin Age

Source: Federal Bar Association - Fifth Circuit

Source: Federal Bar Association - Fifth Circuit

The financial services industry seems lost without a moral compass, like a tin man searching for his heart. On the one hand, take the role of financial advisors. During the Obama administration, the Department of Justice put forward a "fiduciary rule" that implicated financial professionals selling investment product to behave as a fiduciary on their clients behalf, if that investment product somehow reached into retirement assets. Of course, most investment product does reach into retirement assets, and by association extends to brokerage assets. Acting as a fiduciary generally means charging the lowest-market fee reasonable for funds, not getting paid additional kickbacks, not promoting proprietary products, and planning for the client's future. A federal appeals court (Fifth Circuit) just overturned this attempt to legislate the standards in the industry, but the rule was out of favor anyway as Trump's officials in the DOJ kept postponing enforcement.

Why do we need something like the fiduciary rule? The answer is that financial professionals selling investment product are kind of like doctors in a lab coat. Their self-branding creates the impression of professionalism and knowledge, which in turn persuades retail investors to purchase investments. Abusing that power by delivering inconsistent or biased advice (i.e., clients with similar needs getting different prices and products) is a social negative, which is why the SEC is now looking into creating some alternative to the DOJ fiduciary rule. And the SEC regulates investment advisors, making it more likely that they have jurisdiction over the standards. It is generally believed that such a rule helps roboadvisors and augmented financial advisors, because technology can record the standard to which advice is given, and all the legal documents and financial recommendations are tracked and can be compared to client circumstances. Not having the rule excuses choppy behavior and implementations and the inconsistent behaviors of brokers. Deregulation lowers the need for technology to keep us honest.

And yet, look at the inanity of the congressional hearings on crypto currency. Senators unfamiliar with the underlying software or the drivers of innovation in digital assets are spouting judgments about what investors should and should not be able to purchase. Representatives are claiming that they will not sit idly and "fail to protect investors". While it is certainly true that investor protections, and especially clear and transparent information should exist, there is a deep hypocrisy here. Deregulating the sale of traditional financial asset such that the sales processes can be biased is fine, while allowing for a self-funded global ecosystem of digital assets that is literally building its own capital markets is dangerous.

A consistent policy for Fintech would favor the efficiency of financial technology over the human status quo, which would mean distribution through software platforms of modern packages of a variety of investment vehicles. Financial professionals (and their software extensions) should be selling reality to their clients. But if individuals want to shoot for the moon based on personal decision making, the best we can do is global financial literacy and transparent data. Instead, we have a circus.