Personal Finance
Biden’s fiduciary rule may be at risk after Trump takes office
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A Labor Department rule that shields retirement savers from getting harmful investment advice is at risk of being overturned during President-elect Donald Trump’s second term — an outcome that would have an element of déjà vu, said legal experts.
The Biden-era regulation, issued in April, aims to rein in conflicts of interest that may taint investment recommendations from unscrupulous advisors, brokers or insurance agents.
Officials worry such conflicts might lead an agent to profit at the consumer’s expense, such as when investors are advised to roll money from workplace retirement plans like a 401(k) to an individual retirement account.
The most immediate threat to President Joe Biden’s Retirement Security Rule is that the Trump administration declines to keep defending it in court, attorneys said.
The rule faces an uphill legal battle. Two Texas federal courts have already stalled its implementation and seem very likely to kill it, legal experts said.
“At that point, the Trump administration could walk away from the case, just abandon it,” said Fred Reish, a retirement law expert and partner at Faegre Drinker Biddle & Reath LLP.
‘Here we go again’?
What the DOL fiduciary rule does
A primary goal of the Department of Labor rule is to raise the investment-advice standard tied to 401(k)-to-IRA rollovers, especially those for certain insurance products, experts said.
Rollovers are common for recent retirees. They are becoming more prevalent as baby boomers reach retirement age.
About 5.7 million people rolled over $618 billion into IRAs in 2020, according to the most recent IRS data. By 2022, that dollar amount had grown to $779 billion, according to the White House Council of Economic Advisers.
The new Labor rule “makes it highly likely that rollover recommendations are subject to a fiduciary standard,” Reish said.
U.S. Labor Secretary Julie Su.
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A fiduciary standard is a legal structure whereby financial professionals — brokers, advisors, insurance agents and others — must recommend investments that are in a client’s best interest instead of ones, for example, that generate more of a profit for the agent.
However, relative to rollovers, many retirement investors may not get such fiduciary advice, attorneys said.
The Employee Retirement Income Security Act stipulates that one-time advice to an investor — instead of an ongoing client relationship — generally doesn’t meet the fiduciary bar.
Since rollovers are often a one-off transaction, many aren’t covered by this heightened protection under the Employee Retirement Income Security Act, attorneys said.
The Biden-era rule would likely have the largest impact on insurance agents that sell “non-securities” products, which include certain annuities like indexed annuities, attorneys said.
Such agents would likely be required to assess additional factors in their rollover analyses, including whether it’s in a consumer’s best interest to take money from their 401(k) plan and move it to an annuity, Reish said.
Investment advisors and brokers who sell securities products, such as mutual funds or exchange-traded funds, are already subject to a Securities and Exchange Commission rule issued in 2019 that is “in many ways like the DOL’s rule,” Reish said.
Texas courts likely to strike down DOL rule
Two federal district courts in Texas issued a national “stay” of the regulation, in separate rulings in July.
They indefinitely delayed the rule’s Sept. 23 start date while the courts conduct a more detailed review of the lawsuits, which were filed by several insurance industry groups.
Lawyers expect the courts to overturn the rule. Indeed, the judges hinted at that outcome.
“The Rule is almost certainly unlawful for a broad class of investment professionals in the industry — not just plaintiffs,” according to a July 26 order by the U.S. District Court for the Northern District of Texas, in the lawsuit American Council of Life Insurers v. United States Department of Labor.
ACLI and other insurance industry groups lauded that decision, calling the regulation “DOL’s latest attempt to vastly expand its statutory authority by imposing fiduciary status on almost every financial professional who sells retirement products.”
The other Texas case is Federation of Americans for Consumer Choice v. Department of Labor.
If the case were appealed by either side, it would go to the U.S. Fifth Circuit Court of Appeals — the same one that killed a similar Obama-era fiduciary rule.
At either stage, the Trump administration could choose to stop defending the regulation, attorneys said.
Trump has signaled an intention to pursue a deregulatory agenda during his second term.
“None of that is certain,” Reish said. “President-elect Trump is both a Republican and a populist. We don’t know if conservative Republican philosophies will prevail on any given issue, or whether a populist approach would prevail.”
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It’s a challenging time for many federal student loan borrowers just trying to find ways to pay off their debt.
Millions of borrowers who enrolled in the Biden administration-era Saving on a Valuable Education plan are now in limbo after the program was blocked by Republican-led legal challenges.
Meanwhile, the Trump administration has changed the terms on several other repayment plans.
To successfully keep up with your student loan payments and eventually emerge debt-free, borrowers should explore their options and understand the terms of their repayment plan. Here’s what you need to know amid major challenges to the lending system.
How the SAVE plan got blocked
A U.S. appeals court in February blocked the Biden administration’s student loan relief plan known as SAVE.
The 8th U.S. Circuit Court of Appeals sided with the seven Republican-led states that filed a lawsuit against the U.S. Department of Education’s plan. The states had argued that former President Joe Biden, with SAVE, was essentially trying to find a roundabout way to forgive student debt after the Supreme Court struck down his sweeping debt cancellation plan in June 2023.
SAVE came with two key provisions that the lawsuits targeted: It had lower monthly payments than any other federal student loan repayment plan, and it led to quicker debt erasure for those with small balances.
Forbearance has no clear end date
When its SAVE plan got tied up in legal challenges, the Biden administration put millions of borrowers who’d enrolled in the plan in an interest-free forbearance. Borrowers, if they wish, can still remain in that payment pause.
There’s no specific end date to that forbearance as of now, said Scott Buchanan, executive director of the Student Loan Servicing Alliance, a trade group for federal student loan servicers.
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But unlike the Covid-era pause on student loan bills, this forbearance does not give borrowers credit toward debt forgiveness under an income-driven repayment plan or Public Service Loan Forgiveness.
Historically, at least, IDR plans limit borrowers’ monthly payments to a share of their discretionary income and cancel any remaining debt after a certain period, typically 20 years or 25 years. PSLF, which President George W. Bush signed into law in 2007, allows certain not-for-profit and government employees to have their federal student loans wiped away after 10 years of payments.
Borrowers have other options
Some borrowers who are in the SAVE program’s forbearance might want to sit tight, said higher education expert Mark Kantrowitz. Not having to make payments might be a relief to those who are experiencing any financial struggles.
Another benefit of remaining in the payment pause is that interest isn’t accumulating on your debt, like it would under other IDR plans, Buchanan explained.
“But months in SAVE forbearance do not count toward loan forgiveness, so both those considerations need to be weighed when thinking about switching plans,” Buchanan said.
If you do decide to switch out of the now-blocked SAVE plan, the Trump administration says that the other IDR plans now open are: Income-Based Repayment, Pay As You Earn and Income-Contingent Repayment.
The Education Department recently reopened those IDR plan applications, following a period during which the plans were unavailable. (The Trump administration said it was updating the plans’ applications to make them comply with the recent court order over SAVE.)
Borrowers should know that the automatic loan forgiveness after 20 or 25 years is not available at the moment under ICR or PAYE “since the courts have questioned that permissibility under statute,” Buchanan said.
Still, if a borrower enrolled in ICR or PAYE, then switches to IBR, their previous payments made under the other plans will count toward loan forgiveness under IBR, as long as they meet the plan’s other requirements, Buchanan said.
Meanwhile, borrowers in any of the three IDR plans can get credit toward PSLF.
If you’re on strong financial footing and not seeking loan forgiveness, the Standard Repayment Plan is a smart option for borrowers, experts say. Under that plan, the payments will usually be larger than on an IDR plan, but they’re fixed and borrowers are typically debt-free after just a decade.
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“Dead” investors often beat the living — at least, when it comes to investment returns.
A “dead” investor refers to an inactive trader who adopts a “buy and hold” investment strategy. This often leads to better returns than active trading, which generally incurs higher costs and taxes and stems from impulsive, emotional decision-making, experts said.
Doing nothing, it turns out, generally yields better results for the average investor than taking a more active role in one’s portfolio, according to investment experts.
The “biggest threat” to investor returns is human behavior, not government policy or company actions, said Brad Klontz, a certified financial planner and financial psychologist.
“It’s them selling [investments] when they’re in a panic state, and conversely, buying when they’re all excited,” said Klontz, the managing principal of YMW Advisors in Boulder, Colorado, and a member of CNBC’s Advisor Council.
“We are our own worst enemy, and it’s why dead investors outperform the living,” he said.
Why returns fall short
Dead investors continue to “own” their stocks through ups and downs.
Historically, stocks have always recovered after a downturn — and have gone on to reach new heights every single time, Klontz said.
Data shows how detrimental bad habits can be relative to the buy-and-hold investor.
The average stock investor’s return lagged the S&P 500 stock index by 5.5 percentage points in 2023, according to DALBAR, which conducts an annual investor behavior study. (The average investor earned about 21% while the S&P 500 returned 26%, DALBAR said.)
The theme plays out over longer time horizons, too.
The average U.S. mutual fund and exchange-traded fund investor earned 6.3% per year during the decade from 2014 to 2023, according to Morningstar. However, the average fund had a 7.3% total return over that period, it found.
That gap is “significant,” wrote Jeffrey Ptak, managing director for Morningstar Research Services.
It means investors lost out on about 15% of the returns their funds generated over 10 years, he wrote. That gap is consistent with returns from earlier periods, he said.
“If you buy high and sell low, your return will lag the buy-and-hold return,” Ptak wrote. “That’s why your return fell short.”
Wired to run with the herd
Emotional impulses to sell during downturns or buy into certain categories when they’re peaking (think meme stocks, crypto or gold) make sense when considering human evolution, experts said.
“We’re wired to actually run with the herd,” Klontz said. “Our approach to investing is actually psychologically the absolute wrong way to invest, but we’re wired to do it that way.”
Market moves can also trigger a fight-or-flight response, said Barry Ritholtz, the chairman and chief investment officer of Ritholtz Wealth Management.
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“We evolved to survive and adapt on the savanna, and our intuition … wants us to make an immediate emotional response,” Ritholtz said. “That immediate response never has a good outcome in the financial markets.”
These behavioral mistakes can add up to major losses, experts say.
Consider a $10,000 investment in the S&P 500 from 2005 through 2024.
A buy-and-hold investor would have had almost $72,000 at the end of those 20 years, for a 10.4% average annual return, according to J.P. Morgan Asset Management. Meanwhile, missing the 10 best days in the market during that period would have more than halved the total, to $33,000, it found. So, by missing the best 20 days, an investor would have just $20,000.
Buy-and-hold doesn’t mean ‘do nothing’
Of course, investors shouldn’t actually do nothing.
Financial advisors often recommend basic steps like reviewing one’s asset allocation (ensuring it aligns with investment horizon and goals) and periodically rebalancing to maintain that mix of stocks and bonds.
There are funds that can automate these tasks for investors, like balanced funds and target-date funds.
These “all-in-one” funds are widely diversified and take care of “mundane” tasks like rebalancing, Ptak wrote. They require less transacting on investors’ part — and limiting transactions is a general key to success, he said.
“Less is more,” Ptak wrote.
(Experts do offer some caution: Be careful about holding such funds in non-retirement accounts for tax reasons.)
Routine also helps, according to Ptak. That means automating saving and investing to the extent possible, he wrote. Contributing to a 401(k) plan is a good example, he said, since workers make contributions each payroll period without thinking about it.
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Meanwhile, J.P. Morgan raised its odds for a U.S. and global recession to 60%, by year end, up from 40% previously.
“Disruptive U.S. policies has been recognized as the biggest risk to the global outlook all year,” J.P. Morgan strategists said in a research note on Thursday.
Allianz’s Chief Economic Advisor Mohamed El-Erian also warned on Friday that the risk of a U.S. recession “has become uncomfortably high.”
‘There is some nervous energy’
“There is some nervous energy there,” said certified financial planner Douglas Boneparth, president of Bone Fide Wealth in New York, of the conversations he is having with his clients.
Even though stocks took a beating on Friday, “we advise them to focus on fundamentals and what they can control, which means maintaining a strong cash reserve and discipline around cash flow so that they can stay in the market and feel confident about taking advantage of buying opportunities,” said Boneparth, a member of the CNBC Financial Advisor Council.
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Recession or not, maintaining a consistent cash flow and investment strategy is key, other experts say.
“The best way to manage these moments is to maximize your current and future selves is to block out noise that doesn’t apply to your plan,” said CFP Preston Cherry, founder and president of Concurrent Financial Planning in Green Bay, Wisconsin.
Letting emotions get in the way is one of “the greatest threats to life and money plans,” said Cherry, who is also a member of the CNBC Advisor Council.
When it comes to volatility tolerance, sharp drops in the market are to be expected, the advisors say.
“The stock market is unpredictable, but historically, there’s a trend in how the market recovers,” Cherry said.
“In years with market corrections and pullbacks, these are the worst days, which are followed by the best days,” he added.
In fact, the 10 best trading days by percentage gain for the S&P 500 over the past three decades all occurred during recessions, often in close proximity to the worst days, according to a Wells Fargo analysis published last year.
“Being out of the market and missing the best days and cycles after recessions significantly hurt portfolios in the long run,” Cherry said.
Boneparth said his clients also “know volatility and uncertainty is part of the game and, most importantly, know not to sell into chaos.”
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