Unintended Consequences for Beneficiaries
by
DCLawyer
10/15/2009, 12:47 PM #
Lots of problems here, Eliot. As Eliot Spitzer - yes, you - said in Slate on August 17, 2009 ("Still a Chump's Game") - "As easy as it is to excoriate those who violate their solemn duty to a client or the entity to which they owe a fiduciary duty, the remedies over time have all had their unintended consequences." Your attempt to "remedy" what you see as evil views of the Chamber of Commerce runs the risk of allowing plan fiduciaries to meddle with politics and poses some dangerous unintended consequences for investors.
I put money into my retirement funds so I can have money to retire - not so I can reach a political goal. Investing or voting proxies for political goals inevitably distracts the plan fiduciary from the plan participant's goals - and results in less money for me to spend later on.
You claim to be concerned about conflicts of interest. It seems to me your proposal to allow plan fiduciaries to invest or vote proxies for reasons other than economic return poses a real conflict of interest for the fiduciary - between the duty to maximize return and the temptation to advance the personal goals of the fiduciary.
Perhaps you would say that the fiduciary should represent the views of the plan participants. Its not a perfect measure, but its unusual for either major party to fall below 40% of the popular vote in a Presidential election - so its fair to assume that the if plan fiduciaries vote their personal political convictions, they will be offending the political views of about 40% of the plan participants.
Its ok in the world of regular investing or in a self directed plan to have "Liberal" or "Conservative" funds (and in fact there are mutual funds like that out there). In that case, I have the option of selecting my investments based on politics. But in a plan, the fiduciary makes the investment decisions, including proxy voting, so the only choice for the plan participant is a choice between participating in the plan or not enjoying that employee benefit. Those who disagree with the political views taken by their plans fiduciaries will either be forced to pay the price for political views with which they disagree or drop out of the plan.
You say you are taking the politics out of the equation by removing corporate support for the Chamber. But if you are called upon to explain to a plan fiduciary what your new standards are for their decisions, what will you say? The current rules have been established over many years - essentially, the fiduciaries must make decisions that further the economic purpose of the plan, whether providing retirement or other benefits. But I don't know what general rule you propose - other than the easy to state but impossible to implement standard of don't vote for things that are "antithetical to our own views". Heck, I can't even use that standard to figure out whether a fiduciary should oppose membership in state and local Chambers of Commerce.
Suffice to say that your position that plan fiduciaries should attempt to reach political goals is antithetical to my own views.