Policy Perspective: Q1 Updates on IPA’s Policy Advocacy Efforts
As the first quarter of 2022 comes to an end, we want to take a moment to share an update with all of you on what we accomplished together in Q1 and our key focuses for the road ahead.
IPA Expands Advocacy Team: The IPA announced that Gina Gombar has joined the association as Vice President of Government Affairs and Associate General Counsel. In this newly created role, Gombar will further enhance and expand the IPA’s advocacy efforts and engagement with key decision makers.
Policy Summit Recap and Established Priorities: As we highlighted in our Public Policy Summit Recapin February, our Summit in Miami was a huge success, attended by more than 60 IPA members from all facets of our industry, representing asset managers, distribution partners and industry partners. Together, we discussed the current political and economic environment, including the pandemic, rising interest rates and inflation, the evolution of our industry, and addressed ongoing and anticipated regulatory and legislative threats.
To that end, we established our 2022 Policy Priorities to guide our advocacy efforts throughout the year.
SEC Meetings and Open Rulemaking: The IPA and its members have been busy at work over the past few months meeting with Securities and Exchange Commission (SEC) staff including Commissioners Allison Lee, Caroline Crenshaw and Hester Peirce as well as Barbara Roper, Senior Advisor to Chairman Gary Gensler, to discuss new innovations and current data about portfolio diversifying investments.
Under Chairman Gensler, the SEC has a sweeping regulatory agenda with open rulemakings totaling over 3,000 pages and 2,000 questions. The IPA has been actively working with coalition partners to address this growing rulemaking agenda and insufficient comment periods. On April 5, the IPA and our coalition partners sent the SEC a comment letter addressing the appropriate length of comment periods in light of the unprecedented volume of rulemaking items and issues that could result in significant shifts in industry operations and practices.
The IPA is actively working on other rule proposals. On March 28, ahead of the April 1 deadline, the IPA submitted our comment letter on the share repurchase disclosure rule proposal. We are also actively reviewing the private funds proposal, released on February 9, as well as the landmark 500-page climate change disclosure proposal, released on March 21, that requires all SEC registrants, including non-traded REITs and BDCs, to provide more information on how their operations affect climate and carbon emissions.
FINRA Meetings and Complex Products Notice: In addition to meeting with the SEC, our team also recently met with senior FINRA executives including Bob Colby, Joe Price, Paul Matthews, and Gerri Walsh, among others, to discuss portfolio diversifying investments and new innovations.
Recently, on March 8, the Financial Industry Regulatory Authority (FINRA) issued Regulatory Notice 22-08. The Notice is FINRA’s most significant statement on sales of complex products since 2012 and puts a spotlight on the regulatory concerns that arise when investors trade certain types of products, particularly through self-directed accounts, without understanding their unique characteristics and risks.
The IPA has formed working groups to review both the SEC’s climate change proposal and FINRA’s complex notice proposal.
NASAA Meetings and Reg BI Survey Analysis: For the past year the IPA has been engaged in an educational outreach effort to better educate regulators and registration staff on portfolio diversifying investments. We have worked extensively in Ohio and recently met with Washington. Soon, our State Policy Team will be meeting with Texas, California, Alabama, Maryland and other states. We look forward to a connecting with all state regulators throughout 2022.
Outside of our educational efforts, one area of top concern for the IPA was the structural flaws and biases of the North American Securities Administrators Association’s (NASAA) Regulation Best Interest Surveys (Reg BI), particularly around methodology and the validity of the findings.
Over the past few months, the IPA led dedicated group of our members and a coalition of industry groups to engage Greenwald Research and Dr. Matthew Greenwald, a recognized expert in survey research, in an analysis of the NASAA Reg BI Implementation Committee’s two multi-state surveys and reports.
Dr. Greenwald’s work highlighted the lack of objectivity and pointed to an unstated agenda in the surveys, including a focus on certain investment product types—private securities, variable annuities, non-traded REITs and leveraged or inverse ETFs—apparently disfavored and deemed by the survey authors to be “complex, costly and risky” (CCR). Hoping the findings could be a source of constructive information, the IPA and our coalition partners shared this report with state regulators and NASAA. Based on Dr. Greenwald’s findings, we urged states not to move forward with additional fiduciary rulemaking or regulatory guidance in relation to Reg BI, arguing the SEC is best positioned to regulate and enforce the rule.
The executive summary and full analysis are available to our members here: Analysis of NASAA’s Reg BI Surveys.
Legislative Activities – FIRPTA, Defined Contribution and Opportunity Zones
As Congress looks toward mid-term elections, the IPA is continuing its efforts on the FIRPTA Parity for Non-Traded REITs Act, H.R. 3123, which would expand the existing FIRPTA exception for “small” foreign shareholders of publicly traded REITS and promote additional investment in U.S. real estate. We are also very excited to be working toward a legislative solution to facilitate the inclusion of a modest allocation of alternatives to enhance retirement outcomes for defined contribution plan participants. The IPA is working closely with our partners at the Defined Contribution Alternatives Association (DCALTA) to promote legislation that would reaffirm that the inclusion of alternatives in professionally managed multi-asset funds and the associated fees and expenses do not constitute a breach of fiduciary duties. Finally, we also look forward to supporting Senators Cory Booker (D-NJ) and Tim Scott (R-SC) and Representatives Ron Kind (D-WI) and Mike Kelly (R-PA)’s Opportunity Zones Transparency, Extension, and Improvement Act – a bipartisan, bicameral piece of legislation to strengthen Opportunity Zones, establish robust reporting requirements, and further support underserved communities.
Additional Advocacy Activities
Finally, the IPA has continued to support letters on issues important to our members. In this quarter, in addition to the letters above, we also submitted a letter to the U.S. Department of Labor (DOL) and a letterto the Office of Management and Budget on the DOL Notice of Proposed Rulemaking: Procedures Governing the Filing and Processing of Prohibited Transaction Exemption Applications. Based on those efforts, the DOL provided a 45-day extension. We also submitted a letter to Senate Majority Leader Schumer and Minority Leader McConnell in support of the Economic Continuity and Stability Act to address “tough legacy” contracts that currently reference LIBOR. The legislation was ultimately included in the Fiscal Year 2022 omnibus appropriations legislation.
As a reminder, our advocacy must remain strong, vigilant, and engaged to ensure that policymakers are educated on the value and importance of 1031 like-kind exchanges for investors, business owners, retirement savers and our communities. Now is the time reach out to policymakers to communicate the importance of retaining Section 1031 like-kind exchanges without size limitations. Please visit the IPA’s 1031 Resource Center for more information and updates and our “Take Action” template letter you can use to engage directly with your Congressional delegates.
We want to extend a sincere thank you to our dedicated Policy, Regulatory and Legal Affairs Committee for their contributions to these accomplishments and their commitment to helping advance our industry, which makes all this work possible. We also want to thank each of the individual members that lent their critical expertise and assistance to these efforts.
We will continue this important work in the coming weeks leading up to this year’ IPA Summit in Washington D.C. on May 4 -6, where you will hear from former SEC Commissioner Hester M. Peirce and industry thought leaders and policymakers on the most salient issues impacting our industry. The registration is open now.
If you have any questions, please don’t hesitate to reach out to Tony or me. We look forward to seeing you all in-person at IPA Summit in a few weeks!
SVP, Government Affairs and General Counsel
Institute for Portfolio Alternatives