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Washington watch: shifts in retirement policy?

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next issue no. 6: Fiduciary perspective

Traditionally, the first two years of a president’s term is when the most significant legislation is enacted. And so far, the Biden administration and Congress are following tradition as their agenda begins to take shape, including some possible changes to retirement policy. Unlike many other issues, retirement policy remains largely bipartisan, but that does not mean that we will see consistent approaches to retirement regulation and legislation relative to prior administrations. So what are the issues to watch? Following is a list of the ones we think deserve focus from plan sponsors.

A sigh of COVID relief?

As outlined in his campaigning, the top priority for the Biden administration is pulling the country and economy out of the COVID-19 pandemic. And to that end, the American Rescue Plan Act of 2021 (ARPA) was signed into law on March 11, 2021. Here are some key provisions:

Retirement

While ARPA builds upon and extends numerous provisions from the Coronavirus Aid, Relief and Economic Security Act of 2020 (CARES), it does not contain the same kind of retirement plan relief that provided increased access to retirement savings and suspended required minimum distribution (RMD) payments. ARPA does, however, address longstanding issues related to certain defined benefit plans. While this is a defined contribution-focused publication, many of our readers oversee defined benefit plans as well, so it is worth noting defined benefit plan relief on the next page.

State and local

ARPA provides $350 billion to state and local governments hit by tax revenue losses. Critically, the bill bars states from using the aid for pensions or to finance tax cuts enacted since March 3, 2021, a provision that some states are pushing back against with litigation — notably, Ohio’s attorney general asked a federal court to rule it unconstitutional. State and local governments could transfer funds to private nonprofit groups, public benefit corporations involved in passenger or cargo transportation, and special-purpose units of state or local governments. Funds can only be used to cover costs incurred by December 31, 2024.

Small business

ARPA provided $7.25 billion for Paycheck Protection Program (PPP) forgivable loans, but did not extend the PPP’s application period, which closed March 31, 2021. It also makes more not-for-profits eligible for the PPP and provides $15 billion for targeted Economic Injury Disaster Loan (EIDL) advance payments; $25 billion for restaurants, bars, and other eligible providers of food and drink; and $1.25 billion for shuttered venue operators.

Defined benefit provisions included in ARPA

Multiemployer

Intended to address the growing funding crisis in the multiemployer pension system, ARPA includes the following:

Single employer

These changes should come as a welcome relief for sponsors subject to the Employee Retirement Security Act of 1974 (ERISA) minimum funding requirements, especially in the current environment of very low interest rates.

ARPA provides

The great tax debate

Now that ARPA has been signed into law, the next high-priority issue will be moving forward with an infrastructure bill. On March 31, President Biden outlined his “American Jobs Plan,” which would invest $2.3 trillion in “physical” infrastructure as a means to boost job creation, expedite post-pandemic economic recovery and promote clean energy. On April 29, President Biden unveiled his “social” infrastructure package, dubbed the “American Families Plan.” This second plan proposes spending an additional $1.3 trillion to address issues like child care, paid family leave, education and nutritional assistance. To cover the costs of these proposals, he has proposed a number of tax increases that would impact both corporate and individual tax rates. These proposed changes include, but are not limited to:

Congressional leadership will now work to determine which ideas within the proposals can gain enough support to pass Congress.

 

Moderate members in both parties will be at the forefront of the policy debates and could lead from the center in the 117th Congress.

ESG factors remain in focus (and are still uncertain)

On November 13, 2020, the Department of Labor published “Financial Factors in Selecting Plan Investments,” a final rule to address financial factors in selecting plan investments. Although DOL’s final rule moved away from using terminology such as “environmental,” “social,” “governance,” and/or “ESG” factors or considerations, the effort is still commonly referred to as the “ESG rule.” The amendments made by the rule require ERISA plan fiduciaries to select investments and courses of action based solely on financial considerations relevant to the risk-adjusted economic value. The amendments also address the scope of fiduciary duties surrounding non-pecuniary issues when making investment decisions.

Consistent with past administrations, on his first day in office Biden issued a series of Executive Orders that requires a review of all regulations issued during the Trump Administration that might be inconsistent with President Biden’s policies concerning public health, the environment and climate change. Among those was one regulation related to climate change that specifically referenced the ESG rule.

Subsequently, on March 10, 2021, the DOL issued a temporary non-enforcement policy for the so-called ESG rule and similar previously published regulations. The DOL noted it will not enforce these rules until it provides further guidance and intends to revisit the rules, though no specific timeline was provided. Until the publication of additional clarification, the department will not enforce previously offered ESG rules.

The ball is now in the DOL’s court. Principal Deputy Assistant Secretary for the Employee Benefits Security Administration Ali Khawar stated, “We intend to conduct significantly more stakeholder outreach to determine how to craft rules that better recognize the important role that environmental, social and governance integration can play in the evaluation and management of plan investments, while continuing to uphold fundamental fiduciary obligations.” Our view remains that ESG factors are a critically important component of both plan construction and investment processes. We are hopeful that the benefits of ESG incorporation will continue to be recognized by policymakers, plan sponsors and individual investors.

Comprehensive retirement reform 2.0

The Setting Every Community Up for Retirement Enhancement (SECURE) Act, enacted in 2019, received nearly unanimous support across Washington, an example of the bipartisan nature of retirement policy. The next effort to improve and modernize the retirement system is already underway, based upon two bills that were introduced in both the House and Senate. The bills have similar key provisions. We expect to see the same bipartisan support and anticipate there will be activity around these proposals in the coming months:

  1. The Retirement Security And Savings Act (“Portman-Cardin”), which was introduced in 2019, featuring more than 50 provisions.
  2. The Securing a Strong Retirement Act (“SECURE 2.0”), which was introduced just before the election, reintroduced to this Congress on May 5, 2021 and has over 30 provisions.

Retirement reform 2.0 proposals

Senate

Retirement Security & Savings Act
Rob Portman (R-OH)
Ben Cardin (D-MD)

Introduced 5/13/19 Over 50 provisions

House

Securing a Strong Retirement Act 
Richie Neal (D-MA)
Kevin Brady (R-TX) 

Introduced 10/27/20 Over 30 provisions

Key provisions

Insuring retirement assets?

In late 2020, Congressmen Donald Norcross (D-NJ) and Tim Walberg (R-MI) introduced the Lifetime Income for Employees Act to expand the qualified default investment alternative (QDIA) regulations in three key ways:

Can I have some advice?

As a final point plan sponsors should consider the DOL’s final prohibited transaction exemption (PTE) on Improving Investment Advice for Workers and Retirees. Published on December 18, 2020, the preamble to the final exemption includes a significant discussion of DOL’s views on the 1975 five-part regulatory test for determining whether a person or entity is an investment advice fiduciary for purposes of ERISA and the Internal Revenue Code’s prohibited transaction rules. The PTE states that recommendations to roll assets out of an ERISA-covered plan can be considered fiduciary investment advice, which reversed DOL’s longstanding position. The Biden Administration had the option to delay the PTE, but they decided to keep it in place. However, it is likely that DOL will make further changes to the PTE and the definition of investment advice fiduciary.

The path forward remains rocky

The path for moving the Biden administration agenda forward is not as smooth as one may think. While Democrats ultimately swept the 2020 elections, they lost seats in the House and have the narrowest of margins in the Senate. While Vice President Harris will cast the tie-breaking Senate vote when necessary, it will still be challenging for Democrats to move forward with any overly progressive proposals. Moderation and negotiation will be critical, especially in the Senate, where a handful of moderate Democratic senators may not automatically agree with every Democratic proposal under consideration. Bipartisanship will be at a premium and nearly as important as if Congress were more divided. Moderate members in both parties will be at the forefront of the policy debates and could lead from the center in the 117th Congress to drive the outcome of retirement reform and policy.

These issues all bear close watching, and we remain committed to staying informed, discussing our views with policymakers and providing our perspectives to plan sponsors.

In this issue
Retirement Rethinking equities with retirement & recovery in mind
Investment corner: Outsized gains in equity markets are prompting a number of questions.
Retirement An interview on retirement readiness in any market environment
Participant engagement: There are time-tested strategies that can help prepare participants for retirement.
Retirement Beyond better health: renewing focus on wellness
On the horizon: The physical, mental and financial toll of the pandemic continues to weigh heavily.
Contact us
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Dimitrios N. Stathopoulos
Head of Americas Institutional Advisory Services

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