The Retirement Racket
The retirement plan industry is a racket. Its entire existence is based on the premise that retirees need its help planning their retirement, yet the industry itself actually creates the very problems that it purports to solve and engenders continual usage of the services it offers through a partnership between the public and private sector promoting continuous regulations which strengthen this partnership at everyone else’s expense. An example of a racket would be a man coming to your house and breaking your window and then demanding you pay him protection money to prevent future destruction of your property. In the retirement industry, the racket is less obvious, but very real nonetheless.
The racket began with the introduction of 401(k) plans. The mantra among 401(k) plan proponents is to take advantage of the employer match and maximize contributions, as the contribution limits are much greater than the limits for a personal individual retirement account (IRA). These plans, however, have been a disaster since participants have been given the power to direct their own investment accounts. While this idea sounds benevolent, the vast majority of plan participants do not have the expertise to effectively manage their own investments with the same level of skill as an investment manager of a defined benefit plan – the type of plan that used to be commonplace in which participants had no responsibility to manage their own investments. And even if they did have this skill, participants would not be able to make use of it as plan sponsors (the parties who bear responsibility for making decisions regarding retirement plans) typically enter into agreements with retirement plan providers without participants’ consent to limit the investments offered to certain “approved mutual funds” which are often mutual funds with excessive additional fees built in for record keeping, administration, custodial, and investment advisory services. Plan sponsors make these decisions without any understanding of what these services cost and what they receive in return. Many plan sponsors, for example, believe that investment advisors receiving $1,000 per hour in fees deducted out of participants’ accounts is worth it if the investments have performed well when in reality, as will be explained further, there is no connection between advisors’ recommendations and the performance of the investments. Unfortunately, the higher contribution limits in employer-sponsored plans reel in many plan sponsors who have the wherewithal to take advantage of these limits personally. Overall, the result of this arrangement is that retirement plan participants wind up paying higher fees than they otherwise would have paid if they would have simply invested in the same mutual funds within a personal IRA or investment account, as many of the mutual funds in retirement plans are available without these extra fees. However, retirement plan service providers often make the claim that mutual funds are generally less expensive in 401(k) retirement plans than than in IRAs. This claim is misleading for two reasons. First, it assumes that participants will choose proprietary funds offered by a record keeper that include the additional fees listed above within their expense ratio. These funds are not necessarily less expensive because the expense ratio of the funds depends on the size of the average participant account balance which is the primary driver of the additional fees built into the fund. The lower the average participant account balance, the greater the additional fees and therefore the greater the likelihood that participants can purchase these funds in an individual IRA at a lower price. Second, low cost passively managed mutual funds generally do not include the additional fees and can often be purchased at the same price either a 401(k) plan or an IRA. If the additional fees are added to the cost of the passively managed funds in the form of an asset charge, then participants can indeed purchase these funds at a lower price in an IRA.
The effect of the retirement plan racket is not solely limited to participants’ contributions. The current system also helps divert significant sums of money towards large mutual fund companies and retirement plan providers who dominate the industry through employer matching and profit sharing contributions since every dollar that a retirement plan participant receives in the form of these contributions is a dollar the employer could have paid in the form of a higher salary or bonus. To avoid this issue, employers could choose not to offer a plan for their employees or terminate their plan, but could face the possibility that employees would perceive their benefits as not being competitive. Participants could also choose not to participate in the plan, but lack knowledge of the advantages to doing so and could face the opportunity cost of giving up the matching contribution if the employer offers it. While one could further argue that participants are better off participating in the plan because they would miss out on the higher contribution that a group retirement plan allows, the vast majority of participants can’t afford or simply don’t choose to contribute more than the IRA limit allows anyway. Granted, participants could obtain the benefits of additional tax deferral through plan sponsors’ profit sharing contributions, but the unnecessary additional fees would likely cancel out the benefits. In addition, because the fees are almost always passed on to participants in proportion to their account balances, the current retirement plan structure disproportionally punishes the participants with the largest balances, which are often the oldest participants who have been saving the longest and are most immediately affected by retirement. To make matters worse, these fees are based on a percentage of the overall account value, so the more participants contribute, the more they pay, yet they receive no additional services in return for these additional fees and often have no idea what they are being charged or how these fees are being calculated. Unfortunately, the less participants and plan sponsors know, the more the providers are able to take.
For those participants who need advice, however, there is often a financial advisor available to provide “educational” services. What these educational services usually consist of is an advisor coming out to the plan sponsor’s office once or twice a year and sitting in a room waiting for participants to ask questions. If participants are lucky, the advisor may bring in a box of donuts as well. Aside from these meetings, there is very little if any work for the advisor to do.
Despite hardly having any work to do, the vast majority of financial advisors earn their compensation not based on the utilization of their services, but through an asset charge or percentage-based kickback known as revenue sharing from the mutual funds. These asset charges and kickbacks are typically about 0.25% to 0.50% of the plan assets and sometimes more depending on the asset level. It’s not uncommon for an advisor to earn $5,000 to $10,000 in annual fees, while providing only 5 hours per year of service at the most – meaning $1,000 per hour or more in “professional” advisory fees is quite typical. In some cases, commission-based advisors earn in excess of $40,000 in a year without providing any additional services beyond a meeting or two with the plan sponsor. A customary response from plan sponsors is “Well everyone has to make money”, but they rarely have any idea how much money their advisors are taking out of the participants’ accounts, and how much work they are actually doing. In most cases, the participants hardly utilize the advisors’ services. If plan sponsors understood that participants were paying for services they weren’t using, they would stop allowing advisors to take money out of participants’ accounts without doing anything. A large part of these misunderstandings stems from the fact that many advisors have a commission-based compensation model which enables them to use deception when describing how they get paid. Instead of admitting to plan sponsors that participants are directly paying for their services, advisors make the claim that the mutual fund companies are paying the advisory fees. This claim is simply false because an advisor’s commissions (also known as 12b-1 fees) are in addition to the mutual funds’ management fees and the mutual funds can be purchased without the advisors’ commissions.
Plan sponsors might stop allowing advisors to take percentage-based fees out of participants’ accounts if they also knew they could opt for advisors to receive a separate flat annual fee in return for the time spent and value added, which would then force advisors to enhance their service model and provide more objective advice. For example, one common question participants may ask is how they should go about paying down debt. While this idea may sound counterintuitive, the last person to ask this question to should be a financial advisor who has an incentive to advise against paying down debt, as an advisor’s compensation is increased as a result of an increase in plan assets. Another common participant question is how much to save each year. Financial advisors tend to advise participants to contribute the maximum affordable amount for the same reason they suggest not paying down debt. However, participants may already be in a comfortable financial position without having to contribute the maximum affordable amount, so financial advisors’ advice can cause needless sacrifices to their current living standards. Granted, advisors could argue that they need to raise their fees because their professional liability insurance premiums increase as the plan assets increase. However, the increase in premiums is generally based on each $1 million of coverage, while the advisors’ percentage-based compensation increases with each dollar in plan assets. And yes, some advisors do decrease their percentage-based fee as the assets increase, but their fees in absolute dollars still ultimately increase as the assets increase.
Along with charging fees far out of proportion to the services they provide, most advisors do not even specialize in providing advice regarding retirement plans, and for this reason, lack sufficient knowledge of the industry to provide valuable advice. In many instances, advisors use their relationship with plan sponsors as a means to sell lucrative (for advisors) financial products such as life insurance, annuities, and other commission-based products to plan participants. Advisors’ objectivity is compromised in these instances as well because of the influence that product wholesalers have on advisors’ recommendations. Having sat through plenty of “free lunches”, I’ve realized that constantly being bombarded with free products, services, and support will affect advisors’ objectivity. During these lunches, financial product wholesalers often mention how their product should not represent a client’s entire portfolio, but rather just a piece of it in order to provide the client with greater diversification. What these wholesalers don’t often mention is that advisors can achieve the same level of diversification at a much lower cost – namely without the commission-based products, despite what their charts and graphs may show. This fact can be very easy for advisors to overlook because selling an additional product including free sales support that can be marketed as providing additional diversification is a great way for advisors to increase their revenue stream with minimal effort. For this reason, in order to provide objective advice, more advisors are now providing advice as registered investment advisors instead of commission-based brokers. The difference between these types of advisors is that a registered investment advisor simply provides advice for a fee whereas a commission-based broker can only receive compensation by receiving commissions from financial products. Registered investment advisors therefore claim they provide more objective advice, which is true, but only to an extent as they still face the conflicts of interest noted above as long as they are still charging for their services based on a percentage of assets in the form of a management fee even though they don't actually do any managing. Furthermore, most advisors, including many registered investment advisors, are affiliated with financial services organizations that have selling relationships with large retirement plan service providers. Consequently, all advisors affiliated with these organizations not only have a financial incentive to direct their clients to these large providers, but they likely do not even know that many of the smaller providers exist.
Another factor that could put pressure on advisors to change their service model is the need to conform to the service model of the record keepers, the providers who keep track of fund balances and trades, provide participants access to a website, and send out statements to participants. Because most of the largest record keepers currently charge for their services in the form of revenue sharing or a percentage of assets, financial advisors often have an easier time getting away with charging in this manner as well. This situation harms the participants who bear the costs and perpetuates the status quo because financial advisors often serve as the party plan sponsors rely upon for recommending other providers. Because they can get away with it, financial advisors continue to recommend arrangements in which they can extract as much money as possible from participants’ accounts in the most efficient and non-transparent manner so as to prevent plan sponsors from questioning the basis of their fees. Financial advisors who earn their compensation through sales commissions are often especially in favor of moving the plan to another provider because the largest amount of compensation is often paid to the advisor in the first year. Because the fees are so difficult to understand, plan sponsors are often tricked into thinking they saved money as a result of changing providers when in reality they not only saved nothing at all, but also gave the advisor a big raise! This game is quite easy to play, as advisors simply need to present a less expensive line-up of mutual funds offered by another provider or mention a “new feature” that another provider offers. What advisors often do not clearly explain is that they did not have to structure their compensation to ensure such a large payment in the first year and these exact same mutual funds are often available with the existing provider. Advisors can get away with this game every several years by continuing to tell the same story.
An additional problem that results from percentage-based revenue sharing arrangements is that administrators, who specialize in handling plan design and compliance issues, often earn some (or occasionally all of their compensation) through revenue sharing from participants’ accounts without the plan sponsors’ knowledge which allows these administrators to give the appearance of offering their services at a very low cost or at no cost at all. Because it is record keepers who make this arrangement possible, administrators will not have an incentive to keep the record keepers honest by raising questions about the record keepers’ percentage-based compensation, which like financial advisors, allows them to earn more compensation than they would have earned if they would have charged for their services based on the amount of actual work involved. Additionally, the administrator has an incentive to provide plan design advice that focuses more on maximizing participant contributions than necessary if any part of the administrator’s compensation is based on a percentage of assets. And because the advisor often referred the administrator to the plan sponsor, the administrator will not have an incentive to keep the advisor honest either – otherwise the advisor who controls the relationship will likely advise the plan sponsor to hire a new administrator. Nonetheless, administrators still generally earn the majority of their compensation through a flat annual fee (despite doing much more work than advisors) which is far less than what most advisors earn because the fee is more visible and therefore subject to greater scrutiny. The same conflict of interest holds true for the record keeper who is also often referred by the advisor. And in many cases the same party can perform two or more of these functions, which can cause yet another conflict of interest because providers have no incentive to monitor themselves or recommend another provider who is more competitive. Performing more than one function can also result in a provider not having the appropriate qualifications to perform each function effectively. Administrators, for example, can also be registered to provide investment advice, but just because they are registered does not mean they have any expertise in providing investment advice – and it is more likely than not they don’t, yet plan sponsors are not equipped to question their expertise. There do exist cases, however, where a provider can provide more than one function effectively, such as administration and record keeping services. This arrangement can provide simplification to plan sponsors and minimize the inefficiencies that could result when administrators and record keepers share information. Yet most of these arrangements also comingle the fees and services for administration and record keeping through percentage-based fee arrangements, which serve to simply confuse plan sponsors and make it easier for service providers to overcharge them. Consequently, the secretive nature of the retirement plan industry ensures that plan participants will continue to be overcharged, and all of the service providers who benefit from the current system would prefer to keep this arrangement quiet.
Some record keepers, however, charge a flat fee either based solely on the number of participants or the amount of work involved. This type of arrangement makes it more difficult for a financial advisor to justify charging a percentage-based fee. It also does not allow for financial advisors to take a larger amount of compensation in the first year, so advisors are not incentivized to recommend this arrangement unless they are also charging a flat dollar fee – and there are very few advisors who do. Larger providers may claim, however, that because the profit margins for providing record keeping services on a national scale are so low they therefore need to charge a percentage-based fee in order to stay in business. My response to this claim would be to see how plan sponsors would react if they knew they could choose among other alternative pricing arrangements. I suspect that the large providers’ fees would come down significantly because alternative hard-dollar priced plans would likely cause plan sponsors to question how much their participants are being charged in hard dollars annually. Upon learning this information, many plan sponsors would discover that the fees being passed on to their participants were far out of proportion to the work involved, especially because so few participants wind up taking advantage of all the tools large providers offer to them. Perhaps this new information could lead to more competitive and customized pricing models being offered and some providers exiting the marketplace as a result of being unable to satisfy consumer demand.
Custodians are another party that provides retirement plan services. Their role is simply to hold the money. In return for this service, they typically charge a maximum of 0.08% of plan assets and decrease the percentage as the plan assets increase. While their role sounds simple, they too have conflicts of interest. Some custodians, for example, who also happen to be mutual fund companies, require plan sponsors to offer a certain percentage of their own proprietary funds as default investment options or may require plan sponsors to use their proprietary funds for certain asset classes such as money market or stable value funds which are investment vehicles similar to short-term bond funds. And sometimes custodians may discount their fees in exchange for using one of their own stable value funds as a default investment option in the plan rather than institute a requirement. Many plan sponsors and participants view these stable value funds as a superior alternative to money market funds because of their higher returns, but fail to realize that these higher returns can only be achieved by taking on additional risk, so they are not guaranteed. Guaranteed investment contracts (known as GICs) are similar investment vehicles that appear to be a superior alternative to money market funds as well as a safer alternative to investing equities. However, GICs, like stable value funds, also need to take on additional risk to provide their promised returns, may carry significant surrender charges, and have percentage-based fees that are difficult to understand because they are deeply embedded within the contract. Custodians may additionally collect a small percentage of revenue sharing from the funds (unless the funds are institutionally priced), but plan sponsors and participants are rarely if ever aware of this arrangement either.
Nonetheless, even under hard-dollar fee based pricing for record keeping services, advisors are still likely to attempt to justify a need for their excessive percentage-based fees by making retirement planning far more complex than necessary. One way advisors attempt to create demand for their services is by dividing assets up into multiple classes such as large-cap, mid- cap, and small-cap. I am not disputing the need for diversification, but I am asserting that this diversification can be achieved much more simply – namely by using a total market index fund. For example, a low cost large-cap, mid-cap, and small-cap equity index fund might cost between 0.20% and 0.40%. However, a total stock market index fund - which combines all three of these asset classes - can be purchased with no minimum for 0.05%. By separating out the asset classes, participants are simply purchasing the same set of securities for a higher price. Participants also have to deal with more complexity when they have to figure out what weighting to give each of these asset classes, which results in an unnecessary number of fund choices. This idea of choice is especially important because participants ideally should not be faced with more than approximately six choices – and those choices should be limited to portfolio models with various levels of risk that are rebalanced automatically rather than give participants the option of assembling and rebalancing portfolio models on their own. Excessive choices not only create confusion and needless complexity used to justify useless advisory fees, but most of these additional choices are also composed of individual actively managed funds instead of lower cost passively managed index funds. This situation, contrary to those who believe fund choices in retirement plans are driven by consumer demand, has resulted from the fact that advisors and large providers have complete control over the flow of information and know that actively managed funds typically carry significant kickbacks paid back to them (as opposed to the total market index funds which generally do not) which makes it possible to secure their revenue stream with minimal effort or public scrutiny.
If participants do choose a portfolio model, they often fail to realize that the model is actually composed of multiple funds and meant to be a stand-alone option to reflect the level of risk participants should be taking based on a comprehensive risk assessment. Because participants often prefer not to choose just one investment option so they can feel they are spreading out their risk, they often choose additional funds along with the model which can result in decreasing their diversification and increasing their risk – the opposite of what they intended. There also exists a misconception that participants need advisors to rebalance the models, but record keepers generally allow for participants to have these models rebalanced automatically at varying time intervals. In addition, many mutual fund companies also offer funds of various risk levels that are automatically rebalanced, so advisors have no justification for basing any portion of their fees on portfolio rebalancing.
Another way advisors create complexity is by touting the importance of mutual fund manager selection and evaluation. The idea that participants need the expertise of a financial advisor to consistently pick the best performing mutual funds at precisely the right time is erroneous for multiple reasons. First, the majority of mutual funds do not outperform the market over time after taking all of their fees into account – and significant evidence exists to support this assertion such as the efficient market hypothesis which suggests that one cannot consistently achieve returns in excess of average market returns on a risk-adjusted basis, given the publicly available information at the time an investment is made. To be fair, it is important to point out that there is also evidence to suggest that direct-sold mutual funds consistently outperform broker-sold mutual funds even without the broker’s fees. However, the vast majority of mutual funds in retirement plans are sold through brokers or registered investment advisors who offer the same types of funds as brokers do. The only difference between what brokers and registered investment advisors offer is that registered investment advisors credit back the 12b-1 fees to the participants, but often wind up charging the same percentage back to the participants anyway. Second, while some mutual funds do outperform their benchmark after their fees, there is no known mechanism to consistently identify those outperforming funds in advance. Even if this mechanism did exist, because most retirement plans are participant-directed where the advisor has no control over the participants’ accounts, it would not serve any purpose, as participants would still be responsible for consistently reallocating their portfolios at the right time. Furthermore, participants are usually limited to only a small handful of funds in proportion to the total mutual fund universe, so in the rare circumstance that a participant or advisor possessed this market timing skill, participants would be limited to the choices the plan sponsor decided to offer and therefore could not take full advantage of the resources necessary to effectively time the market. Perhaps the most significant reason that participants do not need the expertise of a financial advisor for the purposes of market timing is that financial advisors have no more knowledge of what is going to happen in the future than anyone else. After all, if the majority of the mutual fund managers with advanced degrees and far more qualifications than a financial advisor can’t figure out how to consistently outperform the market, then how can a financial advisor be expected to have the skill to do so? In addition, due to the nature of the industry, financial advisors spend most of their time either servicing existing clients or prospecting for new clients rather than studying financial markets. Advisors know to surround themselves with “a team of experts” who they claim study the market so they can focus on generating revenue through increasing the plan assets they oversee. Consequently, the idea that financial advisors possess superior knowledge about the future behavior of financial markets is a myth driven by the notion that financial advisors have special expertise and insight the average person lacks and that they actually spend time studying financial markets.
To dispel this notion, it is first best to examine the skills needed to become a financial advisor. In the state of Illinois, for example, to sell certain group retirement plans known as group annuities, advisors simply need to obtain a life and health insurance license, which requires approximately three weeks of study. To sell securities, a financial advisor simply needs to pass the Series 6 or 7 and the Series 63 or 66 examination, which require approximately four and two weeks of study respectively. There is little if any information in any of these examinations that relates to the type of advice a participant would need to plan for retirement. While some may argue that regulatory agencies should therefore impose stricter licensure requirements to ensure greater professional competence, it is the mandatory nature of the licensure requirements themselves that make plan sponsors and participants less wary about the qualifications of financial advisors, so the idea we need them to achieve this goal serves as another myth. Without mandatory licensure requirements, we would still have incompetent financial advisors, but these advisors would face greater scrutiny from plan sponsors and participants and for that reason have greater motivation to provide meaningful advice.
Participants and plan sponsors may also want to question another premise of financial advisors’ services, which are primarily based on time-weighted returns that don’t take into account cash flow contributions and distributions as well as the timing of the returns. If these factors were taken into account, it would be known that some participants could wind up with more money than others as a result of the difference in cash flow and return timing even if their average rate of return was the same over the same time period – and this knowledge would expose the meaninglessness of evaluating past returns of mutual funds in a vacuum as a means to make investment decisions. For example, multiple participants can all have a 10% average return over a five-year period, but wind up with completely different account balances depending on the cash flow contributions and the order in which the returns occurred. As another example, what if an advisor shows a mutual fund with a ten-year track record in the top 5% of its category in order to convince a plan sponsor to add this fund to the list of default investment options? And what if this fund manager had to take significant risk in order to outperform competitive funds with the majority of the out-performance taking place in the first five years? Would the average participant have known precisely when to buy and sell this fund? History shows that participants are far more likely to buy high and sell low, so looking only at the fund performance is extremely misleading. Consequently, participants might request to meet with advisors more often to continually reassess the level of risk they are comfortable taking, which then might lead into a discussion about managing risk and volatility because some mutual funds carry a greater extent of these factors than others. Participants may also seek to understand the stated goal of active mutual fund mangers, which is to outperform the benchmark in their asset class – causing these managers to take additional risk. For this reason, it is clear that providing meaningful financial advice actually does require significant thought, time, and expertise. Most financial advisors, however, who have little qualifications and training and have business models solely based on gathering assets rather than providing a professional and intellectual justification for their services, would have to drastically realign their business models to look more like those of accountants and attorneys (who charge fees based on their time and expertise) in order to justify their fees. In a more competitive market, most financial advisors’ services would become obsolete, as the ideal retirement plan requires no more than six choices, no need to have an advisor rebalance portfolio models, very little evaluation of mutual fund managers, little time with educational meetings, and no ability to time the market. Now most advisors represent nothing more than a drain on participants’ retirement accounts.
As previously mentioned, most retirement plans are participant-directed, where participants can select among the choices the provider and plan sponsor made available to them. However, some plans are trustee-directed, which means participants have no control over the investments they own. Financial advisors often explain a significant portion of the value of their services in terms of their employee education services and their ability to develop a customized portfolio for each participant. Clearly these services have no relevance in this situation, yet plan sponsors often still pay advisors for trustee directed plans in the same manner as they do for participant directed plans.
Furthermore, the very nature of the fees obscures the plan sponsor’s ability to effectively understand, compare, and effectively negotiate them. Due to the cash flow and time constraints of running a business, most employers prefer to pass on most or all of the fees to the participants and do not have time to sufficiently understand the details of the retirement plans they offer. As a result, plan sponsors tend not to look at the fees as closely as they would if they were writing a check instead, meaning they become less price sensitive, just as the withholding tax made us less sensitive to the taxes we pay because we no longer write a check. This lack of price sensitivity becomes even more apparent when the plan sponsor either has little personal money in the plan. Yet there are some plan sponsors who do not only have the means to write a check, but also prefer to do so. In these instances, plan sponsors suddenly become far more price sensitive and put more thought into whether the services they are receiving are commensurate with the fees they are being charged. However, the large plan service providers generally do not make it known that plan sponsors can write a check (and some do not even allow for writing a check) for all of the fees because these providers know their fees and services would then face far greater scrutiny.
From a psychological standpoint, plan sponsors also do not question the value of the services when the fees are based on a percentage of assets because this percentage gives the appearance of a good deal. Getting an entire package of services for only 1% doesn’t sound like much, but with an account balance of $2 million, that comes out to $20,000, which can be quite excessive for plans with few participants and little work to do. And is it fair if another plan has the same number of participants, but has $5 million in assets and therefore allows the provider to take significantly more money out of the participants’ accounts despite the fact that the plan doesn’t require any more work? Clearly there is reason to question the fairness of this fee structure, yet plan sponsors rarely feel they have the power to negotiate lower fees and do not realize that some providers are willing to offer a flat dollar fee structure. On the other hand, plan sponsors who do negotiate often feel they have competitive fees after receiving a reduction in the percentage their participants are being charged when in reality, they are just being ripped off a little bit less. Less excessive fees are still excessive. When put in terms of hard dollars, however, a plan sponsor may be more inclined to scrutinize the fees instead of being so easily satisfied.
Providers often argue that their fees are reasonable by providing fee benchmarking studies showing that a client is paying fees that are in line with other companies of comparable size. These comparisons are misleading because they simply indicate that fees are similar to other companies, but that does not mean other companies’ fees are reasonable either. They also primarily disclose fees only terms of percentages rather than hard dollar costs and as a result, do not provide a true understanding of whether or not the fees being charged are reasonable in proportion to the level of services provided.
Providers may further argue that all plan sponsors need to see is the total cost and that delving into each component has less importance by pointing out that people only care about the total cost when they buy a car. Unlike a retirement plan however, you aren’t going to buy the wheels and seats separately from another company – you are getting everything from one place. With retirement plans, while there are some bundled providers who provide a one-stop shop for all investment advisory, record keeping, administration, and custodial services, many plans have multiple companies performing these tasks with different levels of expertise. Therefore, only by comparing the cost of each service offering for each part of the plan in hard dollars can a plan sponsor obtain meaningful benchmarking information.
Another means providers use to keep plan sponsors and participants in the dark is to charge a flat fee for administration directly to the business and decrease this fee as the assets increase so as to make it appear that they are reducing the fees. The reason they can reduce the fees is because the revenue sharing or percentage-based fee in absolute dollars increases as the account balance increases. Plan sponsors don’t think much about this arrangement. All they see is their fees being reduced, and for this reason they think they are being “taken care of.” A second form of deception some providers employ is to have plans set up so participants receive a credit, which gives the appearance of a refund. This credit is often simply a return of the revenue sharing payment that a record keeper or financial advisor would have received has they decided to earn their compensation through revenue sharing. Additionally, the providers who actually charge hard dollar fees may take the revenue sharing payment and issue a credit against the fee they are charging which also gives the appearance that the plan sponsor is getting some kind of discount, but this credit simply means the provider is not charging twice. In many cases, the record keeper and financial advisor often charge a percentage of the account instead which is usually either equal to or more than the revenue sharing payment itself. This credit often creates confusion because plan sponsors believe providers are discounting their fees. In reality, however, the plan sponsor could have simply purchased the same funds (or very similar funds) without the revenue sharing fee in the first place, so the credit is nothing more than an accounting gimmick. Furthermore, as previously mentioned, both record keepers and financial advisors often reduce the percentage payment as the assets increase, which also gives the plan sponsor the appearance that they are receiving a discount, when in reality their fees are still increasing, just at a decreasing rate. In fairness to the providers, some of them may not even be trying to trick the plan sponsors, yet the plan sponsors rarely have a full understanding of how the fees are charged. As a result, when a competitive provider displays honesty by openly charging a flat annual fee, plan sponsors often view this arrangement as more expensive because they believe their current services are “free” or “discounted” since they either don’t see any fees or see they are receiving a credit.
As a whole, the fees service providers charge bear no relationship to the services they offer. Instead, fees for the providers who dominate the industry are based on factors such as average participant account balance and annual plan contributions rather than the amount of time involved. This pricing model helps these large providers generate more revenue, but they do not necessarily provide higher quality services in return for this additional revenue. As a result, plan sponsors cannot effectively use providers’ pricing as a means to determine the quality of their services, which is extremely important because providers who lack sufficient expertise can make costly mistakes. To elaborate, some providers of investment advisory, record keeping, and administration services actually possess a greater level of sophistication than other providers in spite of being able to offer services at a lower price, which suggests that the pricing of retirement plan services is completely distorted. Until pricing models change to more accurately reflect the value of services provided and plan sponsors and participants gain an understanding of the cost of the services they are receiving, the retirement racket will continue.
In reference to the recent fee disclosure regulations, while they will allow plan sponsors and participants to see the fees they are charged, the claim that these regulations are meant to help them masks their real purpose. To elaborate, one small retirement plan service provider, despite having already clearly disclosed its low, flat-dollar administration and record keeping fees on its website, recently had to announce a fee increase in order to comply with the new regulations that mandated this provider disclose the fees that it was already disclosing! I experienced this issue firsthand as I was forced to inform several of my clients who used this provider of this fee increase and was caught off guard. Upon speaking to the provider about why I never received a warning, I was informed that the timing of this rule was so uncertain and the guidance it received on how to comply was so unclear that there was no way it could have warned me ahead of time. This situation made me think about how and why the larger providers were so much more prepared and why they were all able to claim that they were on the forefront of fee disclosure and therefore receive a significant competitive advantage over their smaller competitors. When these types of rules are made under the guise of protecting the public, it is typically the largest and most politically connected companies that benefit the most while the smaller providers lack the resources to influence legislation. So this regulation has simply resulted in greater difficulty for small service providers to compete, thereby further consolidating the power of the small number of larger providers that already dominate the marketplace. While it is too early to draw any conclusions, it would be an interesting exercise to take a closer look at the profitability of the largest providers in the years preceding and following the fee disclosure regulation as well as the number of providers in the marketplace to see the effect the fee disclosure regulations had. So far I don’t believe any of the large providers have suffered as the movement of plans I’ve seen has mainly been from one large provider to another.
For those “industry experts” who claim the new regulation is working in the participants’ favor, I would suggest calling a random sample of 1,000 plan sponsors and ask each of them if they understand all of the fees they are being charged. As a financial advisor who has called well over 1,000 plan sponsors to discuss their fees, I have yet to come across a single plan sponsor who has a firm grasp of what the fees are and how these fees are calculated – and some of these businesses include banks and accounting firms! More specifically, when I have asked plan sponsors to answer such questions as: “How much money has been taken out of participants’ accounts in hard dollars for each of the retirement plan services for the past several years?” and “How much would you be willing to pay for each of the retirement plan services you are receiving?” not a single one of them I have spoken to has had enough knowledge to provide a clear answer. Instead, the responses I received have been mainly along the lines of “Don’t they have to disclose those fees now?” Therefore, contrary to the belief that plan sponsors and participants will show more of an interest in understanding and comparing their fees, they now have even less curiosity than before because they falsely assume that a new mandatory fee disclosure rule means they are being charged fairly. They also continue to lack an understanding of the market value of these services, which means the sellers rather than the buyers will continue to determine prices – exactly the opposite of what occurs in a free and competitive market.
In the spirit of “transparency”, the Department of Labor has a section on its website showing all of the comments that many large organizations had in reference to the fee disclosure rules. While some of the large retirement plan service providers and associations raised concerns about increased regulatory costs and restrictions on participant services and choices, not a single one of these organizations voiced any concern regarding how the increased regulatory burden of the rule itself would impact the competitiveness of the industry. Ironically, it is this burden that has wound up limiting consumer choice, raising consumer costs, and stifling competition, so the large retirement plan providers and associations who depend on these large providers for support have no reason to recommend any radical changes to the industry. The smaller providers, on the other hand, did not make comments, as they lack the resources to use their time in this manner.
Large providers also enjoy the luxury of using defamation laws and existing financial advisor regulations to silence and intimidate whistle-blowers in the industry who attempt to expose their business practices, but lack the legal resources of these large organizations. These laws make it less likely that honest advisors will disseminate negative but true information about large providers and more likely that large providers will make the same kinds of statements against whistle-blowers, knowing they lack the resources to fight back. Ironically, those who fear harm to their reputation from others disseminating false and/or defamatory information would have more protection from these actions without defamation laws because people would likely be more skeptical of these kinds of claims if everyone could communicate freely without the threat of coercion.
Another way that regulations can prevent honest financial advisors from protecting consumers from predatory practices can best be explained by my experience as an independent contractor with a broker-dealer, an organization that trades securities either for its own account or on behalf of its customers or other firms. Upon sending out written communication based on publicly available information from 5500 forms (the retirement plan tax forms that businesses with plans are required to file) to prospective clients regarding excessive fees charged by a large retirement plan service provider, my compliance department informed me that I could not only no longer share this type of information with prospective clients, but I could also no longer share any information from 5500 forms with prospective clients as a means of developing a client relationship. The reason for this restriction on my activities stemmed from a selling relationship that this provider had with my organization allowing financial advisors like me to offer the services of this provider. While the stated purpose of these relationships is to help give advisors a broad range of products and services to offer to clients, an unintended result is to insulate these providers from criticism and the negative economic consequences they would have faced had the public become aware of this conflicted arrangement. I do not believe fault lies with broker-dealers but rather the mandatory regulations themselves. All the broker-dealers can do is follow the rules set forth by regulatory agencies that are meant to perpetuate the status quo rather than act to protect the retirement plan participants.
In addition, broker-dealers also have strict rules relating to outside business activities. The Financial Industry Regulatory Authority (FINRA) explains how these activities are defined:
“No registered person may be an employee, independent contractor, sole proprietor, officer, director or partner of another person, or be compensated, or have the reasonable expectation of compensation, from any other person as a result of any business activity outside the scope of the relationship with his or her member firm, unless he or she has provided prior written notice to the member, in such form as specified by the member.”
Just because registered representatives of a broker-dealer provide written notice of their outside business activities, however, does not necessarily mean the broker-dealer will approve these activities – even if the registered representative is not receiving any outside compensation. A good test to determine the real purpose of these rules would be for registered representatives of broker-dealers to submit this article to their compliance department for approval to share with the public. If by some miracle the article actually made it through the review process, it would likely be unrecognizable due to all of the “compliance changes”, which are not made to protect the public, but rather to protect broker-dealers from liability and keep the public in a state of ignorance.
The increasing regulatory burden has also created a culture of service providers who benefit from this burden and therefore support the status quo. Administrators, for example, who as previously mentioned are primarily responsible for retirement plan compliance issues, would likely not even exist in a free market, so their natural inclination is to support more regulations and tout their importance for protecting participants. Financial advisors and record keepers benefit as well, mainly by offering “fiduciary liability protection” services, which may also be unnecessary in a free market, but with the current regulatory environment, service providers can use the fear of litigation to justify their services. This fear of litigation has the potential to be abused by service providers who can induce plan sponsors to make fiduciary decisions on the basis of seeking protection from litigation when in reality the liability protection services they purchased did not provide the kind of protection they thought they were receiving. To elaborate, there are different types of fiduciary services. One type is an ERISA 3(21) fiduciary. To put it simply, this type of fiduciary does not take discretionary control over the selection and monitoring of plan assets, which means the level of liability protection is more limited than service providers may lead plan sponsors to believe. Another type of fiduciary is an ERISA 3(38) fiduciary. While this type of fiduciary does take discretionary control over the selection and monitoring of plan assets, the plan sponsor is still responsible for monitoring the 3(38) fiduciary, so even this type of fiduciary does not eliminate liability. The liability protection issue is more complicated, however, as not all 3(38) fiduciaries necessarily provide the same level of liability protection, so plan sponsors should ask precisely how much and what type of liability these types of fiduciaries intend to actually assume, especially because some 3(38) fiduciaries market themselves as providing discretionary advice when in reality they stop short of doing so. To further complicate matters, there are also other fiduciary protection services such as co-fiduciary services, fiduciary warranties, and fiduciary guarantees. Each of these services also provides a more limited level of liability protection than plan sponsors often realize, but few take the time to read the fine print. This incomplete understanding of fiduciary protection services can actually create a moral hazard in which plan sponsors may take less care in monitoring their service providers and therefore take on additional risk because the perception of fiduciary liability protection provides them with a false sense of comfort.
This culture of dependency on mandatory regulations is unfortunately not limited to administrators, financial advisors, and record keepers. ERISA (Employee Retirement Income Security) attorneys also contribute to the retirement racket as they bear the responsibility for communicating the arcane rules that nobody understands and charge significant fees to help plan sponsors comply with these rules. They spend most of the time writing not about the dangers of the rules to the plan sponsors and participants, but rather what steps plan sponsors should take to comply. In other instances, they may write about their own ideas for potential rule changes, but never about abolishing the centralized rules themselves – otherwise they may have to look for other work as they benefit from increased complexity and litigation. For this reason, it should come as no surprise that so many ERISA attorneys believe that only through central economic planning can retirement plan participants receive more “transparent” information and “protection” from service providers who may take advantage of them.
The dependency of service providers on the status quo for their livelihood has also given rise to professional service organizations that exist to advance the interests of their members. The American Society of Pension Professionals & Actuaries (ASPPA), for example, has as its mission:
- To educate retirement plan and benefits professionals
- To preserve and enhance the private pension system
The second part of the mission reminds me of the following quote by Peter Drucker, educator and business author: “There is nothing so useless as doing efficiently that which should not be done at all.” Have we learned nothing from attempting to make a system more efficient that should never have existed at all? Why try and more efficiently rip off plan sponsors and retirement plan participants?
The National Association of Plan Advisors (NAPA) has a similar mission. Two parts of its mission listed are:
- NAPA’s core purpose is to enhance retirement security in America.
- NAPA members pledge to comply with all requirements relating to retirement plans that are or will be required by the SEC, DOL, or any other governing agencies.
By focusing on security and compliance as opposed to freedom and competition and having firm partners that consist of institutional and politically connected broker-dealers, record keepers, registered investment advisors, and mutual fund companies who benefit most from our current system, NAPA provides moral sanction to the retirement plan racket and its pledge to comply with mandatory regulations implies that we should sacrifice liberty for the security that our vertically integrated system provides. Rather than act as watchdogs for these regulatory agencies whose real purpose is to collude with large businesses to stifle competition, these organizations act more like lapdogs. If these organizations were truly interested in protecting people’s retirement savings, they would aim to abolish the Department of Labor and IRS and replace them with nothing. They would also suggest to employers that the time, energy, and costs of offering a retirement plan to their employees often outweighs the benefits and question why people who are completely unqualified to make retirement plan decisions are in a position to make these decisions for employees who are completely unqualified to manage their own investments as well as why retirement plan contribution limits are so much greater for employer-sponsored plans than for individuals. It is unlikely, however, that they will make these suggestions or raise these questions because their mission is to serve their members who prefer the status quo.
Having more organizations that preserve our current system serves no benefit. Instead, we could use more dissenting voices and truth seekers who aim to expose our current system for what it really represents: an attack on both economic and civil liberties. If we had more independent thinking consumers of retirement plan services, we might begin to explore ideas which suggest that economic and financial freedom cannot exist without personal freedom and civil liberties because freedom is en entire package that cannot be sliced and diced. We also might have a retirement plan industry that would lack the perceived benevolence and social legitimacy it now enjoys because the public would see through this façade and understand the true nature of the collusion between regulatory agencies and retirement plan service providers. Unfortunately, however, most people are still so socially conditioned to believe that our world could simply not function without organizations such as the Department of Labor and IRS that they view any assertion that these organizations could actually serve as the source of our inadequate retirement savings as too radical to take seriously. Arthur Miller explained this conditioning well when he said: “The thought that the state has lost its mind and is punishing so many innocent people is intolerable. And so the evidence has to be internally denied."
Because of the way our current system operates, all of the time and energy that service providers have devoted to providing these unnecessary services has diverted their resources away from more valuable services they could be offering retirement plan participants that would focus more specifically on helping them achieve their retirement goals. This diversion inevitably results from central economic planning which will always fail because central planners cannot possibly create rules that constantly adapt to the ever changing and diverse needs of millions of people whose knowledge is widely disbursed rather than contained in a database that these planners can access. As for what the industry would look like in the absence of mandatory requirements, it is difficult to describe precisely, as voluntary arrangements are less predictable than political institutions. A potential hypothesis would be that a more flexible system of competing regulatory agencies would arise that would place more stringent checks and balances on the retirement plan service providers and incentivize participants and plan sponsors to look more closely at their credentials. This competition and profit-based regulatory system is necessary for the advancement of knowledge because in the absence of a profit motive, there are no means by which service providers can learn if they are meeting the needs of plan sponsors and participants. For example, by what means will regulators determine the ideal number of investment options in a retirement plan and what type of investments should be included? How will regulators determine the necessary level of qualifications and ongoing professional education financial advisors should possess in order to deliver their services most effectively? Are these services best delivered by an advisor whose background focuses more on accounting, banking, or insurance? How thoroughly should investment options be reviewed and what should this review entail? What is a reasonable amount for service providers to charge? Do regulators have special access to knowledge that allows them to provide us with guidance that profits and losses fail to show us? The only way to discover any clear solutions to these questions is through a system that provides customer feedback and promotes self-discovery by means of unrestricted profits and facilitates a public process of critical exchange that allows for people to make mistakes. Without the ability to make mistakes, we can never learn anything and wind up with systems that exist to stifle the advancement of knowledge and the search for truth. As Herbert Spencer, an English philosopher, biologist, sociologist, and political theorist once said: “The ultimate result of shielding men from the effects of folly is to fill the world with fools.“
Not surprisingly, centrally enforced rules do not make anyone smarter. If anything, the result of additional rules has been just the opposite, as plan sponsors and participants are now bearing increased compliance costs and have replaced what little individual initiative they had left to become more informed investors with a desire to adhere to the rules of a one-size fits all bureaucratic system. Consequently, plan sponsors and participants now have a false sense of security, while retirement plan providers continue to increase their fees, enjoy protection from competition, and keep consumers in a state of ignorance. In addition, regulators are far removed from the needs and concerns of participants, and for this reason, cannot possibly create a regulatory structure that works in participants’ favor. On the contrary, this vertically integrated structure serves to do nothing more than strengthen the partnership between regulators and large providers to the point where regulators have become beholden to the interests of the industry they claim to be regulating. This partnership is not indicative of capitalism, but rather a system called corporatism, which, as Ron Paul has pointed out, is “ a system where businesses are nominally in private hands, but are in fact controlled by the government. In a corporatist state, government officials often act in collusion with their favored business interests to design polices that give those interests a monopoly position, to the detriment of both competitors and consumers.” To expound upon Ron Paul and what he stands for, he brought the message of capitalism to the national stage in a way that no other person ever has, and helped distinguish between a pure capitalist system and the crony capitalism we have now which does not even remotely resemble a free market economy. For these accomplishments, I credit him for spurring an intellectual revolution that helped provide me with the resources to expose the retirement plan industry as a racket. I also credit Murray Rothbard, an economist and historian who strongly influenced Ron Paul’s thinking. I do not know exactly why Ron Paul gravitated more towards Rothbard rather than other great thinkers of his time, but I suspect he shared a similar aversion to coercive rules and admired the personal integrity Rothbard displayed in consistently condemning governmental abuses of power and all forms of central planning. Because of his ideas, Rothbard gained the nickname “The Enemy of the State” as he served as the greatest threat to those in power. His ideas pose so great a threat that he has largely been excluded from history, which is why few if any people have heard his name – even those who have studied economics. And in a Fox News interview with Whole Foods CEO and author of Conscious Capitalism John Mackey, for example, Mackey remarked: “I began to read widely and I read a number of free market economists like Frederick Hayek and Ludwig Von Mises and Murray Rothbard and I discovered that these explanations of the world worked a lot better than the philosophy I had previously.” While Fox News should be commended for providing a forum for a CEO who espouses the benefits of capitalism, it's notable that the transcript of the interview left out Rothbard’s name. The reason for the omission may not be clear, but it is clear that Rothbard's spirit and philosophy of Anarcho-capitalism lives through Ron Paul, and those in power can no longer act as the gatekeepers of truth and control the flow of information the way they once did.
In summary, centralized and politically driven systems attract unscrupulous individuals because they reward dishonest practices while making the path to success more difficult for honest people who wish to expose the truth. Only decentralized, non-coercive systems and the understanding that these types of systems alone, based upon voluntary and mutually beneficial exchanges, are capable of encouraging honest behavior and helping plan sponsors and participants effectively deal with the challenges of a complex investment marketplace. A system where information is equally available to buyers and sellers will necessarily make people less gullible and much more discriminating in their investment decisions. Participants will become much less likely to believe retirement plan providers’ sales pitches without understanding all of the details. To put these systems in place, we don’t need more centralized control. We simply need more freedom.