New Administration, new Congress: personnel

December 02, 2016

With the focus currently on how President-Elect Trump will staff his new Administration and on the recent re-election of Nancy Pelosi (D-CA) as House Minority Leader, we provide a brief review of the key Administration jobs that President Trump will have to fill, and the key Congressional leadership, that directly affect retirement savings policy.

Staffing the new Administration

There are three critical sub-cabinet positions that affect retirement policy: the Department of Labor Assistant Secretary of the Employee Benefits Security Administration (EBSA); the Department of the Treasury Deputy Assistant Secretary (Tax Policy) for Retirement and Health Policy; and the Director of the Pension Benefit Guaranty Corporation.

(We discussed some of the substantive issues that the Trump Administration EBSA, Treasury and PBGC will be dealing with in our recent article on the election. We repeat them below because they provide the background against which Trump Administration personnel decisions should be understood.)

EBSA

The current head of the EBSA, Phyllis Borzi, has been in that position since the beginning of the Obama Administration. She has led the Conflict of Interest rule project and initiatives to provide a path forward for state private sector retirement plans. She has, however, been generally reluctant to move on such issues as electronic participant communications and Open MEPs. There are several critical issues currently before her department, including lifetime income disclosure rules, fixing the annuity carrier selection safe harbor and guidance with respect to the use of a clearinghouse. Obviously, the Conflict of Interest rule project (and, more broadly, issues under the Affordable Care Act) have slowed progress on these issues.

The new Assistant Secretary EBSA will have a significant role in setting priorities and driving policy in the areas for which she is responsible: generally retirement plan fiduciary and reporting and disclosure rules. Perhaps most significantly, he or she will have an important (perhaps the most important) voice in the decision about whether to repeal the new conflict of interest rule or, if it is not repealed, how it will be implemented.

Treasury

The current Treasury Deputy Assistant Secretary (Tax Policy) for Retirement and Health Policy is Mark Iwry. Like Assistant Secretary Borzi, Mr. Iwry has been in the Obama Administration from the beginning. From the beginning he has made implementation of a federal Auto-IRA and, to a lesser extent, an expanded Saver’s Credit a priority. While that effort has failed at the federal level, there is a robust effort in certain states to implement Auto-IRAs programs. And, while the myRA – another of Mr. Iwry’s initiatives – seems (thus far) not to have been widely adopted, there are several recent proposals (see, e.g., the NYC Nest Egg proposal and the Report of the Bipartisan Policy Center’s Commission on Retirement Security and Personal Savings) that would significantly increase its use.

The new Deputy Assistant Secretary (Tax Policy) for Retirement and Health Policy will have a critical influence on the new Administration’s retirement savings tax policy and, in that regard, a voice in how retirement savings tax policy fits within a broader comprehensive tax reform project. It’s probably unlikely that he or she will continue support for the Obama Administration’s Auto-IRA and Saver’s Credit expansion projects, both of which have generally been opposed by Republicans, but in truth we do not know what the Trump Administration’s attitude towards these programs will be. The myRA has been less controversial, but it’s unclear that a Trump-appointed Treasury benefits official will champion it. (We note that this particular position does not require consent by the U.S. Senate).

PBGC

The current PBGC Director is Tom Reeder. With respect to the single employer PBGC insurance system, under the Obama Administration, PBGC policy was at first driven by concerns about PBGC’s “deficit.” In that regard, increasing premiums dovetailed nicely with policymakers’ concern to show more “revenues” – under the budget, PBGC premiums count as revenues even though they cannot actually be spent outside of the PBGC pension insurance programs. More recently the Administration has raised concerns that further increasing premiums may encouraging too many employers to fully (or partially, via de-risking) exit the single employer insurance system. The Obama Administration has, however, consistently advocated giving PBGC more control over setting premiums and giving it the ability to include sponsor financial condition as a variable of the premium-setting equation.

The other issue that has dominated PBGC policymaking has been a profound concern about the near-term viability of the multiemployer insurance system.

The new Director of PBGC (or Mr. Reeder if, as some have suggested is possible, he stays on, since he was appointed, under the controlling statute, for a 5 year term, unless removed by the President) will have to grapple with all of these issues – the appropriate level of single employer premiums and whether they should reflect sponsor financial condition, pressure to raise premiums to produce “revenue” for the budget and the serious problems in the multiemployer insurance system.

Changes in Congressional leadership

In both the House of Representatives and the Senate there are two committees with primary jurisdiction over retirement savings policy: In the House, the Ways and Means Committee (responsible for tax policy) and the Education and the Workforce Committee (responsible for “ERISA” issues such as fiduciary responsibility and reporting and disclosure). And in the Senate, the Finance Committee (responsible for tax policy) and the Health, Education, Labor & Pensions (HELP) Committee (responsible for ERISA issues).

The new (115th) Congress will not take office until January 4, 2017. We have (in some respects) a pretty good idea of what the leadership of that Congress will look like, but that Congress won’t formally organize until early 2017. Here is our current understanding of who will be leading these key committees.

House Ways and Means: The current Chairman, Kevin Brady (R-TX), is expected to stay on. The current Ranking Member, Sander Levin (D-MI) has announced his intention to step down. Showing how fluid the current situation is: until recently it was thought that Xavier Becerra (D-CA) would take Representative Levin’s place as Ranking Member. But on December 1, 2016 Governor Jerry Brown tapped Representative Bacerra to be California’s Attorney General. Richard Neal (D-MA) is now the likely new Ways and Means Ranking Member. Representative Neal has taken an active interest in retirement policy and has sponsored a significant piece of retirement policy legislation.

House Education and the Workforce: The current Chairman, John Kline (R-MN), is retiring, and Virginia Foxx (R-NC) is expected to take his place. Robert C. “Bobby” Scott is expected to stay on as Ranking Member. Note also that Lou Barletta (R-PA), who sits on this Committee’s (important for retirement policy) Subcommittee on Health, Employment, Labor, and Pensions, is also rumored to be a candidate for Secretary of Labor in the Trump Administration.

Senate Finance: The current Chairman, Orrin Hatch (R-UT), and Ranking Member, Ron Wyden (D-OR), are expected to stay on.

Senate HELP: The current Chairman, Lamar Alexander (R-TN), and Ranking Member, Patty Murray (D-WA), are expected to stay on.

So – currently at least – there are more changes in relevant committee leaderships in the House than in the Senate.

House and Senate Leadership: Paul Ryan (R-WI) and Mitch McConnell (R-KY) are both expected to stay on as Speaker of the House and Senate Majority Leader, respectively. Nancy Pelosi (D-CA) is expected to stay on as House Minority Leader, and Chuck Schumer (D-NY) is expected to take over as Senate Minority Leader. Comprehensive tax reform is beginning to emerge as a top legislative priority for the 115th Congress. Speaker Ryan, who has previously served as Chairman of the House Ways and Means Committee and who led the House Republican effort to develop a comprehensive tax reform proposal, is expected to have a significant voice in decisions on tax reform policy, including with respect to retirement savings tax incentives.

* * *

It is, obviously, still early days. We will update this survey of key retirement savings policymakers in January 2017.

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