Opponents of the fiduciary rule will have been delighted by recent news of a CHOICE Act provision to overturn the rule, as well as confirmation that doing so is a goal of the new head of the DOL. However, there is more good news today. A number of news outlets are picking up on a new argument from a law firm that offers a novel and compelling challenge to the fiduciary rule. In essence, it argues that the fiduciary rule violates an individual’s right to free speech. The DOL has admitted that in previous financial legislation Congress never conceived of a difference between personal or professional speech, and this new argument seems to build on that newly-formed distinction. Well-established legal guidelines from the Supreme Court support the argument that a distinction between types of speech and “content-based” restrictions should be held to strict scrutiny.
FINSUM: The fiduciary rule has a lot going against it at the moment, and this is a new legal argument that apparently holds water and exploits the rule’s first amendment-related weaknesses. It is looking ever more like the rule will never be implemented.