Senate Panel Approves Peirce and Jackson as SEC Commissioners

The Senate Banking Committee voted unanimously Nov. 1 to approve Hester Peirce and Robert Jackson, Jr. as members of the Securities and Exchange Commission. Their nominations will now move to the full Senate for confirmation.

Peirce, a Republican, is a senior research fellow at the Mercatus Center at George Mason University and the director of Mercatus’ Financial Markets Working Group. Previously, she served on the staff of the Senate Banking Committee under Chairman Richard Shelby (R-AL), at the SEC for eight years as a staff attorney and counsel to Commissioner Paul Atkins, and as an associate at a Washington, D.C. law firm.

Jackson, a Democrat, is a law professor and director of the Program on Corporate Law and Policy at Columbia Law School, where he has focused on executive compensation and corporate governance matters. Prior to joining Columbia in 2010, Jackson served as a senior policy adviser in the Treasury Department’s Office of the Special Master for TARP Executive Compensation, and practiced law in the executive compensation department of a New York law firm.

If they are confirmed by the full Senate, Peirce and Jackson will fill the two current vacancies on the five-member SEC, joining Democrat Kara Stein and Republican Michael Piwowar. In May, the Senate confirmed Jay Clayton as President Trump’s nominee for SEC Chairman, the fifth member. While the confirmation of Peirce and Jackson would round out the full commission for the first time in nearly two years, more turnover at the SEC may lie ahead: Stein’s five-year term expires this year, and Piwowar’s expires next year (although SEC commissioners may continue to serve for up to 18 months after their terms expire if they are not replaced before then).

In an Oct. 24 workshop at the 2017 ASPPA Annual Conference in National Harbor, MD, ERISA attorney Fred Reish expressed his belief that the full commission will be in place after Jan. 1, at which point he expects that they will turn their attention to the DOL fiduciary issue and coordination with the DOL on a new or revamped fiduciary standard.

When that happens, Reish said, he expects the DOL to take the lead on ERISA issues, since ERISA sets forth important concepts like the prudent person rule, the duty of loyalty to plan participants, reasonable limits on advisor compensation (which Reish said he expects the DOL to “soften”) and prohibited transactions and PTEs. Meanwhile, the SEC will likely take the lead on disclosures, he said. Reish also believes that “something along the lines of the prudent person rule and duty of loyalty standard is likely from the SEC.”

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