House Republicans are coming for your 401(k)

Securities and Exchange Commission (SEC) Chairman Jay Clayton recently acknowledged that the agency may soon take away hardworking Americans’ right to defend our retirement savings against corporate criminals in court. Now, another front seems to have opened in this war on investor protections — one that could leave anyone with an IRA or 401(k) at the mercy of corporations that would lie to or deceive people about their stocks.

Corporate America is working overtime to ensure investors harmed by financial fraud cannot hold them accountable. Industry lobbyists are pushing the SEC to block investors from joining together as a group to recover the losses from widespread violations of securities laws. Such a move would bar cheated investors from enforcing their own rights in lawsuits that have recovered billions and serve as a crucial deterrent to the kinds of devastating fraud that precipitated the financial crisis.

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Last week, the House Subcommittee on Capital Markets, Securities, and Investment doubled down on this destruction by going after state protections against the kind of widespread fraud that could crush many Americans’ plans for retirement. The subcommittee considered H.R. 5037, which would block private enforcement of state protections against securities fraud and even restrict a state’s ability to defend its own citizens in enforcement actions.

 

The bill’s broad language is designed to preempt any state law that even tangentially touches on securities fraud. The North American Securities Administrators Association (NASAA), the oldest international organization devoted to investor protection, calls H.R. 5037 an “attempt to tie the hands of the regulators who are the ‘cops on the beat’ and the closest to Main Street investors in favor of large companies engaged in or suspected of securities fraud.” NASAA’s opposition letter goes on to decry these policies as “overwhelmingly against the interests of all law-abiding market participants” – impassioned emphasis theirs.

H.R. 5037 is plainly a “get out of jail free” card for white-collar criminals — who so rarely see the inside of a jail cell as it is. For more than a century, states have been free to regulate securities that have real and sometimes devastating impacts on their residents. Clayton himself remarked in a recent speech, “state … regulators play a critical role in protecting Main Street investors.”

Because the SEC has limited resources, state law enforcement officials work to ensure their residents recover retirement savings stolen from them in fraudulent schemes and scams. Indeed, there has been a 33 percent decline in federal securities enforcement and a more than 80 percent drop in SEC settlements since 2016 — making state action more necessary than ever.

But H.R. 5037 would take away states’ ability to protect their constituents from financial ruin at the hands of corporate fraudsters and Ponzi schemers. New York Attorney General Barbara Underwood warns H.R. 5037 would “likely cause a dramatic increase in securities fraud, creating more victims and jeopardizing Americans’ retirement savings.”

Even if they are not residents of the state bringing an action, American investors benefit significantly from the crucial role state regulators play in deterring financial fraud and protecting the integrity of U.S. capital markets. State-level enforcement is often the only way the worst of the worst corporate criminals are held accountable for fraud that weakens our entire financial system.

Passing H.R. 5037 would also sharply conflict with President TrumpDonald John TrumpTrump: I hope voters pay attention to Dem tactics amid Kavanaugh fight South Korea leader: North Korea agrees to take steps toward denuclearization Graham calls handling of Kavanaugh allegations 'a drive-by shooting' MORE’s promises to strengthen U.S. business against our competitors. Foreign investors hold more than $6.2 trillion in stocks in U.S. corporations precisely because American markets are particularly well policed compared to those in many other countries, thanks in part to our federalist system.

The security of our retirement savings already faces unprecedented danger. Clayton broke with every last one of his predecessors at the SEC — Republican and Democrat — when he failed to stand for investors’ right to join together against fraud. It is unclear what may happen next.

H.R. 5037 would further encourage corporations and Wall Street firms to rip off investors. If combined with a policy reversal at the SEC, the bill would leave almost every American saving for retirement with no hope of recovering stolen money. Congress must pass legislation to protect investors from life-altering fraud, not serve as its active accomplice.

Paul Bland is executive director at Public Justice, a national public interest law firm that works to protect environmental sustainability efforts and challenge predatory corporate conduct and government abuses.