GovTrack’s Bill Summary
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Library of Congress Summary
The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress.
9/19/2012--Passed House amended.
Amends the Securities Exchange Act of 1934 to permit a non-registered municipal securities advisor, on behalf of a municipal entity or an obligated person, to: (1) provide advice regarding either municipal financial products or the issuance of such products, and (2) undertake the solicitation of a municipal entity.
Prohibits the rules of the Municipal Securities Rulemaking Board (MSRB) from regulating as municipal advisors the activities of certain persons specifically excluded from the definition of municipal advisor, namely:
(1) a broker, dealer, or municipal securities dealer serving as an underwriter;
(2) an investment adviser registered under the Investment Advisers Act of 1940 (or persons associated with such investment advisers who are providing investment advice);
(3) a commodity trading advisor registered under the Commodity Exchange Act (or associated persons who are providing advice related to swaps);
(4) attorneys providing legal advice or services that are of a traditional legal nature; and
(5) engineers providing engineering advice.
Limits the fiduciary duty a municipal advisor and any associated person owe to a municipal entity (or associated person) the advisor advises to those times when the advisor acts pursuant to an engagement, for compensation, by the municipal entity or obligated person to advise on either municipal financial products or the issuance of municipal securities.
Directs the MSRB to require that a municipal advisor act in accordance with its fiduciary duty to municipal entity clients, but only in connection with specified activities involving those clients.
Prohibits the MSRB from barring:
(1) principal transactions by municipal advisors, or
(2) the receipt of compensation based on standard compensation involving the purchase or sale of a security or other instrument (including deposit or foreign exchange).
Authorizes the MSRB to:
(1) issue rules requiring a municipal advisor to engage only in transactions or receive compensation consistent with the advisor's fiduciary duty, and
(2) prohibit a municipal advisor who has been engaged to provide advice with respect to an underwritten offering of securities from acting concurrently as underwriter of such offering.
Redefines "investment strategies" as plans or programs for:
(1) investment of the direct proceeds of municipal securities (but not other public funds) which are neither municipal derivatives nor guaranteed investment contracts, and
(2) the recommendation and brokerage of municipal escrow investments, where such proceeds and investments are either known to the municipal advisor to comprise funds or investments maintained exclusively in a segregated account, or have been identified in writing as funds or investments constituting the proceeds of municipal securities or municipal escrow investments.
Excludes specified practices from "investment strategies" (and, therefore, from regulation under this Act), including:
(1) merely acting as a broker or principal for the purchase or sale of a security or other instrument (including deposit or foreign exchange);
(2) furnishing a list of, or price quotations for, investment options or securities or other instruments which may be available for purchase or investment or which satisfy investment criteria specified by a municipal entity;
(3) acting as a custodian;
(4) providing generalized information concerning investments not tailored to the specific investment objectives of the municipal entity; or
(5) providing advice with respect to matters other than the investment of funds or financial products.
Limits the definition of "municipal advisor" to a person (who is not a municipal entity or obligated person, or an employee of a municipal entity or obligated person) but who is engaged for compensation by a municipal entity to advise on either municipal financial products or the issuance of municipal securities.
Excludes from the definition of municipal advisors solely as a result of their performing the following activities:
(1) a financial institution engaging in specified excluded activities pursuant to an exemption from registration, when acting as a dealer or principal with respect to deposits, foreign exchange, or identified banking products, providing other traditional banking or trust services otherwise subject to a fiduciary duty under state or federal law, providing administrative or operational services or support, or providing advice that is related to or in connection with any such activities and not for separate compensation;
(2) a person providing state-regulated insurance products, services, or advice and not for separate compensation;
(3) an accountant providing customary and usual accounting services or advising in connection with such activities and not for separate compensation; and
(4) an attorney offering traditional legal advice or services.
Redefines "solicitation of a municipal entity" to: (1) eliminate solicitation for the purpose of obtaining or retaining an engagement by an investment adviser providing investment advisory services on behalf of a municipal entity, but (2) state that communications on behalf of a collective investment vehicle (investment fund) shall not be deemed to be on behalf of any investment adviser that advises or manages such collective investment vehicle.
Defines "municipal derivative" as a swap or security-based swap in which a municipal entity is a counterparty.
Defines the term to provide advice "on behalf of a municipal entity or obligated person" as providing advice to a person known to be engaged by a municipal entity to provide services to the municipal entity in connection with the issuance of municipal securities.
House Republican Conference Summary
The summary below was written by the House Republican Conference, which is the caucus of Republicans in the House of Representatives.
This summary can be found at http://www.gop.gov/bill/112/2/hr2827.
Municipal advisors (MAs) are consultants that provide advice to state and local governments with respect to bond issuance, investment of bond proceeds, use of financial derivatives and other financial matters. Section 975 of the Dodd Frank Act creates a new class of registrants under federal securities law, “municipal advisors.” Before Dodd-Frank, many municipal advisors were not subject to any regulation and this regulatory gap created a significant and unfair competitive balance in favor of the unregulated municipal advisors in relation to their regulated competitors. More importantly, this regulatory gap allowed a few dishonest municipal advisors to deceive and severely damage municipalities, all while conflicts of interest and other important information remained undisclosed to municipal officials.
H.R. 2827 was introduced to clarify the definition of a municipal advisor following an SEC proposed rulemaking that went far beyond what Congress intended. In response to its proposal, the SEC has reportedly received over 1,000 comment letters overwhelmingly critical of the rule.
A statement from the bill’s sponsor following committee passage of the bill read, in part: “My colleague and co-sponsor, Representative Gwen Moore (D-WI), and I worked with concerned parties to ensure that we fully considered all viewpoints and we came up with the best possible legislation that could also pass with broad bipartisan support.” Continuing, “This legislation protects state and local governments by preserving the federal fiduciary duty for municipal advisors, while maintaining a bright line definition that removes confusion in the market.”
H.R. 2827 bill would specify the scope and limits of Section 975 of the Dodd-Frank Act (P.L. 111-203), which requires municipal advisors to register with the Securities and Exchange Commission (SEC).
The bill as amended would clarify that the Municipal Securities Rulemaking Board’s (MSRB) regulatory authority over MAs extends only to an entity’s MA activities. The MSRB and other regulators would continue to have authority over those entities’ other activities to the same extent as under current law.
The bill would also specify that MAs have a fiduciary duty to their municipal entity clients and would specify when such duties begin and terminate in relation to MA activities.
Additionally, the bill would clarify the definition of MA to create a “bright-line” test for who falls under the definition based on explicit engagement and compensation.
The bill would also clarify the definition of “investment strategies” so that regulation as a MA extends to activities related to the investment of bond proceeds, as intended by Congress in Dodd-Frank, and the bill would specify that certain routine brokerage activities do not constitute “investment strategies.”
The bill would also specify that MAs could engage in principal transactions with their clients, subject to MSRB regulation. (This is consistent with the fiduciary duty that applies to registered investment advisors.)
The bill would also clarify the definition of “solicitation” so that MA treatment would apply fully to solicitations directly on behalf of investment advisors and not with respect to the investment funds they manage.
The bill would provide a definition of “municipal derivative” and “on behalf of,” both were undefined in Dodd-Frank.
Lastly, the bill would fix a technical error in the existing statute that will allow individuals associated with municipal advisor firms to be under the authority of the Securities Exchange Commission (SEC) and subject to its rules without having to register individually.
There was no Congressional Budget Office (CBO) cost estimate available for this legislation.
House Democratic Caucus Summary
The House Democratic Caucus does not provide summaries of bills.
So, yes, we display the House Republican Conference’s summaries when available even if we do not have a Democratic summary available. That’s because we feel it is better to give you as much information as possible, even if we cannot provide every viewpoint.
We’ll be looking for a source of summaries from the other side in the meanwhile.