Senate confirms Scalia as DOL secretary on party-line vote

Lead counsel of industry suit to kill original fiduciary rule may have to step back from rewrite

Sep 26, 2019 @ 5:10 pm

By Mark Schoeff Jr.

Eugene Scalia became the new Labor secretary Thursday.

The Republican-majority Senate confirmed Mr. Scalia to head the agency on a party-line vote, 53-44. He now takes over a department whose fiduciary rule to raise investment advice standards in retirement accounts he was instrumental in killing.

Mr. Scalia, formerly a partner at Gibson Dunn & Crutcher, was the lead counsel in a lawsuit against the DOL rule. Representing financial industry opponents of the regulation, Mr. Scalia argued that the regulation was too costly and that the DOL had overstepped its authority in promulgating it. A federal appeals court vacated the measure last year.

In his confirmation hearing last week before the Senate Health, Education, Labor and Pensions Committee, Mr. Scalia said he may have to recuse himself from the agency's rewrite of the regulation, which is due in December. Federal ethics rules could limit his involvement in work connected to his former clients.

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Regardless of who leads the agency's work on revising investment advice standards for retirement savings, the new DOL rule is likely to be contoured to the Securities and Exchange Commission's recently approved Regulation Best Interest, which is designed to raise the broker advice standard.

"We applaud the Senate for ushering through his swift confirmation and believe he can get to work on day one to ensure the DOL's rule is harmonized with the SEC's Reg BI," American Securities Association chief executive Christopher Iacovella said in a statement. "Politically-motivated calls to recuse himself from this important process should fall on deaf ears."

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Democrats opposed Mr. Scalia.

"If there's one consistent pattern in Mr. Scalia's long career, it's hostility to the very workers he would be charged with protecting, and the very laws he would be charged with enforcing if he were confirmed," Sen. Patty Murray, D-Wash. and ranking member of the Senate HELP Committee, said at his confirmation hearing. "Like when he threw billions of dollars of workers' retirement savings into jeopardy by suing to strike down the department's fiduciary rule. This commonsense rule protected workers' retirement savings by requiring financial advisers to put their clients' interests ahead of their own."

Mr. Scalia replaces Alexander Acosta, who stepped down as Labor secretary in July following fallout from a lenient plea deal Mr. Acosta cut with the late accused sexual predator Jeffrey Epstein when Mr. Acosta was a U.S. attorney in Florida.

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