"Broken" Premises

 Perhaps because of the recent full moon, the nation’s 401(k) “haters” were out in force.

Yes, last week we were “treated” to a Bloomberg op-ed with ideas on how to “fix” America’s broken retirement savings system, a back-handed compliment (of sorts) on SECURE 2.0 in Forbes from Teresa Ghilarducci, and the trifecta was completed with an academics op-ed in the Washington Post alleging that the current retirement system is “built for the rich.” 

Most of the criticism was focused on the same old myopic view on taxes and tax preferences—all flavored through the prism of a highly biased preference for the involvement of the federal government in such matters, rather than the private sector.

Key Points

So, let me take a couple of minutes to make a few points that always seem to be glossed over:

1. Tax deferral is not tax avoidance. Those contributions and earnings will be taxed (though generally outside the 10-year budget scoring window Congress uses).
2. The ability to save for retirement on a pre-tax basis is a powerful incentive—even, and perhaps especially, for those that academics argue have no rational reason to do so (because, on a net basis, they have no federal income tax liability). 
3. Tax preferences encourage not only plan participation (though it does that), but also the creation/existence of retirement plans—in which lower income workers are 12-15 times more likely to save than on their own. 
4. Non-discrimination tests and legal contribution limits work (as designed) to keep an effective balance between the benefits of higher-paid and other workers. In fact, actual data proves that while higher-income individuals have higher account balances, those balances are in rough proportion to their incomes. They are not “upside down.” 

Now, with those elements in mind (we’ll return to them throughout), what did the “haters” have to say?

The ‘Fixes’

Well, the Bloomberg editors’ “fix” to the system they claim is “broken” involves: (1) making access universal (but wait, what about Social Security?)—with a 3% auto-default rate with an opt out (they cite the UK’s NEST opt-out rate of 8%, though the opt-out rate for comparable state-run IRA programs in the U.S. is three to five times larger); (2) making it “simple” (the federal government’s Thrift Savings Plan, or TSP was cited), ostensibly with an abbreviated fund menu—or perhaps just because it’s a government solution; (3) making it “portable” (actually, they want it centralized, presumably with the federal government, so that it never has/get to be moved/rolled over), and (4) they want it to be “progressive,” which basically means shifting the current deferral of taxes to a straight-up government match to “the lowest earners.”[i]

There’s really nothing new here—the solution seems to be, more or less, a “nationalization” of retirement savings—with a program focused on helping those at the lower end of the income scale, but completely ignoring the vast sea of middle-income savers—for whom Social Security alone likely won’t come close to replicating their retirement income needs. 

The Washington Post op-ed was crafted by Daniel Hemel, a professor at the University of Chicago Law School and a visiting professor at New York University School of Law. He seems quite angered at the bipartisan support for SECURE 2.0 (actually the Securing a Strong Retirement Act of 2022) as some kind of sell-out by Congress to the financial services industry. He has an issue with “mega-IRAs,” but he also takes aim at Roth contributions, the extension of the required minimum distribution timeline, the non-tax refundability of the Saver’s Credit, as well as the scaled increase in the catch-up limits—all of which are characterized as either a giveaway to the rich, a budgetary “gimmick”—or both. He offers no solutions to any of this—though he does suggest that a focus on a strengthened Social Security would be a better use of their time (I, for one, would support that). Nor is there an acknowledgement that somewhere along the way this system “built for the rich” has somehow managed to wind up with roughly two-thirds of its participants in tax brackets that by most measures would fall significantly lower than that label would encompass. Groups for which this “broken” system is a lifeline beyond the baseline of Social Security and the pension benefits they never had. 

And then, just ahead of that article, Teresa Ghilarducci, a familiar critic of 401(k)s, pens an article ostensibly focused on the provisions of SECURE 2.0 (even taking the time to try and explain why it garnered such strong bipartisan support) on her way to pointing out why her proposal (now labeled the Ghilarducci/Hassett/EIG retirement proposal) is superior. Now, most of us would think that legislation—any legislation—that passed the U.S. House of Representatives by a margin of 414-5 would have to be on something as innocuous as naming a post pffice—that it would advance so many aspects of retirement security instead is a testament to the importance of the issue(s), and the potential to make strides in addressing them. 

Well, Ms. Ghilarducci seems to think that while SECURE 2.0 is perhaps better than a poke in the eye with a sharp stick (my words, not hers), but she claims the fixes it provides are too little (and probably too late), compared with her solution (if bipartisanship in the U.S. Congress is quickly dispensed with, she takes great pride in her alignment with conservative economist Dr. Hassett) that would build a TSP-like program for—well, everybody—or at least those who don’t already have a retirement savings plan at work. This particular article doesn’t go into the details of her solution, but we’ve seen (and written) about it before. Mind you, she’s not really worried about what you and I might consider middle-income workers—her focus is on the lower end (less than $52,000 median household earnings). It calls for a government (rather than an employer) match—but one that is only 3%. Now, that’s a number that has appeared in previous proposals she has put forth—and Jack VanDerhei, while at the Employee Benefit Research Institute, projected that it comes in well under where the status quo brings that same group in the current system.[ii]

‘Broken’ Premises

Now, those of us who actually work with real people know that this so-called “broken” system works amazingly well—for those who have access to it—including, most especially, those at the lower end of the income scale. The academics routinely target the well-off in their criticisms, but ignore the needs of middle-income households for whom Social Security will almost certainly not be… enough. And completely discount/ignore the role that the current tax preferences play in fostering the formation and maintenance of these retirement plans. 

Indeed, underneath all of the criticisms, the real issue seems to be that—as we’ve noted repeatedly—not enough working Americans have access to that system. What these critics don’t seem to appreciate is that, rather than closing that gap by encouraging more plan formation and participation, these random op-eds—often based on myopic views and faulty premises—only serve to undermine that goal. But then, perhaps there’s a reason… 

There are plenty of success stories out there—I’ll bet every single one of our 35,000+ readers know one, ten, a dozen, perhaps hundreds… it’s past time we started telling them.

- Nevin E. Adams, JD

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[i] Weirdly, as a throw-in they suggest that folks should be able to “tap their accounts for the occasional emergency expense”—which they claim would “save billions more that would otherwise go toward interest on often-predatory payday loans.”

[ii] My thinking is that, like earlier proposals, her math works because she assumes that any balances not actually withdrawn by the individual (and perhaps their spouse) would be absorbed into the “pool” and used to fund other payouts.

Unforget Able?

A recent headline in The Wall Street Journal started off: “Forget the 401(k).” And then, unintentionally, proceeded to explain why that would be… nuts.

Not that the author (Jason Zweig) didn’t throw in some digs at the subject, making a glancing reference to what he termed “the rigid and often paltry 401(k)s that workers have today” before going on to berate America’s retirement plan, dismissively claiming that “there’s little question that the 401(k) as we know it just isn’t getting the job done.”

That, of course, depends on what one considers “the job” – though, to his credit - and I generally appreciate Jason's perspectives - he didn’t fall into the common journalistic device of pining for the “good old days of the defined benefit plan.” Quite the contrary, he bluntly proclaims (in language that one rarely sees attributed to DB plans) that even in their heyday, “defined-benefit plans were, in fact, sporadic, arbitrary and unfair.” (This is a pervasive myth – see “‘Myth’ Understandings.”)

That said, the issue might be that he’s not very well acquainted with “the 401(k) as we know it.” Consider that his recommendations for a “new retirement plan” aren’t exactly “new,” nor are they the kind of thing that would seem to “reinvent retirement-savings plans from scratch.” Rather, the article calls for:

1. making “it easier to convert savings into regular income” (by providing incentives to workers to take distributions as annuity income, since, left to their own devices, individuals don’t); 
2. implementing solutions so that “retirement income should last well past 65 (a.k.a. deferred longevity annuity); and 
3. making it harder for folks to tap into their retirement savings prior to retirement (by directing some initial contribution funding into rainy day accounts). 

Indeed, perhaps the most radical notion – and one that might well push aside the 401(k) with a government-run version. Put forth by former Assistant Secretary of Labor Phyllis Borzi, this is a program that would be voluntary for employer contributions, but mandatory for employees – “regardless of whether you were self-employed, a full-time employee, an independent contractor or a leased employee” where a “professionally managed not-for-profit company with an independent board of directors would collect and invest retirement contributions from you and your employers.” An idea that sounds awfully (and I do mean “awfully”) similar to an idea proposed in the House late last year. 

But the idea that the author devoted the most space to was, ironically enough, the notion of taking the “forgettable” 401(k) – and making it universally available! This, ironically enough, from Ted Benna who, of late, has mostly been touting a new book and dissing the program he’s often credited with “discovering.” 

Ultimately, headline notwithstanding, it’s hard to imagine any of these “new” ideas as a reality without the underpinning of the 401(k). In fact, apparently the only thing holding the “forgettable” 401(k) from doing “the job”… is that everyone doesn’t have one.

But I’d say that makes the 401(k) pretty UN forgettable!

- Nevin E. Adams, JD

Lamenters of the 401(k) Revolution

The 2017 media-bashing of the 401(k) is off to an early start.

The most recent is a Wall Street Journal article (subscription required) whose headline notes that “The Champions¹ of the 401(k) Lament the Revolution They Started” (the third-most read article on the WSJ site as I write this).

It’s fair to say, I think, that their regrets aren’t so much about the 401(k) itself, but their sense that the existence of the 401(k) – which transformed the notion of retirement savings in so-called savings and thrift plans by allowing regular workers to defer paying taxes on money they set aside for retirement – led to the demise of the traditional defined benefit plan.

Well, maybe.

Trust me, I “get” the affection for the promise of a DB plan. Who wouldn’t like a plan that is funded (and paid for) by your employer, invested by your employer, and at retirement, produces regular, predictable distributions without you having to do anything except making sure they know where to send the check(s)?

That, of course, assumes that you had one. Even in their heyday, DB plans not only weren’t available to everyone, they weren’t even available to most workers in the private sector. The WSJ article acknowledges that just 38% of all private-sector workers had a traditional pension in 1979 (13% do today). Where were the headlines in 1979 about fewer than 4 in 10 workers being covered by a pension plan?

And that was just being “covered.” While coverage like that in the WSJ article tends to equate coverage with receiving benefits, that’s just not the way it was. To get that full benefit from that DB plan back in their heyday, you’d likely have had to work there at least 10 years, if not 15. And while we seem to think that 40 years ago Americans worked for a single employer their whole career, that wasn’t the case in the private sector, even in the DB’s heyday (and certainly today) didn’t.²

The data show that for the very most part we have long been a nation of relatively short-tenured workers. How short? Well, the median job tenure in the United States — how long workers stay at one job — has hovered around five years for the past three decades. Indeed, according to the nonpartisan Employee Benefit Research Institute (EBRI), in recent years it has ticked up, to about 5.5 years, but that’s because women are staying in their jobs longer; job tenure for men has actually been dropping.

What that means is that even workers who were “covered” by a pension plan in the private sector weren’t working with that employer long enough to get much – or any – of that promised pension benefit.

That doesn’t mean that those who were, and those who continue to be, covered by DB plans shouldn’t be grateful. But it’s time to stop lamenting the demise of DB plans – and it’s well past time to stop blaming the 401(k) as the culprit. Let’s be honest: It was changes in accounting rules, fueled by the occasional market turmoil, and exacerbated by artificially constrained interest rates over a prolonged period, done no good by the stricter (though well-intentioned) funding requirements in the ironically named Pension Protection Act of 2006. Not to mention, though some may dispute this, a workforce that, writ large, never seemed to fully understand or appreciate the value of these programs (perhaps because so many of them left before vesting).

As for those who want to blame the 401(k) for the nation’s retirement readiness – well, as has been said before, that’s a bit like blaming the well for the drought.

There is little question that the reality of the 401(k) struggles to live up to the myth of the defined benefit plan. No doubt that the voluntary design (even with auto-encouragements), sporadic availability among smaller employers, and the inherent complexity of individual savings and investment decisions provide challenges.

Regardless, and despite a plethora of media coverage and academic hand-wringing that suggests they are wasting their time, the American public has, through thick and thin, largely hung in there – when they are given the opportunity to do so.

The good news is that far many more American workers have that opportunity today than ever before. But not everyone.

And that really is lamentable.

- Nevin E. Adams, JD

Footnotes

1. Who are these champions? The real surprise is the article’s framing of the New School’s Teresa Ghilarducci as a former champion of the 401(k) concept (she claims to have once told unions that people only needed to save 3%, assuming 7% returns. Her position may have changed, but her math doesn’t appear to have – see “Rescuing Retirement from the ‘Rescuers’.”
2. A 2013 analysis by EBRI reveals that a defined benefit is not always “better,” at least not defined as providing financial resources in retirement. In fact, if historical rates of return are assumed, as well as annuity purchase prices reflecting average bond rates over the last 27 years, the median comparisons show a strong outcome advantage for voluntary enrollment 401(k) plans over both stylized, final average DB plan and cash balance plan designs.

A Fiduciary ‘Idiot Light’

Among the assorted “idiot lights” that adorn my current car dashboard is one that alerts me to low tire pressure.

It’s come in handy on precisely two occasions – one when a nail had punctured my tire (though I had already discerned that I had a problem from the sound of the flat tire nanoseconds before the light came on); the other when I had neglected to keep an eye on the tire pressure (which coincided with a day that I had let my daughter take my car to work). Other than that, it’s never really been on or an issue – or a help – until recently, when it came on, and stayed on, about 100 miles from home.

Now my owner’s manual suggested that this behavior might be a sign of a bad sensor, and sure enough, (after 100 miles of driving angst) that was subsequently confirmed by my mechanic – who also informed us that it would cost a couple of hundred dollars to replace it. Perhaps needless to say, that light continues to illuminate my dashboard.

Since the initial flurry of so-called “excess fee” litigation a decade ago, many have perhaps become numbed to the filings. Nearly all have involved multi-million, and multi-billion dollar plans – name brand companies. One might well expect – and many pundits have opined – that this litigation, funded, if not fueled, by a contingency fee structure, was really a concern for those larger plans and their larger asset pools.

Fiduciary Failings?

Or would have, until the recent filing in the case Damberg v. LaMettry’s Collision, Inc. (D. Minn., No. 0:16-cv-01335), which involved participants who were part of a 114-participant plan that had (in 2014) less than $10 million in plan assets.

These small plan participants alleged that the plan fiduciaries breached their fiduciary duties by:

• selecting an unduly expensive structure for its 401(k) plan – one that bundled recordkeeping and investment management services;
• failing to conduct an RFP for the structure to minimize expenses;
• failing to evaluate whether an unbundled or alternative fee structure was a better option;
• failing to conduct due diligence regarding whether the assessed fees (retail versus institutional shares) were appropriate; and
• failing to actively monitor the selected structure’s fees and expenses.

They also challenged the application of asset-based fees for recordkeeping (rather than a flat per-participant fee), and went on to suggest that for retirement plans with more than 100 participants, a reasonable annual per capita fee paid by retirement plan participants should not exceed $18.

Nothing New?

These types of charges are nothing new, of course. All (with the possible exception of the concerns expressed about the bundled pricing structure) have been invoked in just about every one of the previous excessive fee lawsuits.

What is different, of course, is that these charges are being leveled at a plan that is considerably smaller than those that have thus far been the targets of this type of litigation.

On many occasions during the months since that sensor light on my car dashboard started blinking, I have worried that I might actually have a problem, one “masked” by my choosing to ignore the glaring reminder on my dashboard. I’ve worried that, by ignoring the warning signs that “idiot light” is meant to detect, I will one day wind up feeling like a true idiot, and all because I was too cheap (or lazy) to replace that tire sensor.

Plan fiduciaries – and those who guide them – have had at least a decade to see the writing on the wall on these excessive fee lawsuits. Those who have been ignoring these risks because they think they are immune, or are too small to be a target, should have just seen an “idiot light” come on their fiduciary dashboard.

- Nevin E. Adams, JD

See also: 5 Things Plan Sponsors Should Know; 5 Things Plan Sponsors Don’t (Always) Do — But Should.

The "Plot" Thickens

In recent weeks, I have been distressed to see a pair of reports by what are sometimes affectionately referred to as 401(k) “haters” — but that’s not what I find most troubling.

One, by the Economic Policy Institute, is innocuously titled, “The State of American Retirement,” but it might be more honestly subtitled, “How 401(k)s have failed most American workers.” The other is a formalized (and slightly updated) version of Teresa Ghilarducci’s Guaranteed Retirement Account (GRA) proposal titled, “A Comprehensive Plan to Confront the Retirement Crisis.” Both reports tread familiar, and misguided, ground.

Misguided and misleading as these kinds of reports are, they’re not new or even original. I’d almost be inclined to simply ignore them. That is, until I see headlines like, “The Plan That Could Render Your 401(k) Obsolete,” or “These Depressing Charts Show the Different Ways 401(k)s Fall Short,” reported with a straight face by the personal finance press. The latter, which just appeared in The Washington Post, leads off with the assertion, “We already know that the 401(k) has not been a great solution for improving Americans’ retirement security.” Oh, do we?

Here’s some data that (somehow) is overlooked by these reports: According to the nonpartisan Employee Benefit Research Institute (EBRI), in 2013, 82% of 401(k) participants (for whom this information was available) made less than $100,000 per year, and 51% of 401(k) participants made less than $50,000. Even more importantly, moderate income workers participate when they have the option: More than 70% of workers earning between $30,000 and $50,000 save in their 401(k). Oh, and the notion that “less than half of American workers have access to a retirement plan”? Well, the fact is that 8 out of 10 full-time workers are eligible for some kind of workplace retirement plan, the most common of which is a 401(k)-style plan. The 50% statistic cited repeatedly by academics and the media includes seasonal and part-time workers — granted, they have a retirement to worry about, but their issues in the here and now are economic, not a fault of ERISA or the 401(k), which have long had specific coverage thresholds.

It is, as a colleague of mine said recently, blaming the well for the drought.

The failure laid at the feet of 401(k)s — if a failure it is — is that people who don’t work, or who don’t work for employers who offer a retirement plan at work, are in worse shape than those who do. Now, I’m not saying that the 401(k) design works for everyone, and it most assuredly won’t work for those who don’t have access to its benefits. That said, 401(k)s are working for far more people and in far more varied circumstances than the fear-mongering headlines give them credit for. It’s one thing, after all, to acquiesce to what has become a journalistic “creed” — that “if it bleeds, it leads” – and something else again to wield the knife.

It’s past time to call out these reports — and the reporting on them — for what they really are: part of a long-standing and deliberately intentioned “plot” to kill the 401(k) — first by undermining its value, discounting and demeaning the modest tax deferrals that encourage American savers to put aside their natural preferences for spending, then discrediting as “rich” those who do take advantage of the option and make thoughtful preparations for retirement, and then, as advisors well know, disparaging those who work with retirement savers to make good long-term decisions.

It’s been said that, “A lie unchallenged becomes the truth.” If those of us who know better don’t start speaking up — and speaking out — you can bet that the drumbeat of coverage about the failure of the 401(k) will one day become a self-fulfilling prophecy. For some, that day has already arrived.

- Nevin E. Adams, JD