Investor Bulletin: New Rule to Curb “Pay to Play” Practices

The Securities and Exchange Commission approved a new rule on June 30, 2010 to curb so-called “pay to play” practices in which investment advisers make campaign contributions to elected officials in order to influence the award of contracts to manage public pension plan assets and other government investment accounts.

Why did the SEC adopt the new rule?

The rule is intended to combat pay to play arrangements in which advisers are chosen based on their campaign contributions to political officials rather than on merit.  The potential for fraud to invade the various, intertwined relationships created by pay to play arrangements is without question, and the new rule is meant to reduce the occurrence of fraudulent conduct resulting from these practices and to protect public pension plans, beneficiaries, and other investors from the resulting harms.

The corrupting influence of pay to play practices could, for example, lead a political official to choose an investment adviser with higher fees or inferior investment performance because the adviser contributed funds to the official’s election campaign.  Choosing an adviser with higher fees or weaker performance could reduce the amount of money available to plan participants.  Moreover, advisers’ participation in pay to play activities may diminish investor confidence, as pay to play practices are inconsistent with the high standards of ethical conduct required of investment advisers.

Pay to play practices often are not explicit, but appear to be widespread.  In recent years, the SEC has brought enforcement actions against investment advisers involved in pay to play activities.  In addition, other authorities in various states have brought civil and criminal cases alleging pay to play activities.

Who might be affected by the new rule?

The new rule, adopted under the Investment Advisers Act of 1940, applies to SEC-registered investment advisers and certain advisers exempt from registration with the SEC who provide investment advisory services, or are seeking to provide investment advisory services, to government entities.  The rule will subject these advisers to certain restrictions (described below) designed to curb pay to play activities. 

The rule will help protect the interests of government entities that hire investment advisers and others, including participants in public pension plans and state-sponsored college savings plans (known as 529 plans). It will also help level the playing field so that the advisers selected to manage retirement funds and other investments for the public are more likely to be selected based on the quality of their advisory services.

What does the new rule do?

The new rule:

• Prohibits an investment adviser from providing advisory services for compensation to a government entity, either directly or through a pooled investment vehicle, for two years after the adviser or certain of its executives or employees makes a political contribution to an elected official or candidate for political office who is in a position to influence that government entity’s selection of the adviser;
   
• Prohibits an investment adviser and certain of its executives and employees from paying or agreeing to pay a third party placement agent or “finder” to solicit business from a government entity on the adviser’s behalf unless the third party is a registered broker-dealer or SEC-registered investment adviser subject to pay to play restrictions; and
   
• Prohibits an investment adviser and certain of its executives and employees from soliciting or coordinating contributions (i.e., “bundling”) from others to a political official, candidate or political party in a state or locality where the adviser provides or is seeking to provide advisory services.

An SEC-registered investment adviser subject to the rule also will have to maintain certain records under a related amendment to the Investment Advisers Act recordkeeping rule that the Commission adopted along with the new rule.

Related Information:

Final Rule:  Political Contributions by Certain Investment Advisers

Press Release:  SEC Adopts New Measures to Curtail Pay to Play Practices by Investment Advisers

Text of Chairman Schapiro’s Speech from June 30, 2010 Open Meeting