[Congressional Record Volume 149, Number 159 (Wednesday, November 5, 2003)]
[Senate]
[Pages S14038-S14043]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA (for himself, Mr. Fitzgerald, and Mr. Lieberman):
  S. 1822. A bill to require disclosure of financial relationships 
between brokers and mutual fund companies and of certain brokerage 
commissions paid by mutual fund companies; to the Committee on Banking, 
Housing, and Urban Affairs.
  Mr. AKAKA. Mr. President, I rise today to introduce legislation 
intended to restore public trust in mutual funds, the Mutual Fund 
Transparency Act of 2003. I thank Senator Fitzgerald and Senator 
Lieberman for cosponsoring my bill. I greatly appreciate the efforts of 
Senator Fitzgerald to address this issue. Our Financial Management, 
Budget, and International Security Subcommittee held a very thorough 
hearing on mutual fund trading abuses on Monday. I applaud the efforts 
of Representative Richard Baker for his leadership and his efforts to 
improve mutual fund governance. I also commend the efforts of New York 
Attorney General Eliot Spitzer and the Secretary of Massachusetts 
William Galvin for their efforts to pursue individuals that have harmed 
mutual fund investors.
  Mr. President, 95 million people have placed a significant portion of 
their future financial security into mutual funds. Mutual funds provide 
middle-income Americans, blue and white collar workers and their 
families, with an investment vehicle that offers diversification and 
professional money management. Mutual funds are what average investors 
rely on for retirement, savings for children's college education, or 
other financial goals and dreams.
  My legislation will bring about structural reform of mutual fund 
governance and increase disclosures in order to provide useful and 
relevant information to mutual fund investors. I ask unanimous consent 
that a letter of support for my bill from the Consumer Federation of 
America, Fund Democracy, Consumer Action, U.S. Public Interest Research 
Group, and Consumers Union be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Consumer Federation of America, Fund Democracy, Inc., 
           Consumer Action, U.S. Public Interest Research Group, 
           Consumers Union,
                                                 October 31, 2003.
     Hon. Daniel K. Akaka,
     U.S. Senate, Washington, DC.
       Dear Senator Akaka: We are writing to express our 
     enthusiastic support for your draft legislation to increase 
     the transparency of mutual disclosures and enhance the 
     independence of fund oversight. Over the last two decades, 
     mutual funds have become firmly established as average 
     Americans' investment vehicle of choice, and investors have 
     for the most part benefitted greatly from the ability mutual 
     funds have offered even those of modest means to diversify 
     their portfolios and obtain professional management. However, 
     fund rules in some areas have not kept pace with industry 
     practices, and the recent scandals embroiling the mutual fund 
     industry have raised serious questions about the quality of 
     corporate governance in this industry.
       Given the importance of mutual funds in the financial 
     portfolios of average Americans and the heavy reliance of the 
     least sophisticated investors on these investment vehicles, 
     we applaud your efforts to address key weaknesses in the 
     regulatory structure for mutual funds. Your proposed reforms 
     to improve disclosures about fund costs and strengthen the 
     independence of mutual fund boards, if adopted, should help 
     the fund industry to regain the investor trust that has been 
     the key to its success over the years but has been so 
     severely undermined by recent revelations.
     1. We support requiring disclosure of broker compensation for 
         mutual fund transactions
       The legislation would require disclosure of the 
     compensation brokers receive for selling funds. While funds 
     are currently required to disclose the existence of such 
     payments in fund prospectuses, the actual amount of the 
     broker's compensation for a particular mutual 
     fund transaction does not currently have to be disclosed. 
     This from of compensation creates a conflict of interest 
     between the broker, who may be inclined to recommend the 
     fund that offers him or her the highest compensation, and 
     the investor, whose interest is in obtaining the highest 
     quality fund at the lowest cost. By requiring timely 
     disclosure to investors of the actual dollar amount of 
     these commissions, your bill should help to increase 
     investors' awareness of the existence and extent of this 
     conflict of interest and its potential to induce their 
     broker to place his or her interests ahead of theirs.
       Ample evidence that brokers do not always put investors' 
     interests first can be found in the allegations of improper 
     sale of fund B shares at some fund companies. In addition, a 
     recent Consumer Federation of America-Fund Democracy study of 
     excess costs paid by investors in S&P 500 Index funds found 
     that many of the funds with unjustifiably high expense ratios 
     were funds that brokers sold on commission. Since costs 
     subtract directly from fund performance, investors in these 
     funds end up paying a premium for sub-par performance. Had 
     these investors been made aware of the often substantial 
     payments their brokers received on the sale, they might have 
     been encouraged to look more closely at whether the fund or 
     share type being sold was really the best for them.
     2. We support requiring improved disclosure of portfolio 
         transaction costs
       The legislation would also require mutual funds to 
     disclosure in the prospectus the brokerage commissions they 
     pay on portfolio transactions and to include this cost in the 
     fund expense ratio. Portfolio transaction costs vary greatly 
     among funds and can be the single largest fund expense, 
     exceeding all other fund expenses combined. These costs are 
     not, however, currently included in fee information provided 
     in the prospectus. The only public disclosure of portfolio 
     transaction costs is a statement of the dollar amount of the 
     fund's commissions in the Statement of Additional 
     Information, a document never reviewed by the vast majority 
     of mutual fund investors.
       Fuller disclosure of portfolio transaction costs would help 
     investors to hold fund advisers accountable for their trading 
     practices. It also would provide a collateral benefit in 
     connection with funds' soft dollar practices. Commissions 
     paid by funds typically pay for both execution and research 
     services. Since soft dollars pay for research that fund 
     advisers would otherwise have to pay for themselves, this 
     creates a significant conflict of interest for fund advisers. 
     Requiring brokerage commission cost disclosure would subject 
     these fund expenditures, including expenditures on soft 
     dollar services, to market forces, and in the process provide 
     a practical solution to the problem of regulating soft dollar 
     practices.
     3. We support reforms to enhance the independence of mutual 
         fund boards.
       The legislation contains a number of provisions to 
     strengthen the independence of fund boards. It would require 
     that 75 percent of board members, including the board 
     chairman, be independent. It would substantially strengthen 
     the definition of independent director by excluding 
     individuals who had served as directors, officers, or 
     employees within the past 10 years of the fund's manager, 
     principal underwriter, or other significant service 
     provider. It would delegate selection of new independent 
     directors exclusively to existing independent directors. 
     And it would establish qualification standards for board 
     members that must be publicly disclosed.
       The recent investigation into market timing and late 
     trading at certain mutual funds has raised serious questions 
     about the quality of oversight provided by fund boards. Of 
     particular concern are the allegations that some Putnam fund 
     managers and the CEO of the Strong fund family were timing 
     their own funds--essentially picking the pockets of their own 
     shareholders to the tune of several hundred thousand dollars 
     in each instance. This is an unconscionable violation

[[Page S14039]]

     of these fund managers' fiduciary duty to their shareholders. 
     It is also strong evidence of the need to end the domination 
     of fund boards by the fund manager. Increasing the 
     representation of independent members on boards, making sure 
     that independent members are truly independent, and ensuring 
     that the boards are led by independent members should go a 
     long way toward advancing that goal.
     4. Other bill provisions would also benefit investors
       The recent mutual fund scandals are not just a corporate 
     governance failure--though they certainly are that. They are 
     also a regulatory failure. The fact is that the SEC was 
     apparently aware of problems related to market timing for 
     years and had drifted along without doing anything about it. 
     Given the lack of clear direction from the SEC, it is hardly 
     surprising that fund boards failed to closely supervise the 
     trading practices at funds they oversaw. Your bill offers an 
     innovative approach to enhancing the quality of fund board 
     oversight. It would direct the SEC to study the benefits of 
     creating a Mutual Fund Oversight Board, generally modeled 
     after the Public Company Accounting Oversight Board, with 
     authority to examine and bring enforcement actions against 
     mutual fund boards of directors. Under this approach, the SEC 
     would retain responsibility for direct oversight of 
     investment adviser, but that responsibility would be 
     supplemented by the new independent agency's supervision of 
     fund boards. We believe this approach is well worth studying.
       We also support the bill's provisions requiring disclosure 
     of portfolio managers' compensation and ownership of fund 
     shares (something that might have discouraged market timing 
     by fund managers), as well as its proposed GAO study of 
     mutual fund advertising practices and SEC study of financial 
     literacy. Such a study should look at innovative disclosure 
     methods designed to reach unsophisticated investors--those 
     who fail to take costs into account, for example--with 
     information they understand and act on.


                               conclusion

       Recent events have provided a rude awakening to those who 
     have long trusted mutual funds as the one place where the 
     needs of average investors are generally well protected. Your 
     bill offers a reasonable approach--one that recognizes the 
     continued benefits of mutual fund investing for millions of 
     Americans but also recognizes that reforms are needed to 
     restore investor confidence in the integrity of this 
     industry. Please let us know what we can do to assist in its 
     passage.
           Respectfully submitted,
     Barbara Roper,
       Director of Investor Protection, Consumer Federation of 
     America.
     Mercer Bullard,
       Executive Director, Fund Democracy.
     Kenneth McEldowney,
       Executive Director, Consumer Action.
     Edmund Mierzwinski,
       Consumer Program Director, U.S. Public Interest Research 
     Group.
     Sally Greenberg,
       Senior Counsel, Consumers Union.

  Mr. AKAKA. I also ask unanimous consent that a letter of support for 
the legislation from AARP be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                         AARP,

                                 Washington, DC, November 4, 2003.
     Hon. Daniel K. Akaka,
     U.S. Senate,
     Washington, DC.
       Dear Senator Akaka: AARP supports your effort to improve 
     investor awareness of mutual fund costs, and to improve the 
     independent oversight and governance functions of fund boards 
     of directors. The legislation you have introduced, ``the 
     Mutual Fund Transparency Act of 2003,'' would put into effect 
     an overdue upgrade in investor protection for the ordinary 
     saver-investor. These reforms are already warranted by the 
     continuing evolution in market practices and the growth in 
     market choices. They are now more urgently required.
       Mounting allegations of illegal--at best unethical--
     practices by mutual fund management companies, executives and 
     brokers highlight the need for prompt action. We are 
     concerned that lay investor confidence in the mutual fund 
     industry not be allowed to deteriorate further--specifically 
     in its ability to reliably provide fairly priced benefits of 
     investment diversification and expert management.
       With regard to initiatives designed to increase fund 
     transparency, we strongly support the bill's provisions to 
     require that: fees be disclosed in dollar amounts; fee 
     disclosures incorporate all fees, including portfolio 
     transaction costs; fee disclosures identify all distribution 
     expenses; and compensation paid to portfolio managers and 
     retail brokers be fully disclosed.
       While greater transparency is essential to fair competition 
     among funds for investors, we believe it does not provide a 
     sufficient check on the cost of fund governance. Mutual funds 
     allow investors to share the costs of professional money 
     managers--who under the 1940 Investment Company Act are 
     called ``advisers.'' However, most funds are not established 
     by investors but rather are incorporated by advisory firms, 
     who then contractually provide research, trading, money 
     management and customer support services, and also have some 
     representation on the fund's board. The advisory firms have 
     their own corporate charters and are accountable to their own 
     boards of directors, posing--as we are seeing--a range of 
     potential conflicts of interest in the costs of services 
     provided to the fund.
       We support the provisions in the proposal to strengthen the 
     role and independence of boards of directors, which should 
     reduce potential conflicts of interest. Specifically, we 
     support the requirement that: a super-majority (i.e., two-
     thirds to three-fourths) of fund board members be 
     independent; the board chairman be selected from among the 
     independent members; and the independent directors be 
     responsible for establishing and disclosing the qualification 
     standards of independence, and for nominating and selecting 
     all subsequent independent board members.
       We also see merit in the bill's requirements for three 
     separate studies of investor financial literacy, the value of 
     creating a mutual fund oversight board, and mutual fund 
     advertising.
       The importance of the mutual fund market as a critical 
     component of the economic security of all Americans--
     especially order persons--should not be underestimated. 
     Similar--although not identical--legislation (H.R. 2420) is 
     pending before the House financial Services Committee. We 
     look forward to working with you and with the other members 
     of the Senate to enact this measured and important piece of 
     investor protection legislation. Please feel free to contact 
     me, or have your staff call Roy Green of our Federal Affair 
     staff at (202) 434-3800, if you have any questions about our 
     views.
           Sincerely,
                                                    David Certner,
                                        Director, Federal Affairs.

  Mr. AKAKA. Mr. President, recent revelations of widespread market-
timing and late-trading abuses demonstrate the failures of mutual fund 
boards of directors to fulfill their fiduciary obligations to 
shareholders. The activities of Canary Capital Partners and Putnam 
Investments are two deeply troubling examples. However, it is likely 
that the trading abuses are much more routine. At our hearing, Mr. 
Stephen Cutler, Director, Division of Enforcement, Securities and 
Exchange Commission, SEC, testified that preliminary results of an SEC 
survey show that about ``50 percent of responding fund groups appear to 
have one or more arrangements with certain shareholders that allow 
these shareholders to engage in market timing.'' This statistic is just 
one example of mutual funds having different sets of rules for large 
and small investors. These differing rules allow the larger investors 
to profit at the expense of average, ordinary investors who are working 
toward their long-term financial goals.
  The abuses that have been brought to our attention make it clear that 
the boards of mutual fund companies are not providing sufficient 
oversight. To be more effective, the boards must be strengthened and 
more independent. Investment company boards should be required to have 
an independent chairman, and independent directors must have a dominant 
presence on the board. My bill strengthens the definition of who is 
considered to be an independent director. It also requires that mutual 
fund company boards have 75 percent of their members considered to be 
independent. To be considered independent, shareholders would have to 
approve them. My legislation also prohibits the board from making 
decisions that require a vote of a non-independent director. In 
addition, a committee of independent members would be responsible for 
nominating members and adopting qualification standards for board 
membership. These steps are necessary to add much needed protections to 
strengthen the ability of mutual fund boards to detect and prevent 
abuses of the trust of shareholders.
  In addition, this bill requires the SEC to develop rules to disclose 
the compensation of individuals employed by the investment advisor of 
the company to manage the portfolio of the company and their ownership 
interest in the company. Consumers deserve to know relevant information 
about the portfolio manager's incentives and whether they are properly 
aligned with those of their shareholders. Again, I am referring to 
ordinary American families patiently working toward their long-term 
financial goals.

[[Page S14040]]

  The strengthening of boards to protect shareholders is only one 
important aspect of my bill. My bill will also increase the 
transparency of often complex financial relationships between brokers 
and mutual funds in ways that are meaningful and easy to understand for 
investors.

  Shelf-space payments and revenue-sharing agreements between mutual 
fund companies and brokers present conflicts of interest that must be 
addressed. Brokers also compile preferred lists which highlight certain 
funds, which typically generate more investment than those left off the 
list. It is not clear to investors that the mutual fund company also 
may pay a percentage of sales and/or an annual fee on the fund assets 
held by the broker to obtain a place on the preferred list or to have 
their shares sold by the broker.
  Shelf-space and revenue sharing agreements present risk to investors. 
Brokers have conflicts of interest, some of which are unavoidable, but 
these need to be disclosed to investors. Without such disclosure, 
investors cannot make informed financial decisions. Investors may 
believe that brokers are recommending funds based on the expectation 
for solid returns or low volatility, but the broker's recommendation 
may be influenced by hidden payments.
  The SEC has exempted mutual funds from Rule 10b-10, which requires 
that confirmation notices of securities transactions be sent to 
customers to indicate how the broker was compensated in the trade. 
Mutual funds should be subject to this confirmation notice requirement. 
My legislation will require brokers to disclose in writing, to those 
who purchase mutual fund company shares, the amount of compensation the 
broker will receive due to the transaction, instead of simply providing 
a prospectus. The prospectus fails to include the detailed relevant 
information that investors need to make informed decisions. Mutual fund 
investors deserve to know how their broker is being paid.
  My bill also will inject a measure of reality into the expenses of 
mutual funds. In order to increase the transparency of the actual costs 
of the fund, brokerage commissions must be counted as an expense in 
filings with the SEC and included in the calculation of the expense 
ratio, so that investors will have a more realistic view of the 
expenses of their fund. Consumers often compare the expense ratios of 
funds when making investment decisions. However, the expense ratios 
fail to take into account the costs of commissions in the purchase and 
sale of securities. Therefore, investors are not provided with an 
accurate idea of the expenses involved. Currently, brokerage 
commissions have to be disclosed to the SEC, but not to individual 
investors. Brokerage commissions are only disclosed to the investor 
upon request. My bill puts teeth into brokerage commission disclosure 
provisions and ensures that commissions will be included in a document 
that investors actually have access to and utilize.
  This bill also creates a powerful incentive to reduce the use of soft 
dollars. Soft dollars refer to the bundling of services or products 
into commissions. Mutual fund companies often pay higher commissions in 
order to obtain other products and services, typically research on 
stocks. Soft dollars can be used to lower their expenses by having 
services and products paid for by soft dollars. Purchases using soft 
dollars do not count as expenses and are not calculated into the 
expense ratio. The SEC released a study in September 1998 concluding 
that soft dollars were used to pay for research, salaries, office rent, 
telephone services, legal expenses, and entertainment, among other 
expenses.
  At the hearing, Secretary Galvin called for a prohibition of soft 
dollars. This is a recommendation that needs to be examined. However, 
my bill provides an immediate alternative, which is to provide an 
incentive for funds to limit their use of soft dollars by calculating 
them as expenses. If commissions are disclosed in this manner, the use 
of soft dollars will be reflected in the higher commission fees and 
overall expenses. This will make it easier for investors to see the 
true cost of the fund and compare the expense ratios of funds.

  Some may argue that this gives an incomplete picture and fails to 
account for spreads, market impact, and opportunity costs. However, the 
SEC has the authority to address the issue further if it can determine 
an effective way to quantify these additional factors. This bill does 
not impose an additional reporting requirement that would be burdensome 
to brokers. It merely uses what is already reported and presents this 
information in a manner meaningful to investors.
  My legislation also directs the SEC to conduct a study to assess 
financial literacy among mutual fund investors. The SEC will identify 
the most useful and relevant information that investors need prior to 
purchasing shares, methods to increase the transparency of expenses and 
potential conflicts of interest in mutual fund transactions, and a 
strategy to increase the financial literacy of investors that results 
in positive change in investor behavior. None of our disclosure 
provisions will truly work unless investors are effectively given the 
tools they need to make smart investment decisions.
  Finally, my bill requires the General Accounting Office, GAO, to 
study the current marketing practices for the sale of shares of mutual 
funds. GAO will provide recommendations to improve investor protections 
in mutual fund advertising to ensure that investors are able make 
informed financial decisions when purchasing shares.
  Public confidence in mutual funds will not recover if funds continue 
to employ different sets of rules for large and small investors, engage 
in ethical misconduct, and enrich themselves at the expense of 
shareholders. The transgressions brought to light underscore the 
absence of effective oversight by the boards of mutual funds companies. 
This legislation will strengthen board independence and enhance the 
transparency of financial relationships. The American investing public 
deserves nothing less.
  Mr. President, I look forward to working with my colleagues in 
enacting meaningful reform of the troubled mutual fund industry. We 
must act to restore trust in this critical investment vehicle that 
people rely on for their financial future and goals. I ask unanimous 
consent that the text of the Mutual Fund Transparency Act of 2003 be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1822

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Mutual Fund Transparency Act 
     of 2003''.

     SEC. 2. DISCLOSURE OF FINANCIAL RELATIONSHIPS BETWEEN BROKERS 
                   AND MUTUAL FUND COMPANIES.

       (a) In General.--Section 15(b) of the Securities Exchange 
     Act of 1934 (15 U.S.C. 78o(b)) is amended by adding at the 
     end the following:
       ``(11) Confirmation of transactions for mutual funds.--
       ``(A) In general.--Each broker shall disclose in writing to 
     customers that purchase the shares of an open-end company 
     registered under section 8 of the Investment Company Act of 
     1940 (15 U.S.C. 80a-8)--
       ``(i) the amount of any compensation received or to be 
     received by the broker in connection with such transaction 
     from any sources; and
       ``(ii) such other information as the Commission determines 
     appropriate.
       ``(B) Timing of disclosure.--The disclosure required under 
     subparagraph (A) shall be made to a customer not later than 
     as of the date of the completion of the transaction.
       ``(C) Limitation.--The disclosures required under 
     subparagraph (A) may not be made exclusively in--
       ``(i) a registration statement or prospectus of an open-end 
     company; or
       ``(ii) any other filing of an open-end company with the 
     Commission.
       ``(D) Commission authority.--
       ``(i) In general.--The Commission shall promulgate such 
     rules as are necessary to carry out this paragraph not later 
     than 1 year after the date of enactment of the Mutual Fund 
     Transparency Act of 2003.
       ``(ii) Form of disclosure.--Disclosures under this 
     paragraph shall be in such form as the Commission, by rule, 
     shall require.
       ``(E) Definition.--In this paragraph, the term `open-end 
     company' has the same meaning as in section 5 of the 
     Investment Company Act of 1940 (15 U.S.C. 80a-5).''.
       (b) Disclosure of Brokerage Commissions.--Section 30 of the 
     Investment Company Act of 1940 (15 U.S.C. 80a-29) is amended 
     by adding at the end the following:

[[Page S14041]]

       ``(k) Disclosure of Brokerage Commissions.--The Commission, 
     by rule, shall require that brokerage commissions as an 
     aggregate dollar amount and percentage of assets paid by an 
     open-end company be included in any disclosure of the amount 
     of fees and expenses that may be payable by the holder of the 
     securities of such company for purposes of--
       ``(1) the registration statement of that open-end company; 
     and
       ``(2) any other filing of that open-end company with the 
     Commission, including the calculation of expense ratios.''.

     SEC. 3. MUTUAL FUND GOVERNANCE.

       (a) Independent Fund Boards.--Section 10(a) of the 
     Investment Company Act of 1940 (15 U.S.C. 80a-10(a)) is 
     amended--
       (1) by striking ``shall have'' and inserting the following: 
     ``shall--
       ``(1) have'';
       (2) by striking ``60 per centum'' and inserting ``25 
     percent'';
       (3) by striking the period at the end and inserting a 
     semicolon; and
       (4) by adding at the end the following:
       ``(2) have as chairman of its board of directors an 
     interested person of such registered company; or
       ``(3) have as a member of its board of directors any person 
     that is an interested person of such registered investment 
     company--
       ``(A) who has served without being approved or elected by 
     the shareholders of such registered investment company at 
     least once every 5 years; and
       ``(B) unless such director has been found, on an annual 
     basis, by a majority of the directors who are not interested 
     persons, after reasonable inquiry by such directors, not to 
     have any material business or familial relationship with the 
     registered investment company, a significant service provider 
     to the company, or any entity controlling, controlled by, or 
     under common control with such service provider, that is 
     likely to impair the independence of the director.''.
       (b) Action by Independent Directors.--Section 10 of the 
     Investment Company Act of 1940 (15 U.S.C. 80a-10) is amended 
     by adding at the end the following:
       ``(i) Action by Board of Directors.--No action taken by the 
     board of directors of a registered investment company may 
     require the vote of a director who is an interested person of 
     such registered investment company.
       ``(j) Independent Committee.--
       ``(1) In general.--The members of the board of directors of 
     a registered investment company who are not interested 
     persons of such registered investment company shall establish 
     a committee comprised solely of such members, which committee 
     shall be responsible for--
       ``(A) selecting persons to be nominated for election to the 
     board of directors; and
       ``(B) adopting qualification standards for the nomination 
     of directors.
       ``(2) Disclosure.--The standards developed under paragraph 
     (1)(B) shall be disclosed in the registration statement of 
     the registered investment company.''.
       (c) Definition of Interested Person.--Section 2(a)(19) of 
     the Investment Company Act of 1940 (15 U.S.C. 80a-2) is 
     amended--
       (1) in subparagraph (A)--
       (A) in clause (iv), by striking ``two'' and inserting 
     ``5''; and
       (B) by striking clause (vii) and inserting the following:
       ``(vii) any natural person who has served as an officer or 
     director, or as an employee within the preceding 10 fiscal 
     years, of an investment adviser or principal underwriter to 
     such registered investment company, or of any entity 
     controlling, controlled by, or under common control with such 
     investment adviser or principal underwriter;
       ``(viii) any natural person who has served as an officer or 
     director, or as an employee within the preceding 10 fiscal 
     years, of any entity that has within the preceding 5 fiscal 
     years acted as a significant service provider to such 
     registered investment company, or of any entity controlling, 
     controlled by, or under the common control with such service 
     provider;
       ``(ix) any natural person who is a member of a class of 
     persons that the Commission, by rule or regulation, 
     determines is unlikely to exercise an appropriate degree of 
     independence as a result of--

       ``(I) a material business relationship with the investment 
     company or an affiliated person of such investment company;
       ``(II) a close familial relationship with any natural 
     person who is an affiliated person of such investment 
     company; or
       ``(III) any other reason determined by the Commission.'';

       (2) in subparagraph (B)--
       (A) in clause (iv), by striking ``two'' and inserting 
     ``5''; and
       (B) by striking clause (vii) and inserting the following:
       ``(vii) any natural person who is a member of a class of 
     persons that the Commission, by rule or regulation, 
     determines is unlikely to exercise an appropriate degree of 
     independence as a result of--

       ``(I) a material business relationship with such investment 
     adviser or principal underwriter or affiliated person of such 
     investment adviser or principal underwriter;
       ``(II) a close familial relationship with any natural 
     person who is an affiliated person of such investment adviser 
     or principal underwriter; or
       ``(III) any other reason as determined by the 
     Commission.''.

       (d) Definition of Significant Service Provider.--Section 
     2(a) of the Investment Company Act of 1940 is amended by 
     adding at the end the following:
       ``(53) Significant service provider.--
       ``(A) In general.--Not later than 270 days after the date 
     of enactment of the Mutual Fund Transparency Act of 2003, the 
     Securities and Exchange Commission shall issue final rules 
     defining the term `significant service provider'.
       ``(B) Requirements.--The definition developed under 
     paragraph (1) shall include, at a minimum, the investment 
     adviser and principal underwriter of a registered investment 
     company for purposes of paragraph (19).''.
       (e) Study.--
       (1) In general.--The Securities and Exchange Commission 
     shall conduct a study to determine whether the best interests 
     of investors in mutual funds would be served by the creation 
     of a Mutual Fund Oversight Board that--
       (A) has inspection, examination, and enforcement authority 
     over mutual fund boards of directors;
       (B) is funded by assessments against mutual fund assets;
       (C) the members of which are selected by the Securities and 
     Exchange Commission; and
       (D) has rulemaking authority.
       (2) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Securities and Exchange Commission 
     shall submit a report on the study required under paragraph 
     (1) to--
       (A) the Committee on Banking, Housing, and Urban Affairs of 
     the Senate; and
       (B) the Committee on Financial Services of the House of 
     Representatives.

     SEC. 4. PORTFOLIO MANAGER COMPENSATION.

       Not later than 270 days after the date of enactment of this 
     Act, the Securities and Exchange Commission shall prescribe 
     rules under the Investment Company Act of 1940, requiring 
     that a registered investment company disclose the structure 
     of, or method used to determine, the compensation of--
       (1) individuals employed by the investment adviser of the 
     company to manage the portfolio of the company; and
       (2) the ownership interest of such individuals in the 
     securities of the registered investment company.

     SEC. 5. FINANCIAL LITERACY AMONG MUTUAL FUND INVESTORS STUDY.

       (a) In General.--The Securities and Exchange Commission 
     shall conduct a study to identify--
       (1) the existing level of financial literacy among 
     investors that purchase shares of open-end companies, as such 
     term is defined under section 5 of the Investment Company Act 
     of 1940, that are registered under section 8 of such Act;
       (2) the most useful and understandable relevant information 
     that investors need to make sound financial decisions prior 
     to purchasing such shares;
       (3) methods to increase the transparency of expenses and 
     potential conflicts of interest in transactions involving the 
     shares of open-end companies;
       (4) the existing private and public efforts to educate 
     investors; and
       (5) a strategy to increase the financial literacy of 
     investors that results in a positive change in investor 
     behavior.
       (b) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Securities and Exchange Commission 
     shall submit a report on the study required under subsection 
     (a) to--
       (1) the Committee on Banking, Housing, and Urban Affairs of 
     the Senate; and
       (2) the Committee on Financial Services of the House of 
     Representatives.

     SEC. 6. STUDY REGARDING MUTUAL FUND ADVERTISING.

       (a) In General.--The Comptroller General of the United 
     States shall conduct a study on mutual fund advertising to 
     identify--
       (1) existing and proposed regulatory requirements for open-
     end investment company advertisements;
       (2) current marketing practices for the sale of open-end 
     investment company shares, including the use of unsustainable 
     past performance data, funds that have merged, and incubator 
     funds;
       (3) the impact of such advertising on consumers;
       (4) recommendations to improve investor protections in 
     mutual fund advertising and additional information necessary 
     to ensure that investors can make informed financial 
     decisions when purchasing shares.
       (b) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Comptroller General of the United 
     States shall submit a report on the results of the study 
     conducted under subsection (a) to--
       (1) the Committee on Banking, Housing, and Urban Affairs of 
     the United States Senate; and
       (2) the Committee on Financial Services of the House of 
     Representatives.

  Mr. LIEBERMAN. Mr. President, I rise today to join with my colleagues 
Senator Daniel Akaka and Senator Peter Fitzgerald and cosponsor 
legislation that would begin the crucial process of reforming the 
mutual fund industry. In the wake of shocking revelations of abusive 
trading and self-dealing in some of America's largest funds, it is 
imperative that we act quickly, and I commend my friend Senator Akaka 
for his leadership. We must

[[Page S14042]]

do two things in order to reassure the 95 million Americans who invest 
in mutual funds that they have not misplaced their trust. We must find 
out how this was allowed to happen, and we must put safeguards in place 
to prevent these widespread abuses from poisoning our markets again.
  As the deceptions and conflicts of the Wall Street analysts were 
uncovered last year in the wake of the Enron scandal, the oft-heard 
advice to the average investor was to invest in mutual funds. Investors 
took this advice in droves. Half of all American households own shares 
in mutual funds, and of the $7 trillion invested in mutual funds, $2.1 
trillion of it is invested for retirement.
  Perhaps these working families felt comfortable entrusting their 
precious savings with mutual funds because these funds offer one of the 
most highly regulated investments available. Mutual funds, their 
directors and their managers owe their investors a statutory fiduciary 
duty. Mutual funds are overseen by the SEC through a prescribed 
registration and reporting process as well as a regular examination and 
audit process, pursuant to the Investment Company Act of 1940.
  Unfortunately, the trust of these American families has been abused. 
According to a just-released survey conducted by the Securities and 
Exchange Commission, half of the largest 88 mutual funds have permitted 
a practice called ``market-timing,'' which allows some investors to 
trade quickly in and out of the funds, even though many of those funds 
had explicit policies against such trading because of its detrimental 
impact on other investors in the fund. Many fund companies admitted 
providing portfolio information, unavailable publicly, to certain large 
investors to help them make trading decisions. Also, a full one-quarter 
of the brokerage firms surveyed indicated that they had allowed certain 
customers to engage in late-trading, an illegal practice that allows 
favored investors to execute trades based on that day's price, but 
after the market close, when new information has come to light. Perhaps 
most shocking, Stephen Cutler, Director of the SEC's Enforcement 
Division, has said that there is evidence that officials at fund 
companies profited personally at the expense of their customers by 
market-timing their own funds.
  The SEC didn't discover these abuses on its own initiative, however. 
It acted only after the New York State Attorney General and the 
Massachusetts Secretary of the Commonwealth took steps to investigate 
and stop this conduct. The SEC didn't discover the abuses through the 
extensive reporting process mutual funds go through; the SEC didn't 
discover the abuses through the broad and regular examinations the SEC 
does of these mutual funds; the SEC didn't even discover the abuses 
after it received a tip from an insider, who went to the SEC with his 
attorney, evidence in hand.
  Yesterday, I sent a ten-page letter to SEC Chairman William 
Donaldson, demanding to know how the SEC could have failed to uncover 
such a sweeping problem in the mutual fund industry. I asked how the 
SEC planned to change its practices in order to ensure that it is never 
again caught so unaware. Congress gave the SEC the responsibility to 
monitor the mutual fund industry, and we must ensure that the SEC does 
its job.
  This is not the first time the SEC has been caught off guard with a 
scandal on Wall Street. In October 2002, the staff of the Senate 
Governmental Affairs Committee, of which I was then the Chairman, 
released a report, Financial Oversight of Enron: The SEC and Private-
Sector Watchdogs, detailing the ignored red flags and the missed 
opportunities that kept the SEC from detecting the problems at Enron 
before that company collapsed, taking with it the jobs and retirement 
savings of thousands of Americans. Again, despite being fully aware of 
the troubling conflicts faced by Wall Street analysts, the SEC turned a 
blind eye to that problem until this Committee and others held hearings 
on the issue and New York State Attorney General Eliot Spitzer exposed 
how deeply deceptive many analyst recommendations truly were. I hope 
this mutual fund scandal represents the last time the SEC is playing 
regulatory catch-up.
  In addition to holding the SEC accountable, Congress must also act to 
protect investors by fixing the holes in the statutory scheme for 
mutual funds. That's why I'm pleased to cosponsor the Mutual Fund 
Transparency Act of 2003, which enjoys widespread support from consumer 
groups. It contains many of the policy changes I urged the SEC to 
consider in my letter to Chairman Donaldson. It would strengthen the 
independence of mutual fund boards of directors by tightening the 
definition of independence and by requiring that 75 percent of the 
directors be independent. The bill would also require that mutual fund 
boards have nominating committees comprised solely of independent 
directors, so that directors are not chosen by management.
  In my letter to the SEC, I also criticized the opaque or, in some 
cases, lack of, disclosure to investors about mutual fund fees. The 
Mutual Fund Transparency Act would significantly improve such 
disclosure to investors, by including in the fees disclosed to 
investors the costs the fund incurs when it executes trades of its 
holdings. Currently, such costs are not included among these more 
visible fees, which are disclosed in documents provided directly to 
mutual fund shareholders. Trading costs are currently only disclosed in 
filings with the SEC, but if this bill became law, trading costs would 
be included among the fees provided directly to investors. Such 
information is useful because it can give investors a sense of how 
often their funds are buying and selling assets and at what expense. 
The bill would also require funds to tell shareholders how fund 
advisers are compensated. Public companies are required to tell their 
shareholders how their managers are paid; mutual fund shareholders 
should have the same information. Finally, the bill would require that 
brokers offering mutual funds to investors inform those investors of 
any fees or incentives those brokers are receiving for making those 
sales in a sale confirmation.

  The bill also mandates that the SEC study three initiatives to 
improve mutual fund oversight and transparency. The first two ask the 
SEC and the Comptroller General, respectively, to look at financial 
literacy among mutual fund investors and at mutual fund advertising, to 
determine how relevant information can be made clearer and more readily 
understandable to the average investor. In my letter to the SEC, I 
suggested the agency consider using consumer research methods in order 
to achieve such a result. The third study required by the bill relates 
to the formation of a Mutual Fund Oversight Board to take over the 
frontline efforts of mutual fund regulation from the SEC, while 
remaining under that agency's oversight. This may be a good approach, 
but I have concerns about the costs of such a board being borne by 
mutual fund investors, which is one of the areas suggested for study. I 
hope other options would be explored.
  The Mutual Fund Transparency Act is clearly an important first step 
in closing some of the gaps in the laws governing these important 
investment vehicles. But there is more work to do, and I look forward 
to working with Senator Akaka and the other cosponsors of this bill in 
making further necessary improvements. For example, we should consider 
strengthening the fiduciary duties owed by mutual fund directors and 
managers to their shareholders. In addition, as I indicated in my 
letter to the SEC, guidelines must be developed to prevent mutual fund 
directors from serving on more boards of funds than they can 
effectively oversee; at some of the major funds, directors serve on a 
hundred or more boards. Compliance officers at the funds must be 
elevated to emphasize their role. I suggested in my letter to the SEC 
that such a compliance officer should be active at each fund and should 
report directly to an independent committee of the board.
  Moreover, as I pointed out to the SEC in my letter to Chairman 
Donaldson, we must close the loophole that allowed so many brokers and 
mutual funds to circumvent the law on late trading. Imposing a hard 
deadline of a time at which trades must be into the mutual fund may be 
the solution to this problem. We also must provide even more, clearer 
information to investors about the fees they are actually paying to 
participate in mutual funds. In my letter the SEC, I asked

[[Page S14043]]

the agency why investors should not receive on their monthly statements 
detail about the fees they actually paid to the fund during that time 
period, similar to the finance charge information that credit card 
consumers get. I also suggested that funds be required to provide 
comparative fee information. This would help people make better 
investment decisions, and might also encourage more competition among 
funds to reduce expenses.
  Mutual funds hold the nest eggs, the retirement savings, and the 
college funds for many of America's working families. Through those 
investments in their own futures, those families are also feeding 
capital into today's economy, fueling the engine that creates and 
maintains American jobs. In a very real sense, these mutual fund 
investments are investments in the American dream. We must act now to 
protect them, and to restore the integrity to the mutual fund industry.
  Once again, I thank Senator Akaka for his leadership on this issue, 
and I urge my colleagues to support this important and timely 
legislation.
                                 ______