The Right to Choose Your Investment Partner

The following is an abridged and revised version of my keynote address to the FinTech Global Expo at the San Diego Convention Center on May 29, 2015. I was introduced by conference organizer Andrea Downs, President and CEO of Coastal Shows.

In startup investment, there have almost as many important developments in the past three years as there have been in the past 30. Let me take you on a very short trip on my time machine back to the days just before the passage of the Jumpstart Our Business Startups—or JOBS Act in 2012

In those days—during the reign of the 80-year-old ban of general solicitation of private stock offerings that the JOBS Act repealed—it wasn’t even clear that you could have a conference, trade show, or expo like this one. That was a concern among angel investors I had spoken to interested in holding a trade show, but uncertain of the legality.

Maybe we can remember the time in which if you were an entrepreneur and weren’t networked in, and you wanted to find an accredited investor, you had to whisper to someone on the street corner: “Hey, are you rich? Want to invest in my company?”

And it’s amazing that since the JOBS Act—really since 2013, when the SEC implemented Title II and repealed the general solicitation ban—we’re seeing all these platforms like OurCrowd.com and the others being discussed. It’s amazing to see how much that has grown and is getting capital to entrepreneurs.

We’ve come a long way, yet we have a long way to go. The SEC still hasn’t implemented Title III, so we still don’t have crowdfunded investment for ordinary investors. So ordinary folks can’t share in the dream quite yet.

But we’re getting there. So much is happening in state legislatures. The Illinois House of Representatives and Senate just passed an equity crowdfunding bill for all in-state residents that’s awaiting the new governor’s signature. Michigan, Texas, Georgia and other states have already enacted similar statutes for their residents.

One of the reasons I’m so optimistic is that I view the grassroots push to legalize crowdfunded investing for everyone as a freedom movement. Even though the JOBS Act, deregulation, and lifting financial red tape are often associated with Republicans and conservatives, I see this as a broad general freedom movement, similar to the movement for the right to smoke marijuana and to marry your partner of choice.

My organization, the Competitive Enterprise Institute, looks at Dodd-Frank, Sarbanes-Oxley, and all regulations as a burden to personal rights. After all, what could be more personal than how you invest your money? If you can now choose who your domestic partner is, why in hell shouldn’t you be able to choose who your investment partner is?!

Yes, it is a freedom movement. It is a about the personal freedom to use your money as you see fit. To take risks, but also have the freedom to prosper, as our President Lawson Bader calls it.

After all, you don’t have to be “accredited” to go and gamble $5,000 or $10,000 in Vegas or probably not too far from here. You don’t have to be “accredited” to saddle yourself with debt on a mortgage. Yet for some reason these same individuals the government encourages to gamble through state lotteries and making it easy to get a home loan can’t be trusted to be trusted to put $1,000 into something that might fail. I think it’s time the government treated ordinary Americans as adults when it comes to investing, and we recognize the fundamental right to invest with a minimum of red tape.

At this moment, the greatest danger to this fundamental right to invest comes from an agency that heretofore hasn't been associated with investing: The Department of Labor. The Department of Labor’s proposed fiduciary rule, for which comments are due July 17, would negatively affect 401(k)s, IRAs, Coverdell education accounts, and health savings accounts.

IRAs are of the most concern for the future of crowdfunding. I see in the exhibitors’ room of this and other crowdfunding conferences a lot of self-directed IRAs that have clients interested in crowdfinanced investment. Yet this rule says that even appraisers or custodians for self-directed IRAs could be labeled as fiduciaries, and as such they would face liabilities if their clients don’t invest in what the government sees as their “best interests”

The language in this regulation is just so paternalistic. The Department of Labor actually says in this regulation that “most consumers generally cannot distinguish good advice, or even good investment results, from bad” and can’t “prudently manage” their own investment accounts.

I am an optimist, and I believe that together we can nip this awful rule in the bud, and move on with the JOBS Act, as well as a new JOBS Act 2.0. Let’s Tweet, share and “like” that choice in investment isn’t just good for the economy and innovation; it’s a fundamental personal right.