The rule’s purpose is to protect the beneficiaries of invested state and municipal assets, such as pension plans and their participants, by preventing advisers from using political contributions to influence the officials responsible for the hiring of investment advisers.
The date on which covered advisers must comply with the ban on payments to certain third-party solicitors was originally set for September 13, 2011, but will now be nine months following the compliance date for the SEC’s rule governing registration of municipal advisers under the Securities Exchange Act of 1934.
Under the Advisers Act, the pay-to-play rule—Rule 206(4)-5—bans certain advisers from third-party solicitation, by compensating any person who would solicit a government entity on behalf of the adviser for advisory services, unless the person is a direct associate of the adviser as an executive officer, general partner, managing member or employee; or the person is a registered investment adviser, registered broker/dealer or registered municipal adviser.
According to the SEC, pay-to-play practices could result in higher fees to advisers for potentially inferior advisory services provided to government entities because of an attempt to recoup political contributions by the adviser, or because contracts are not negotiated at arm’s length. Further, the SEC reasoned that pay-to-play practices could effectively block the most suitable adviser for a mandate from consideration if the most suitable adviser is a smaller adviser who either cannot afford to make, or refuses to make pay-to-play contributions.
The SEC’s final rule for the extension of the compliance date is at http://www.sec.gov/rules/final/2012/ia-3418.pdf.