Op-ed: Cryptocurrency should be allowed in individual retirement plans. That’s why I’m introducing the Financial Freedom Act

The federal government has no business interfering with the ability of American workers to invest their 401(k) plan savings as they see fit.

Sadly, that’s not the Biden administration’s view.

The U.S. Department of Labor on March 10 released regulatory guidance in an attempt to bar 401(k) accounts from investing in cryptocurrency, singling out this specific investment type. The guidance came from the Employee Benefits Security Administration – a small but powerful agency inside the Labor Department charged by Congress with regulating the $6.2 trillion 401(k) investment industry covering about 91 million American workers.

The Labor Department’s guidance threatens to investigate plans that allow participants to select investments in cryptocurrency, including plans with brokerage windows, a tool used by retirement savers to self-select their 401(k) plan investments.

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This policy change is inconsistent with longstanding practice. The Labor Department has long permitted employers to offer brokerage windows as an option to employees who prefer to personally manage the money they worked hard to earn. The agency’s new guidance ends this tradition of economic empowerment in favor of big-brother government control.

Additionally, the Labor Department’s overreaching guidance seeks to place a massive new regulatory burden on 401(k) plan fiduciaries by requiring them to assess the suitability of investments offered through a brokerage window and to restrict investment options. If a company or financial firm allows their 401(k) investors to choose to invest in cryptocurrency, they will now be at risk for heavy-handed enforcement actions.

Additionally, the guidance was published without announcement, and the agency skirted the notice and public comment process put in place by Congress that agencies are required to follow.

Americans should be able to invest their retirement savings as they choose.

That’s why today I am introducing the Financial Freedom Act.

My bill would prohibit the Labor Department from issuing a regulation or guidance that limits the type of investments that self-directed 401(k) account investors can choose through a brokerage window. Additionally, the act would hold harmless a 401(k) plan’s decision makers who authorize individual retirement savers to self-direct their investment choices using a brokerage window.

The Financial Freedom Act empowers the American retirement saver and preserves the precedent of investment freedom. For decades, 401(k) participants in plans with brokerage windows have been able to buy and sell investments of their choice – that freedom to choose is the entire purpose of the brokerage window. The Labor Department should not be able to limit the range or type of investments retirement savers can select.

Today, the Biden administration is targeting cryptocurrency. Which investment class is next?

Whether or not you believe in the long-term economic prospects of cryptocurrency, the choice of what you invest your retirement savings in should be yours — not that of the government.

It’s clear there is interest in giving retirement savers the option to invest in cryptocurrency. Fidelity, the nation’s largest 401(k) provider, recently announced that it will make bitcoin available on its platform. They aren’t the first provider to make this move, and likely won’t be the last. Sadly, the Labor Department has already criticized these plans to empower investors.

America was built on the idea that we each chart our own destiny. The government-knows-best approach being pushed by the current administration runs counter to the values that made our country the most prosperous nation in history.

— By Sen. Tommy Tuberville, R-Ala.