GOP Senators Urge DOL to Implement EO Granting 401(k) Access to Alts

A group of nine Republican senators are urging the U.S. Department of Labor to implement an executive order from President Trump that would dramatically expand investment options for Americans’ retirement savings. In a letter to Labor Secretary Lori Chavez-DeRemer, the senators argue that it’s time to grant millions of 401(k) holders the same access to alternative assets – like private equity and cryptocurrency – that is currently enjoyed by institutional investors.

The senators’ appeal centers on a long-standing disparity in the U.S. retirement system. While defined-benefit plans, such as public pensions, routinely allocate a significant portion of their funds to alternative assets, 401(k) participants are often limited to traditional, publicly-traded investments.

The letter – led by Senator Steve Daines of Montana and signed by Daines, Markwayne Mullin (R-Okla.), Jim Banks (R-Ind.), Bernie Moreno (R-Ohio.), Cynthia Lummis (R-Wyo.), Bill Hagerty (R-Tenn.), Katie Britt (R-Ala.), Eric Schmitt (R-Mo.), and Bill Cassidy (R-La.) – praises the President’s executive order as a critical step toward modernizing the retirement framework. The senators contend that outdated regulations and the threat of “meritless litigation” have unfairly discouraged employers from offering alternative investments within 401(k) and other defined-contribution plans.

Senators point out that defined-contribution plans are the dominant retirement savings vehicle for American workers, yet these plans have underperformed compared to public pensions, a gap that a 2024 study by the National Association of State Retirement Administrators attributes to the latter’s higher allocation to alternative assets.

The letter calls for a formal rulemaking process to create a “regulatory safe harbor.” This, they argue, would provide legal certainty for employers and fiduciaries, allowing them to prudently offer alternative investments without fear of frivolous lawsuits. A 2018 Georgetown University study is also cited, which estimated that expanding access to alternative assets could boost a retirement plan’s value by 17% over its lifetime and reduce losses during market downturns.

By taking this step, the senators said the DOL can help “unleash the full potential” of U.S. financial markets for all workers, aligning their retirement opportunities with those of sophisticated institutional investors.

The executive order signed Aug. 7, 2025, specifically instructs the Secretary of Labor to take several actions.

• Review guidance on a fiduciary’s responsibilities under the Employee Retirement Income Security Act of 1974, i.e., ERISA. The goal is to provide clarity on how fiduciaries can prudently offer alternative investments.
• Clarify DOL’s position on alternative assets and establish clear criteria for fiduciaries to “prudently balance potentially higher expenses against the objectives of seeking greater long-term net returns and broader diversification of investments.”
• The order instructs DOL to “prioritize actions that may curb ERISA litigation that constrains fiduciaries’ ability to apply their best judgment in offering investment opportunities to relevant plan participants.” ERISA cases often involve disputes over employee benefits, such as retirement and health plans, and include breaches of fiduciary duty, prohibited transactions, and other violations.
• Re-examine DOL’s December 2021 Supplemental Private Equity Statement and consider whether to rescind it.

The DOL 2021 Supplemental Private Equity Statement was already rescinded on Aug. 12, following the executive order.

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