Can Senator Toomey Get Stablecoin Legislation Passed Before He Leaves?

Senator Patrick Toomey

There’s an opening for the passage of stablecoin legislation this year.

No, really.

Even though crypto critiques rage and bankruptcies blare while crypto prices swirl around the drain, this is the moment for Senator Patrick Toomey (R, PA) to deliver a first-of-its-kind law on stablecoins before he leaves office in January.

Complicating matters, narratives have changed in the past several months:

    • Pre-“crypto winter” narrative: “Legislation is coming to help support innovation and grow the blockchain industry.”
    • “Crypto winter” narrative: “Legislation needs to save us from the contagion that blockchain technology could ignite in the financial system.”

Yet, with either narrative, there’s an acute need for stablecoin legislation.

And so the table is set for Senator Toomey, who could steward narrowly-defined legislation in an expedited process that builds on his Stablecoin TRUST Act. In fact, the Senator said 2022 passage was possible only a month ago when speaking at the Consensus conference in Austin:
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A Wave of Regulation Sweeps Digital Europe and The Blockchain Industry

Regulation in Europe

European government officials have been busy the past several weeks as efforts to improve the guardrails around the digital commerce and blockchain ecosystems finally came to fruition. Let’s review.

MiCA

Regarding the new Markets in Crypto-Assets (MiCA) regulation framework agreed to on June 30, Stefan Berger, a German centre-right lawmaker who helped lead the European Parliament’s negotiations was widely quoted as saying, “Today we put order in the Wild West of crypto assets and set clear rules for a harmonised market.” He added, “The recent fall in the value of digital currencies shows us how highly risky and speculative they are and that it is fundamental to act.”

CNBC described some of the regulation’s most restrictive elements:

“Under the new rules, stablecoins like tether and Circle’s USDC will be required to maintain ample reserves to meet redemption requests in the event of mass withdrawals. Stablecoins that become too large also face being limited to 200 million euros in transactions per day.”

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Grayscale, Bitwise ETF Applications Rejected By SEC; Grayscale Sues

SEC and Grayscale ETF

Late yesterday, the Securities and Exchange Commission (SEC) announced its rejection of applications by both Grayscale (see entire PDF) and Bitwise (view that one) to create first-of-its-kind Bitcoin Spot ETF (Exchange-Traded Fund) investment vehicles.

In declining the Grayscale application, which would have converted the Grayscale Bitcoin Trust (GBTC) to an ETF, the SEC said the company did not show it could overcome the Commission’s concerns around the potential for fraud and market manipulation:

“Because, here, NYSE Arca is seeking to list a spot bitcoin ETP (i.e. Grayscale’s spot Bitcoin ETF) that relies on the CME as the purported ‘significant’ regulated market with which it has a comprehensive surveillance sharing agreement, the assets held by the proposed ETP would not be traded on the CME. Thus there is reason to question whether a surveillance-sharing agreement with the CME would, in fact, assist in detecting and deterring fraudulent and manipulative misconduct affecting the price of the spot bitcoin held by the proposed ETP. The Exchange could have overcome this concern by demonstrating that there is a reasonable likelihood that a person attempting to manipulate the proposed ETP would have to trade on the CME in order to manipulate the ETP because such demonstration would help establish that the Exchange’s surveillance-sharing agreement with the CME would have the intended effect of aiding in the detection and deterrence of fraudulent and manipulative misconduct related to the spot bitcoin held by the proposed ETP. As discussed and explained above, the Commission finds that NYSE Arca has not made such demonstration.”

For Bitwise and its ETP Trust, the SEC rejected its application on similar terms:

“NYSE Arca has not provided sufficient information to establish both prongs of the ‘market of significant size’ determination, and thus the Commission cannot conclude that the CME bitcoin futures market is a ‘market of significant size’ related to spot bitcoin such that NYSE Arca would be able to rely on a surveillance-sharing agreement with the CME to provide sufficient protection against fraudulent and manipulative acts and practices. Therefore, NYSE Arca has not met its burden of demonstrating that the proposal is consistent with Exchange Act Section 6(b)(5),135 and, accordingly, the Commission must disapprove the proposal.”

What’s next

In short, a lawsuit.

Although Bitwise has yet to comment, a statement released last night by Grayscale announced its intention to sue the SEC. Grayscale CEO Michael Sonnenshein added, “… We are deeply disappointed by and vehemently disagree with the SEC’s decision to continue to deny spot Bitcoin ETFs from coming to the U.S. market.”

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More Enforcement Actions To Come For NFTs Says Upstream’s Elenowitz

NFTs and Securities

Mark Elenowitz, an entrepreneur and self-described Wall Street veteran with a resume to back it up, produced one of the few regulatory-related presentations at NFT.NYC last Thursday.

Titled “Innovation And Regulatory Challenges in Digital Securities and NFTs,” not only did Elenowitz provide guidance, but pointed out that certain holders and purveyors of NFTs today may be headed for a meeting with the Internal Revenue Service (IRS) or an enforcement action by the Securities and Exchange Commission (SEC) in the future.

The success of Elenowitz’s own business(es) appears to be partially banking on the fact that compliance is no easy task in the current, wider NFT marketplace. He just launched Upstream, a Seychelles-based MERJ exchange powered by another one of his company’s, a FINRA compliance vendor called Horizon.

Upstream seeks to offer access to “IPOs, NFTs, celebrity ventures” according to its website. For example, given the challenges around securities regulations like those in the United States and certain NFT models, his exchange recently provided the ability to “geo-fence” an offering. This solution speaks to increasing wariness of regulators in the U.S. by market participants as well as the need for an easier and less costly way to be a security token.

(Upstream Exchange blog: “Music and film using NFTs to drive the future of fan engagement”)

Notably, there was no talk about whether NFTs should be under SEC or CFTC jurisdiction. In fact, Elenowitz believes many of today’s NFT projects fall under the securities designation unless they are a collectible only or non-fungible utility.

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What ‘Crypto Winter’? NFT Community Unites at NFT.NYC

NFT.NYC

1,500 speakers, 15,000 attendees and an agenda 56 pages long (see the PDF) – NFT.NYC was huge this past week and included a badge pick-up line stretching halfway around a Manhattan city block for much of the day on Monday.

There were no government types on stage, but the palpable momentum exhibited on and off-stage spoke to the importance of the NFT space to 20- and 30-somethings across the world – especially the United States – given the anecdotally-observed demographics of the show.

More observations about NFT.NYC:

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House Agriculture Committee Takes On “The Future of Digital Asset Regulation” (VIDEO)

Vincent McGonagle, CFTC

Today, the House Agriculture Subcommittee on Commodity Exchanges, Energy, and Credit looked at “The Future of Digital Asset Regulation.” Video stream below.

Previously, the committee members Rep. Glenn “GT” Thompson (R, PA and Ranking Member) and Rep. Ro Khanna (D, CA) as well as Rep. Tom Emmer (R, MN) and Rep. Darren Soto (D, FL) have co-sponsored the Digital Commodity Exchange Act of 2022 (DCEA), which provides the Commodity Futures Trading Commission (CFTC) with oversight of key aspects of the digital assets world.

Four witnesses representing a regulator, an academic from the legal world and two blockchain industry executives have submitted prepared testimony for today as follows:

    • Vincent McGonagle, Director of the Division of Market Oversight, Commodity Futures Trading Commission (CFTC) – [See PDF]
    • Christopher Brummer, Georgetown University Law Center – [PDF]
    • Jonathan Levin, Co-Founder and Chief Strategy Officer, Chainalysis – [PDF]
    • Charles Hoskinson, CEO, Input Output Global, Singapore – [PDF]

View the hearing:

Live blog featuring Q&A with The Committee

Ranking members Thompson and Rep. Michelle Fischbach (R, MN) offer opening statements including the need for clearly defined core principles and regulation. Even though the blockchain industry is nascent and its unknown where it will lead,, Rep. Thompson says “that should excite us not intimidate us.” He’s all in on the innovation potential of blockchain and its potential benefits to the United States.

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The New ‘American Data Privacy and Protection Act’ and Blockchain Technology

American Data Privacy and Protection Act

To be clear – there is no mention of blockchain technology and cryptocurrency in the new American Data Privacy and Protection Act (ADPPA). But, with its introduction, it may raise the question for some of when/where privacy can be a part of the blockchain discussion.

A track of content at last Saturday’s crypto conference Consensus 2022 in Austin, Texas said it “all” with its title: “Can We Solve Privacy?

Later in the day, Carole House, Director for Cybersecurity and Secure Digital Innovation for the White House National Security Council, told the audience she is hopeful that one day uniform KYC AML (Know-Your-Customer Anti-Money-Laundering) crypto rules can be applied globally for financial transactions – an application at the opposite end of privacy. Yet, she also indicated that consumer privacy is a conundrum that needs to be solved for today’s blockchain tech.

Similar to recent blockchain policy efforts such as the Responsible Financial Innovation Act in the Senate and the Digital Commodity Exchange Act in the House, creating a “a strong national framework” – and this time for a national government data privacy policy – is taking centerstage this week with hearings for the ADPPA.

The bill was released as a draft on June 3:
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House Has “Our Own Ideas” Says Rep. Soto Regarding Lummis/Gillibrand Bill

Rep. Darren Soto

Congressman Darren Soto (D, FL), who is also co-Chair of the Congressional Blockchain Caucus, reiterated today that he wholeheartedly supports creating effective regulation that offers guardrails to crypto markets. But in an on-stage interview with Axios, if anyone thinks Rep. Soto is going to let the Senate take the lead, they appear to be mistaken.

He said in regards to the new “Responsible Financial Innovation Act” introduced in the Senate by Senator Cynthia Lummis (R, WY) and Senator Kirsten Gillibrand (D, NY), “We definitely agree that the SEC jurisdiction should be narrowly defined to treat securities [such that] if you’re doing an issuance that results in stock later on – which every now and again has happened in the past – that should be a security. But others should be either a currency or governed by the FTC or CFTC. We agree broadly with some of the ideas in [the Lummis/Gillibrand] bill and certainly have our own ideas in the House and we need to reconcile those eventually.”

The seeds of Rep. Soto and Rep. Warren Davidson’s (R, OH) Digital Taxonomy Act and Token Taxonomy Act began back in 2018/2019.

Rep. Soto responded to Axios on several topics…

On Promoting Innovation and Regulating Simultaneously

CONGRESSMAN DARREN SOTO: Existing regulators need their scope and jurisdiction redefined while making sure to foster innovation. The very laws we’re working on are trying to strike that balance with the Token Taxonomy Act, with the Digital Taxonomy Act. There’s an issue right now with whether the SEC is going to regulate futures, while not allowing for spot investments – this is an example where existing laws are just antiquated.

On SEC Chair Gary Gensler Desire to Maintain Existing Laws

CONGRESSMAN DARREN SOTO: I’m in Congress. Of course I disagree with that.

Our job is to pass new laws to evolve to what society has in the case of cryptocurrency, it could be one of four different types of archaic assets that are being discussed by Chair Gensler: it could be a commodity, a security, a currency and even could be a future.

Trying to fit it into 20th century boxes just doesn’t work. But, there is good news. We had bills that passed the House to help get the agencies to respond and get their input before we pass laws. While the Senate didn’t take it up, President Biden put out his Executive Order and utilized a lot of that language. The holdup is Congress needs to hear back from agencies. I’d wave a magic wand tomorrow and start defining these things but some of my colleagues want to hear from the executive branch as well. So, right now Congress is in that dialogue. We expect over the next couple of months to get those reports back, and then we’ll put pen to paper… but saying that 20th century financial definitions are going to define 21st century cryptocurrencies is just off the mark.

What is a Light Touch to Regulation

CONGRESSMAN DARREN SOTO: It starts with defining jurisdictions so that we don’t have agency overlap. It also makes sure that we’re starting with basic rules of the road like we did for the Internet… back in the late 90s, early 2000s. So now we’re at a point where things like 340, we may need to amend but at the time, we put in some basic rules the road to protect consumers. We just want to make sure we have guardrails for the most blatant frauds that you could see like “pump and dump” and other things that that are that are intentional rather than the risks of the market which are naturally going to be there similar to stocks and precious metals and other currencies. There needs to be basic rules to protect consumers. But other than that, we need to allow for innovation.

On Clarity

CONGRESSMAN DARREN SOTO: We are troubled by the fact that many new crypto firms are paying half their costs in legal just to help navigate so many of these different jurisdictions. That is troubling to us. We see a big move happening when China decided not to play anymore cryptocurrency – that puts us and Europe as natural leads on this. But without rules of the road and uncertainty, it’s tough to get capital to start a lot of these different companies.

What Parts of the Lummis/Gillibrand Bill Would Have Bipartisan Report

CONGRESSMAN DARREN SOTO: I can’t say that I’ve read every single word [of the Lummis/Gillibrand bill] and poured through it – we have two chambers, right? And, we in the House put out our own ideas with the Digital Taxonomy Act and the Token Taxonomy Act which is an even lighter touch than what they’re talking about in the Senate with Representative Warren Davidson, a Republican from Ohio, and I’m a Democrat from Central Florida. So we’ll put out and progress our own bills, [the Senate will] be putting out theirs and then we’ll either go to conference there will be negotiating between the chambers. But, we believe in the bills we’ve already put out.

On Using Crypto and Educating

CONGRESSMAN DARREN SOTO: I’ve been interested in it for a while for the use of it. I represent Central Florida place where folks come to travel from all around the world to our top theme parks, our beaches and so many other great things. When we’re talking about doing international services like putting together – as a travel agent – someone’s experience in Central Florida or helping out with other services in that are, you reduce friction costs by using cryptocurrency across several different nations. That’s a big, exciting part of what can help Central Florida in that we do so much international tourism business, but also for remittances. We have a lot of first generation immigrants and they have family members back in places that are not stable like Venezuela. And now we’re seeing in Ukraine how crypto was able to help – through decentralized currency – undermine the the attacks that have been [carried out by an] unjustified Russia.

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