SEC Commissioner Uyeda Challenges Gensler’s Regulation by Enforcement

SEC Commissioner Uyeda

One of the new Securities Exchange Commisssion (SEC) commissioners appointed last May, Mark Uyeda, said at this week’s “SEC Speaks 2022” conference that regulation by enforcement is not in the public’s interest for creating effective guardrails for crypto.

By doing so, Uyeda joins fellow SEC commissioner Hester Peirce in taking issue publicly with Chair Gary Gensler’s current approach for regulating cryptocurrency.

His view isn’t a total surprise given the politics. Gensler is part of the 3-2 Democrat majority on the SEC’s Commission. Uyeda is a Republican along with Peirce.

Nevertheless, Uyeda is not new to the inner-workings of the SEC having worked on its staff since 2006 as an advisor to Chairman Jay Clayton among others as well as serving a securities counsel to the Senate Committee on Banking, Housing, and Urban Affairs’ minority staff and as an advisor to House Speaker Nancy Pelosi (D, CA) according to Bloomberg.

The speech

Uyeda’s speech on crypto zeroed in on the potential loss of innovative firms in the United States. Just yesterday, Chair Gensler stated in answer to a related question by former Commerce Secretary Penny Pritzker at NYC Summit that innovation only occurs in the public sector with the help of academics and “tinkerers.” It was an awkward moment considering the room full of entrepreneurs gathered in front of him. Risk-taking entrepreneurs are often considered the heart of innovative products and companies in crypto or any industry.

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Defiant or Defensive, SEC Chair Gensler Unleashes PR Blitz On Crypto

SEC Chair Gary Gensler at NYC Summit

Spinning out of the Labor Day holiday, U.S. Securities and Exchange Commission (SEC) Chair Gary Gensler unleashed a public relations blitz about cryptocurrency and its regulation.

His position mostly reinforced what the Chair has said before: crypto companies should “come in” and connect with the SEC to ensure regulatory compliance, the Howey Test is the unquestionable arbiter of all things securities-related and Bitcoin is a commodity.

Putting his many appearances together such as SEC Speaks 2022, The Wall Street Journal and CoinDesk, Chair Gensler appears either increasingly defiant or defensive in relation to the crypto hordes depending on your point-of-view.

The least publicized of his media appearances on Wednesday was his 10-minute taped interview (see the video) with former Commerce Secretary Penny Pritzker for NYC Summit. Ms. Pritzker’s firm Inspired Capital co-hosted the New York City entrepreneurial ecosystem event along with Primary Capital.

Gensler’s role as head of the CFTC (2009-2014) overlapped six months with Pritzker’s Commerce Secretary role (2013-2017) during the Obama administration.

Interview highlights

Among the questions, Ms. Pritzker inquired about “Bitcoin or other cryptocurrencies” and how the Chair saw them evolving from a regulatory standpoint. Chair Gensler avoided mentioning any cryptocurrency by name other than Bitcoin:

(lightly edited for clarity)

“This is a bit of innovation that came along, whomever Satoshi Nakamoto, whoever she was, or he, this innovation. And the investing public got interested – certainly by five, six years ago – got pretty interested. I think that it’s similar to what I said earlier. I think the investing public benefits from disclosures, understanding what a group of entrepreneurs might be doing, and, frankly, that most of the tokens and there’s five or 10,000 tokens to buy most of the tokens have a group of entrepreneurs and the public is trying to invest in those projects and get a better future. Well, those are the attributes of a security. And those are things that the SEC does well. I’ve said come in, talk to us, help get the the intermediaries registered, the crypto exchanges, the crypto lending platforms, the crypto broker dealers, registered we can use exemptive authority to to where we can to tailor this but also the disclosures around the tokens.”

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Will SEC Chair Face Scrutiny From Democrats

Democrats and the SEC

A Securities and Exchange Commission (SEC) Chair appointed by a Democratic President under pressure from Democrats? It could happen soon. Republicans are already confronting Chair Gary Gensler and his agency.

Given last week’s demands for regulatory clarity amid an insider trading enforcement action brought by the SEC against a former Coinbase employee and others, blockchain-friendly Democrats may need to confront the SEC directly – likely after this fall’s elections.

Even Commodity Futures Trading Commission’s (CFTC) Caroline Pham seemed perplexed by the SEC’s latest action while quoting from James Madison’s Federalist No. 49. Noticeably silent was SEC Commissioner Hester Peirce whose past calls for regulatory clarity versus the use of enforcement are well-known.

The point isn’t that crypto markets should not be regulated. Far from it. But currently, these new, innovative markets are only regulated through enforcement. If Industry knew the rules at the outset, then it would be less likely to run afoul of securities laws. The SEC seems to be saying that regulation begins and ends with the early 20th century’s Howey Test (see PDF from 2019 on SEC website) and that’s all the clarity needed.

Democratic pressure on the SEC and Chair Gensler could build from any number of Senators and Representatives who are busy working on crypto regulation -even the President. The only thing preventing a Democrat-SEC collision is this fall’s elections as well as an extended crypto winter making crypto less interesting to voters and therefore Congress.

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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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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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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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Senators Lummis and Gillibrand Introduce Responsible Financial Innovation Act (RFIA)

Responsible Financial Innovation Act

Like the finest porterhouse steak at Peter Luger’s, Senator Cynthia Lummis (R, WY) and Senator Kirsten Gillibrand (D, NY) formally delivered to the U.S. Senate yesterday their new, meaty, digital assets legislation titled, “Responsible Financial Innovation Act (RFIA).”

Is this steak a history in the making? The blockchain community appeared ravenous and ready to inhale it.

The scope of the bill is sweeping and mostly favors Commodity Futures Trading Commission (CFTC) jurisdiction versus the Securities and Exchange Commission (SEC) and therefore applies a commodities classification for many digital assets.

Blockchain Association’s Jake Chervinsky noted in a tweet yesterday that the CFTC leadership role in crypto in the new bill syncs with the House’s Digital Commodity Exchange Act (DCEA) efforts driven by the House Ag Committee and its Ranking Member Glenn Thompson (R, PA). Bi-partisan, bicameral ‘kumbaya’ reigns as Chervinsky pointed out. Similarly, Senator Gillibrand is on the Senate’s Ag Committee, Senator Lummis is on Banking.

From the medium post by Senators Lummis and Gillibrand: “Digital assets that meet the definition of a commodity, such as bitcoin or ether, which comprise more than half of digital asset market capitalization, will be regulated by the CFTC.” This has been never more clearly defined by the a U.S. government entity. But, if you have a security token, fear not, you’ll be in the SEC’s purview.

Overall, this bill sweeps into its pages many of the bills from both sides of Congress – such as the aforementioned DCEA – that have already been introduced including those around stablecoins and crypto tax guidance to name a few.

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Not All Stablecoins Are Created Equal – Or Stable

Stablecoins

This week’s DC Blockchain Summit from the Chamber of Digital Commerce included a timely panel discussion on stablecoins given the recent Terra Luna stablecoin implosion as well as yesterday’s testimony in front of the House Financial Services Committee by Federal Reserve Vice Chairwoman Lael Brainard.

The Chairwoman was hopeful telling lawmakers that stablecoins and a central bank digital currency (CBDC) could provide a “safe” government-backed settlement layer and “would actually facilitate and enable private sector innovation.”

Panel participants for “Stablecoins and the Future of Money” included:

Are stablecoins innovative?

Moderator Stephen Palley of law firm Anderson Kill led things off by wondering aloud whether stablecoins are truly an innovation.

Caitlin Long, Founder and CEO of Custodia Bank and a well-known, Wyoming-based cryptocurrency advocate, began by saying that they are innovative but not truly crypto. She clarified: “They are not truly crypto in the sense that anything that touches the US dollar – so I’m talking about any sort of backed version of a stablecoin – ultimately has to clear through the Federal Reserve and therefore they’re not decentralized meaning they may be issued on blockchain-like rails, but they are not decentralized. They have an issuer and anything that has an issuer by my definition isn’t decentralized. Ergo, it is quasi-crypto, but not actually crypto.”

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