The chairman of the U.S. Securities and Exchange Commission (SEC), Gary Gensler, has been making headlines in the crypto space with his statements on the regulatory status of various digital assets.He has repeatedly affirmed that Bitcoin is a commodity, but has been reluctant to say the same for other cryptocurrencies, especially those that have been issued through initial coin offerings (ICOs) or have some form of governance mechanism. He has also expressed concerns about stablecoins and their potential impact on the financial system. What are his intentions behind these statements? Is he trying to protect investors, stifle innovation, or something else?
I will try to analyze Gensler’s views and motives from an opinionated perspective, based on his public speeches, interviews, and testimonies. I will also discuss the implications of his stance for the crypto industry and the investors.
Gensler’s Background and Philosophy
Before becoming the SEC chair, Gensler had a long and distinguished career in both the public and private sectors. He was a partner at Goldman Sachs for 18 years, where he held various leadership positions in trading, finance, and technology. He also served as the undersecretary of the Treasury for domestic finance and the assistant secretary of the Treasury for financial markets under President Bill Clinton. President Barack Obama later appointed him as the chairman of the Commodity Futures Trading Commission (CFTC), where he oversaw the implementation of the Dodd-Frank Act and the regulation of the derivatives markets after the 2008 financial crisis.
Gensler is also an academic and an educator. He is a professor of the practice of global economics and management at the MIT Sloan School of Management, where he teaches courses on blockchain technology, digital currencies, financial innovation, and public policy. He is also a senior advisor to the MIT Media Lab’s Digital Currency Initiative.
Some observers have described him as a “crypto-friendly” regulator, given his expertise and interest in the field. He has acknowledged the potential benefits of blockchain technology and digital assets for innovation, efficiency, inclusion, and competition. He has also praised Bitcoin as a “catalyst for change” and a “scarce store of value” that is not controlled by any government or central authority.
However, he is also a “crypto-savvy” regulator who understands the risks and challenges posed by the nascent industry. He has emphasized the need for investor protection, market integrity, financial stability, and national security in the crypto space. He has also warned about the prevalence of fraud, manipulation, hacking, money laundering, tax evasion, and terrorist financing in the crypto ecosystem.
In my personal opinion, Gensler’s philosophy seems to be based on two main principles: first, that every financial product or service should be subject to some form of regulation or oversight; and second, that the existing laws and rules should be applied consistently and fairly to all market participants.
Gensler’s Stance on Bitcoin
Gensler’s stance on Bitcoin is relatively straightforward and consistent. He has repeatedly stated that Bitcoin is not a security under the federal securities laws, but rather a commodity under the Commodity Exchange Act (CEA). This means that Bitcoin falls under the jurisdiction of the CFTC, not the SEC.
This classification is based on the Supreme Court’s Howey test , which determines whether an asset is a security or not based on whether it involves an investment of money in a common enterprise with an expectation of profit derived from the efforts of others. Bitcoin does not meet this criteria because it does not have any issuer or promoter who controls its supply or value. It is also decentralized and distributed among its users who validate transactions and secure the network through proof-of-work mining.
His view aligns with his predecessors at the SEC and the CFTC, who have also recognized Bitcoin as a commodity. It also reflects the reality of how Bitcoin operates and functions in the market. This does not mean that Bitcoin is free from any regulation or oversight. As a commodity, Bitcoin is subject to anti-fraud and anti-manipulation provisions under the CEA and the securities laws. It is also subject to reporting and recordkeeping requirements under the Bank Secrecy Act and the Patriot Act. Moreover, Bitcoin derivatives, such as futures and options, are regulated by the CFTC as commodity contracts. And Bitcoin exchanges, platforms, wallets, and custodians are regulated by various state and federal agencies as money transmitters, broker-dealers, or investment advisers.
Gensler’s intention behind his stance on Bitcoin seems to be to acknowledge its unique nature and innovation, while ensuring that it is subject to appropriate rules and standards that protect investors and the public interest.
Gensler’s Stance on Other Cryptocurrencies
Next, his stance on other cryptocurrencies. It is less clear and more nuanced. He has indicated that many of them should be considered securities under the federal securities laws, but he has not specified which ones or how to determine their status. He has also suggested that some may be commodities or hybrid instruments that fall under the SEC and the CFTC’s purview.
Gensler’s position is based on his interpretation of the Howey test , which he believes applies to most of the crypto tokens that have been issued through ICOs or have some form of governance mechanism. He argues that these tokens involve an investment of money in a common enterprise with an expectation of profit derived from the efforts of others, such as the network’s developers, promoters, or validators.
His view is consistent with that of the SEC staff, who have issued several guidance documents and enforcement actions against various crypto projects that they deemed to be securities offerings without proper registration or exemption. It is also supported by some federal courts that have applied the Howey test to crypto tokens in civil and criminal cases .
However, his angle is not universally accepted or applied. Some crypto projects have challenged the SEC’s authority or interpretation in court or through administrative proceedings. Some have also sought clarity or relief from the SEC through no-action letters or safe harbor proposals. Some have also argued that their tokens are not securities but rather commodities, currencies, utility tokens, or network tokens that serve a different purpose or function than investment contracts .
His intention behind his stance on other cryptocurrencies seems to be to assert the SEC’s jurisdiction and mandate over a large segment of the crypto industry that he believes poses significant risks to investors and the market. He also seems to be seeking more cooperation and coordination from the crypto industry to comply with the existing laws and rules or seek appropriate exemptions or waivers.
Gensler’s Stance on Stablecoins
Gensler’s stance on stablecoins is also unclear and complex. He has expressed concerns about stablecoins and their potential impact on the financial system, but he has not proposed any specific regulatory framework or approach for them. He has also indicated that some stablecoins may be securities, while others may be commodities or hybrid instruments that fall under both the SEC and the CFTC’s jurisdiction.
Stablecoins are digital assets that are designed to maintain a stable value relative to another asset, such as a fiat currency, a commodity, or a basket of assets. They are often used as a medium of exchange, a store of value, or a unit of account in the crypto space. They are also used as a bridge between different blockchains or platforms. There are different types of stablecoins, such as fiat-backed, crypto-backed, algorithmic, or hybrid.
Gensler’s position is based on his assessment of the risks and challenges posed by stablecoins to the financial system. He has highlighted the issues of transparency, accountability, governance, liquidity, solvency, market integrity, consumer protection, and systemic stability that arise from stablecoins. He has also warned about the potential for stablecoins to facilitate illicit activities, such as money laundering, tax evasion, and terrorist financing.
His perspective is shared by other regulators and policymakers who have also expressed concerns about stablecoins and their implications for the financial system. The Financial Stability Board (FSB), an international body that monitors and makes recommendations about the global financial system, has issued a report on stablecoins that outlines 10 high-level recommendations for their regulation and oversight. The President’s Working Group on Financial Markets (PWG), a group of senior U.S. officials that advises the president on financial matters, has also issued a statement on stablecoins that calls for a comprehensive regulatory framework for them.
However, Gensler’s view is not yet translated into any concrete action or proposal. He has stated that he is working with his fellow regulators at the CFTC, the Federal Reserve, the Treasury Department, and other agencies to address the issues raised by stablecoins. He has also stated that he is open to engaging with Congress and the industry to develop a clear and consistent regulatory regime for stablecoins.
Gensler’s Implications for the Crypto Industry and the Investors
Gensler’s stance on Bitcoin, other cryptocurrencies, and stablecoins has significant implications for the crypto industry and the investors. Depending on how he implements his vision and how the industry responds, his stance could have positive or negative effects on the innovation, growth, and adoption of the crypto space.
On the positive side, Gensler’s stance could provide more clarity, certainty, and legitimacy for the crypto industry and the investors. By applying the existing laws and rules to the crypto space, Gensler could create a level playing field for all market participants and foster fair competition and cooperation. By enforcing compliance and accountability it could enhance investor protection and market integrity and reduce fraud and manipulation. By engaging with Congress and the industry, he could further develop a comprehensive and consistent regulatory framework for the crypto space that balances innovation and regulation.
On the negative side, Gensler’s stance could also pose more challenges, costs, and barriers for the crypto industry and the investors. By asserting the SEC’s jurisdiction and mandate over a large segment of the crypto space, Gensler could create more confusion, uncertainty, and conflict among different regulators and jurisdictions. By imposing registration and reporting requirements, Gensler could increase the regulatory burden and complexity for the crypto projects and platforms. By initiating enforcement actions and litigation, Gensler could deter innovation and investment in the crypto space.
Conclusion
In conclusion, Gensler’s stance on Bitcoin, other cryptocurrencies, and stablecoins is a reflection of his background, philosophy, and intentions as the SEC chair. He is a crypto-friendly but also crypto-savvy regulator who understands the potential benefits and risks of the nascent industry. He is also a pragmatic but principled regulator who believes in applying the existing laws and rules to the crypto space consistently and fairly.
It is important to note that his stance has significant implications for the crypto industry and the investors. It could provide more clarity, certainty, and legitimacy for the crypto space, but it could also pose more challenges, costs, and barriers for the crypto space. The ultimate outcome of his stance will depend on how he implements his vision and how the industry responds to his actions.
Source: https://www.securities.io/gary-gensler-crypto-perspective-why-bitcoin-is-not-a-security-but-refuses-to-say-its-a-commodity/
Anndy Lian is an early blockchain adopter and experienced serial entrepreneur who is known for his work in the government sector. He is a best selling book author- “NFT: From Zero to Hero” and “Blockchain Revolution 2030”.
Currently, he is appointed as the Chief Digital Advisor at Mongolia Productivity Organization, championing national digitization. Prior to his current appointments, he was the Chairman of BigONE Exchange, a global top 30 ranked crypto spot exchange and was also the Advisory Board Member for Hyundai DAC, the blockchain arm of South Korea’s largest car manufacturer Hyundai Motor Group. Lian played a pivotal role as the Blockchain Advisor for Asian Productivity Organisation (APO), an intergovernmental organization committed to improving productivity in the Asia-Pacific region.
An avid supporter of incubating start-ups, Anndy has also been a private investor for the past eight years. With a growth investment mindset, Anndy strategically demonstrates this in the companies he chooses to be involved with. He believes that what he is doing through blockchain technology currently will revolutionise and redefine traditional businesses. He also believes that the blockchain industry has to be “redecentralised”.
