SEC Chairman Gary Gensler faced criticism during yesterday’s congressional hearing over the agency’s approach to regulating cryptocurrencies, despite omitting any mention of digital assets in his written testimony. Lawmakers and SEC commissioners questioned the effectiveness and clarity of current strategies, highlighting concerns about “regulation by enforcement” and the lack of explicit guidance.
Patrick McHenry, chairman of the House Financial Services Committee, noted that the House passed the FIT 21 Act to establish clear rules and robust consumer protections in the digital asset ecosystem. “More than two-thirds of the House of Representatives, including 71 Democrats, rejected Chairman Gensler’s approach to digital assets by supporting clarity and consumer protections,” McHenry said during the hearing.
The definition of decentralization in the FIT 21 Act was a point of contention. Some lawmakers wondered whether setting a 20% ownership threshold and allowing anonymous, self-hosted wallets could hinder enforcement efforts and regulatory oversight.
Commissioner Hester Peirce criticized the SEC’s reliance on enforcement actions without providing clear regulatory guidance. “It’s a very bad approach to regulate an industry if you’re trying to protect investors,” Peirce said. She emphasized that this method is inefficient, leaving market participants uncertain about the SEC’s authority and compliance limits.
Commissioner Mark Uyeda reiterated the need for the SEC to articulate how existing securities laws apply to digital assets. “For example, specifically in the context of crypto and digital assets, the Commission could have articulated how to apply this test,” Uyeda noted, referring to the Howey test used to determine whether an asset qualifies as a security.
Despite this criticism, Gensler continued to maintain that current laws regarding digital assets are sufficient and explicit. Gensler claimed:
“Regardless of where someone stores their ledger when tokenizing a security – a stock, a bond or an investment contract – it is important to ensure that the investors and the investing public have the disclosures they need.”
He argued that tokenization does not change the fundamental economics of an asset as a security.
Concerns were also raised about the influence of celebrity promotions and potential ‘pump and dump’ schemes in the crypto space. Representative Bill Foster questioned whether the SEC has sufficient authority to address issues where influencers promote investments without disclosing compensation. “I have heard concerns from industry participants about influencers, bloggers, celebrities and others using their celebrity status to promote investments without disclosing that they are in fact being paid to do so,” Foster said.
Gensler responded by saying:
“I would say I think the laws are strong. I mean, there are always gaps in resources and we average 40 to 50,000 tips, complaints and referrals per year. That’s, uh, what, 4,000 a month or so.
And we must prioritize those tips, complaints and referrals.”
The The disconnect between the SEC’s current regulatory approach to cryptocurrencies and the desire for more precise guidance became clear during the hearing. While some commissioners believe that regulatory definitions from Congress are necessary, others argue that the SEC could more effectively use its existing authority to provide clarity to the crypto industry.
The SEC’s written and oral testimony focused on topics including cybersecurity incidents, conflicts of interest in securitization markets, and improvements to public reporting and data transparency. However, the agency’s omission of direct references to cryptocurrencies in its testimony highlights the tension between its priorities and the concerns of lawmakers and industry participants seeking regulatory clarity in the rapidly evolving digital asset landscape.
The call for clear rules of the road and robust consumer protection remains an urgent issue, with stakeholders calling for a regulatory framework that promotes innovation while protecting the interests of investors.
