A highlight from 682:SECs Power Struggle: Congress, ETF Delays, and a Pivotal Hearing


Good evening, and welcome to The Crypto Overnight -er. I'm Nick Ademus, and I will be your host as we take a look at the latest cryptocurrency news and analysis. So sit back, relax, and let's get started. And remember, none of this is financial advice. And it's 10 p .m. Pacific on Wednesday, September 27th, 2023. Welcome back to The Crypto Overnight -er, where we have no sponsors, no hidden agendas, and no BS. But we do have the news, so let's talk about that. Tonight, we're diving into the SEC's ongoing tango with the crypto industry. From Gary Gensler's controversial stance ahead of a congressional hearing to the SEC's foot dragging on Bitcoin ETF approvals, the regulatory landscape is becoming a battleground. And don't think Congress is sitting idle. They're stepping into the ring, demanding answers and action from the SEC. Buckle up, it's going to be a rollercoaster of a night. US Securities Exchange Commission Chair Gary Gensler has been vocal, and his recent statements ahead of a congressional hearing are stirring the pot. Gensler testified in front of the House Financial Services Committee, and we're going to get to his testimony in a bit. He's holding fast to his stance that most cryptocurrencies and crypto firms fall under federal securities laws, laws that, mind you, have been on the books for decades, according to his testimony. Gensler's view is a direct challenge to the crypto industry's ethos of decentralization and financial freedom. He likens the current state of the crypto market to the 1920s, before federal securities laws were in place. A comparison that's not just a stretch, but a leap back in time, ignoring the innovative nature of blockchain technology. Again, during his testimony today, he reiterated his belief that Bitcoin is not a security. He stopped short of saying that Bitcoin is a commodity. When he was asked if he believes that Bitcoin is a security, Gensler responded that he, the SEC staff, and prior chairs have said that it does not meet the Howey Test. However, he was reluctant to say that Bitcoin was a commodity during a follow -up question. When talking about Bitcoin's categorization, he said, quote, the test is otherwise for other laws. Again, refusing to answer the question. Gensler is not without his critics. Patrick McHenry is the chair of the House Financial Services Committee. He was the one asking questions about Bitcoin and receiving non -answers in return. McHenry accused Gensler of lacking clarity, and McHenry's point is valid. How can you punish digital asset firms for not adhering to laws when it's unclear if those laws even apply? It's like being ticketed for speeding when there are no speed limit signs. On the other side of the aisle, some Democrats like Maxine Waters are siding with Gensler. They believe that existing securities laws can work for crypto firms, but let's be real. This isn't just about regulation. It's about control. The government wants a piece of the crypto pie and they're using outdated laws to stake their claim. The House Financial Services Committee has advanced two bills. One aims to transition a digital asset from being a security to a commodity. The other looks to regulate stable coins. Both are clear indicators that lawmakers are scrambling to catch up with an industry that's already miles ahead. While Gensler was testifying, crypto entrepreneurs were in Washington for Coinbase's Stand With Crypto Day. They met with lawmakers and discussed how crypto is creating jobs. It's a counter narrative that needs to be heard, especially when the SEC is painting the industry as the Wild West. The SEC, under Gensler's leadership, is pushing for crypto compliance based on antiquated laws. That not only stifles innovation, but also contradicts the very principles that make crypto a beacon of financial freedom. And as the government tries to rein in the crypto world, the industry is fighting back, making it clear that they will not be easily tamed. Gensler's testimony is a pivotal moment for the crypto industry. His unwavering stance that most cryptocurrencies should be regulated as securities is a red flag. It's a philosophical clash with the ethos of decentralization that many in the crypto community hold dear. Gensler's comparison of today's crypto landscape to the 1920s is a thinly veiled warning. He's essentially saying that the crypto industry is a Wild West that needs taming. Now let's not forget, the crypto industry isn't Wall Street. It's a new frontier with its own set of rules and innovations. But Henry's criticism of Gensler is noteworthy. It reflects the frustration that many feel about the SEC's unclear guidelines. How can crypto firms comply with laws that aren't explicitly defined for them? It's like being asked to read a book, but the pages are blank. The advanced bills are a mixed bag. While they offer some regulatory clarity, they also paved the way for more governmental oversight, which could stifle innovation. As we unpack the SEC's heavy handed approach, it's clear that the regulatory web around cryptocurrencies is tightening. Gensler's testimony is sure to fan the flames of the ongoing debate on governmental control versus financial freedom. But folks, this isn't the only arena where the SEC is flexing its muscles. The SEC's recent move to extend deadlines for Bitcoin ETF applications from ARK21 shares and GlobalX is emblematic of the same regulatory hesitance. It's a systemic issue. The SEC's rationale, market manipulation and weak investor protections. But as many of you know, the real crux of the matter is control. The same control that the government is keen on exerting over the broader crypto space. And let's not overlook the timing here. While Gensler prepares to defend his stance in Congress, the SEC is simultaneously delaying decisions on Bitcoin ETFs. And why? All under the shadow of a looming government shutdown, adding another layer of complexity to this regulatory maze. And it's not just individual critics or lawmakers putting the SEC under the microscope, it's the entire crypto industry who is watching and waiting. Which brings us to the SEC's recent move to extend deadlines for Bitcoin ETF applications from ARK21 shares and GlobalX. Another chapter in the ongoing saga of regulatory hesitance and it's happening as the US government teeters on the brink of a shutdown. ARK21 shares and GlobalX had their hopes dashed when the SEC pushed back its decision deadlines. ARK's new deadline is January 10th, while GlobalX has until November 21st. This isn't the SEC's first radio. They've got 240 days to make a call after starting a review. But this time they've acted well before their interim deadlines. Why the rush? That looming government shutdown might be the culprit. ARK Investment Management and 21 shares have been in the game since 2021. They faced SEC rejections before. GlobalX is a newer player. They aim to offer investors a safer way to get Bitcoin exposure, but the SEC isn't biting. True to form, they cite market manipulation and weak investor protections as the reasons for their reluctance. Now, a federal court recently called the SEC arbitrary and capricious in its ETF decisions. Despite this, the SEC is continuing to drag its feet. ARK's CEO, Cathie Wood, expected this delay. She believes the SEC will approve multiple Bitcoin ETFs at once, if at all. Meanwhile, the SEC is also reviewing applications from big names like BlackRock, Fidelity, VanEck, and Invesco. ARK21 shares was leading the pack, but now it's anyone's game. The SEC's hesitance is a sign of the regulatory uncertainty that's stifling innovation in the crypto space. And as the government faces a potential shutdown, this regulatory limbo could extend even further. So really, this shutdown could not have come at a worse time. But shutdown or no shutdown, the SEC has been dragging its feet on crypto for years. So let's be real. This is less about protecting the investor and more about maintaining control over a financial system that's rapidly evolving without them. The recent court ruling that called the SEC's past decisions arbitrary and capricious is a signal that their time of unchallenged authority is coming to an end. Cathie Wood expects more than one Bitcoin ETF to get approved eventually, and she's probably right. The SEC can't hold back this tide forever. And they need to be careful because first mover status brings a huge advantage in this kind of market. The delay might be frustrating, but it's also a sign that the SEC is feeling the heat. They're running out of excuses and with each delay, they're losing more credibility. So while we wait for the SEC to make up its mind, the crypto community gets stronger and the traditional financial system gets a little more nervous. The clock is ticking and it's not in the SEC's favor. While the SEC continues to drag its feet on Bitcoin ETF approvals, citing concerns that many in the industry see as smokescreens for control, it's not just the investors and financial firms that are losing patience. The political arena is starting to bubble with dissatisfaction and it's coming from both sides of the aisle. In fact, recent court rulings and bipartisan demands indicate that the SEC's longstanding resistance to crypto innovation is reaching a tipping point. Lawmakers have decided they've had enough of the SEC's hesitation and are now stepping into the ring guns blazing. And trust me, they're not missing words. A bipartisan group of lawmakers urged Gensler to approve the listing of spot Bitcoin ETFs immediately. This comes after that court ruling we were talking about involving Grayscale Investments. Grayscale secured a win when three judges in the US Court of Appeal ruled that the SEC had to re -review its bid for a spot Bitcoin ETF. This was after Grayscale sued the SEC for rejecting its proposal. This exposed the SEC's double standard. The court specifically addressed the SEC's differential treatment of spot Bitcoin ETFs in similar funds based on futures contracts. The lawmakers argued that a spot Bitcoin ETF is indistinguishable from a futures Bitcoin ETF. The lawmakers in question are representatives Mike Flood, Tom Emmer, Richie Torres, and Wiley Nickel. They argued that a regulated spot Bitcoin ETF would increase investor protection by making access to Bitcoin more transparent and safer. They sent a letter to Gensler, stating that Congress has a duty to ensure that the SEC approves investment products that meet requirements set out by Congress. During Gensler's testimony today, McHenry did not mince words. He called out Gensler's lack of responsiveness as unacceptable, which is funny because the SEC, the very agency tasked with enforcing transparency, is itself under fire for being opaque. The irony is palpable. McHenry's frustration isn't isolated. It's part of a broader sentiment that's been building up for months. The SEC has been aggressive in its enforcement actions against various crypto entities. Yet it's the same agency that oversaw one of the largest financial crimes in U .S. history, and within the crypto industry, no less. Congress wants answers, and they want them now. They specifically targeted Gensler's communications with FTX. McHenry said, quote, "'You refuse to be transparent with Congress regarding your interaction with FTX and San Bankman Free.'" Now, this is crucial. FTX was a major player in the crypto space, and any interactions between it and the SEC could have far -reaching implications. I remember back then that people were accusing SBF of setting things up with the SEC to be more favorable to FTX than the competition. McHenry revealed that the committee made multiple requests for documents from the SEC. Seven months pass, they've received zilch. Not one single non -public document. McHenry's patience is wearing thin, and he's made it clear that the SEC is not above the law. McHenry is calling for a path forward, one where the SEC is responsive to congressional requests. If not, they're looking at the first congressional subpoena issued to the SEC. This showdown is a reflection of the growing distrust between regulatory bodies and those who hold them accountable. And let's not forget, this is happening in the backdrop of a crypto industry that's already skeptical of centralized authority. McHenry's ultimatum to Gensler is a significant moment. It's a challenge to the SEC's authority and a call for greater transparency in an industry that values it above all else. The ball is in Gensler's court. Will he play or will he forfeit? Either way, the crypto community will be watching closely. The SEC has been all too eager to slap lawsuits on crypto companies. Yet when it comes to their own dealings with FTX, one of the industry's major players, they're as tight -lipped as a sealed vault. What are they hiding and why is it taking a congressional threat of a subpoena to get some answers? McHenry's frustration is palpable and frankly justified. The SEC is supposed to be accountable to Congress and by extension, the American people. Their lack of responsiveness is not just unacceptable, as McHenry puts it, it's a breach of public trust. And let's not forget the irony here. The SEC, which has been so keen on enforcing transparency in the crypto world, is itself becoming opaque. This isn't just hypocrisy, it's a red flag. If the SEC can't be transparent about its interactions with FTX, how can we trust them to regulate an industry that's all about decentralization and transparency? The bipartisan push for immediate approval of Spot Bitcoin ETFs is a significant development. It's not just a win for the crypto community, but it's also a slap in the face for the SEC. The agency's inconsistent stance on Bitcoin ETFs has long been a point of contention. The court ruling in favor of Grayscale adds legal weight to the argument that the SEC's current position is, in fact, untenable. What's even more intriguing is the bipartisan nature of this push. In an era where political divisions run deep, the united front from both sides of the aisle speaks volumes. It suggests that the benefits of a regulated Bitcoin ETF, increased transparency and investor protection, are universally acknowledged. As I have long said, if crypto becomes a left versus right issue, both sides will lose. So it's good to see the left and the right working together on something for once. The SEC's reluctance to greenlight Spot Bitcoin ETFs is a blockade on financial innovation. This is especially glaring when you consider that futures -based Bitcoin ETFs have already received a nod. This differential treatment is not only consistent, but also discriminatory. Gensler's oversight hearing was a pivotal moment. The lawmakers are not just asking for explanations, they're demanding action. And given the court's ruling and the mounting pressure from Congress, the SEC might finally have to yield. This is not just about one type of financial product. It's about the broader acceptance of cryptocurrency in the financial ecosystem. A Spot Bitcoin ETF could serve as a gateway for mainstream investors, making it easier for them to enter the crypto market. And let's not forget, easier access means more capital inflow, which could significantly impact Bitcoin's value, and by extension, the entire crypto market. So what happened? In the showdown between Gary Gensler and Patrick McHenry at the House Financial Services Committee, the SEC's stand on regulating most cryptocurrencies as securities collided head on with the crypto industry's ethos of decentralization. Gensler likened the crypto landscape to the 1920s, a comparison met with skepticism and criticism. The SEC extended deadlines for Bitcoin ETF applications from ARK21 shares and GlobalEx, citing market manipulation and investor protection. But let's call it what it is, another play for control. And this comes amid a looming government shutdown, adding another layer to an already complex regulatory landscape. A bipartisan group of lawmakers is pushing back against the SEC's hesitance on approving Spot Bitcoin ETFs. This comes hot on the heels of a court ruling in favor of grayscale investments, adding legal weight to the frustrations with the SEC's inconsistent policies. Lastly, McHenry's calls for transparency in the SEC's dealings with FTX and other crypto entities culminate in a broader sentiment of distrust. He made it clear that the SEC's lack of responsiveness is unacceptable and even threatened the congressional subpoena. The overarching theme tonight is the intensing struggle for control and clarity between the SEC and the crypto world. On the one hand, the SEC is holding fast to ancient regulations that don't align with the ethos of the crypto industry. On the other, Congress and the courts are increasingly pushing back, demanding answers and more rational policies. This power struggle is affecting everything from how digital assets are classified to the approval of new financial products like Bitcoin ETFs. This regulatory tussle dictates the rules of the game, affecting your investments, your financial freedom and the future of the crypto industry itself. The struggle is far from over and each move has consequences that resonate throughout the crypto community. As we wrap tonight, it's clear that we're at a crossroads. The decisions being made by these institutions will either open new doors for the crypto industry or erect walls that stifle innovation and financial freedom. What's certain is that Congress is paying close attention to Gensler and exerting pressure on him to act soon, for better or worse. And that's going to do it for us tonight. I want to thank you, my listeners, because when you stop listening, I will stop talking. If you enjoyed tonight's show, then please like, follow, subscribe, leave a rating or maybe a review. And in the meantime, we'll see you tomorrow night. See you next time.

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