It’s preposterous. There’s no problem that’s getting addressed with this solution, this is a solution in search of some problem.
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Securities and Exchange Commission and Related Agencies
DIGITAL ASSETS
Both the SEC and the CFTC have been irresponsible actors in the digital asset area. They have had more than a decade to promulgate rules governing digital assets, yet the SEC has utterly failed to do so, and the CFTC has provided only minimal guidance. Instead, both agencies have chosen regulation by enforcement—and have done it poorly. They neither adequately protect investors nor provide responsible market participants with the regulatory environment that they need to thrive.
The SEC and CFTC should clarify the treatment of digital assets (coins or tokens). Specifically, they should:
• Promulgate a joint regulation providing that a holder of digital assets may not be deemed a party to an investment contract or an investor ina common enterprise unless, while the enterprise is a going concern, the holder is entitled to a share of the earnings or profits of the common enterprise or a defined flow of payments from the common enterprise in consideration of the investment or unless, upon liquidation, the holder has rights against the assets of the common enterprise. Otherwise, the digital asset shall be deemed a commodity to be regulated by the CFTC, not the SEC.
• Amend the definition of commodity to include digital assets that are not a security as so defined and amend the definition of security to make it clear that a certificate (digital, electronic, or otherwise) that represents ownership of commodities and is convertible into a physical commodity on demand is not a security but a commodity.
In the absence of regulatory action, Congress should enact legislation that achieves these goals.
IMPROVED REGULATION OF THE INDUSTRY AND SROS
Congress and the SEC need to conduct more robust oversight of self-regulatory organizations, and SROs need to be reformed; otherwise, as discussed above, SRO regulatory functions should be merged into the SEC. The SEC, FINRA itself, or Congress should:
• Inthe absence of merging FINRA into the SEC as recommended, require that:
1. FINRA’s Board of Governors meetings be open to the public unless the board votes to meet in executive session.