Mr. Chair, I yield myself such time as I may consume. Mr. Chair, I rise in strong opposition to H.R. 4763, which I am calling the not fit for purpose act. This bill would deregulate a substantial…
Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, I rise in strong opposition to H.R. 4763, which I am calling the not fit for purpose act.
This bill would deregulate a substantial portion of the crypto industry, taking them out of the purview of the Securities and Exchange Commission, or SEC. It would allow them to operate either under a lighter touch regulatory regime under the Commodity Futures Trading Commission or in what I have called a regulatory no-man's-land, with no primary regulator and virtually no regulations. For crypto that would remain under the SEC's purview, this bill still provides major exemptions from critical securities laws.
If this wasn't bad enough, this bill is not just about crypto. Language was added to the bill after it was marked up by the committees of jurisdiction that would allow even some traditional securities to also exist in this regulatory no-man's-land.
Specifically, I am referring to title II of the bill that defines the term ``investment contract asset.'' Assets that fall under this definition are explicitly deemed not to be securities and, therefore, not under the SEC's purview, but the bill doesn't provide an alternative legal framework for these assets.
This represents an extreme MAGA, libertarian approach where companies can operate without regulatory scrutiny, and consumers and investors are on their own in detecting and avoiding fraudulent schemes.
While Republican defenders of this bill have argued that this definition of investment contract asset is limited to digital assets under the bill, this is disputed by legal experts and SEC Chair Gary Gensler himself, who confirmed in a recent statement regarding this bill that it would have a broader impact on traditional securities.
Interestingly, I didn't hear any arguments from the Republicans at the Rules Committee hearing disputing that this would, in fact, be a regulatory no-man's-land, even if they insist it is just for crypto.
Even for crypto that would be transferred over to the CFTC, I have serious concerns about the loss of protections for consumers and investors. The CFTC is generally designed to deal with sophisticated institutional investors and traders. It doesn't have the same kind of protections that the SEC has for retail investors and consumers.
Under all three avenues provided for crypto under this bill: The CFTC's lighter touch regulatory regime, SEC's weaker regulatory regime for restricted digital assets, or the regulatory no-man's-land, these are just a few examples of protections that would be stripped away: the right of an investor to sue, gone; protections against conflicts of interest, gone; the right to critical disclosures that help investors make informed choices, gone; and enforcement by States against fraud; and enforcement by the SEC for all of the above protections, including antifraud.
H.R. 4763 would also upend more than 170 enforcement cases the SEC has brought related to crypto violations. These actions have been brought by both Democratic and Republican administrations to protect investors against crypto bad actors.
The SEC is the Federal agency on the front lines of enforcing our existing securities laws on crypto firms that have willfully chosen to ignore the law and defrauded consumers out of billions of dollars with these get-rich-quick schemes. Giving this industry a free pass to avoid most all regulations cannot be the answer to the serious concerns that Members have raised about crypto fraud.
I have seen many efforts by Republicans, acting at the behest of the industry to pass deregulatory regulation, but this is perhaps the worst, most harmful proposal I have seen in a long time. This bill would deregulate crypto and certain traditional securities to the extent that I and other experts have expressed serious concerns about this bill causing a potential market crash and recession.
I am also reminded of how, over the warnings of regulators, Congress moved to deregulate the over-the-counter derivatives. Remember the derivatives market back in 2000? The resulting financial crisis triggered the implosion of financial institutions, a wave of foreclosures, and trillions of dollars in lost wealth.
Mr. Chair, I urge my colleagues not to forget. They should not repeat history with this bill.
The Biden administration has released a Statement of Administration Policy opposing this bill. The bill is also opposed by a long list of investors and consumer advocates, State securities administrators concerned about State preemption, labor organizations worried about the retirement funds of their members, environmental groups concerned about the undisclosed risk of crypto mining, civic organizations worried about the undue influence of the financial and crypto industry over Congress' actions, academics, legal experts, and technologists.
Mr. Chair, I urge my colleagues to stand up and to not be afraid of Big Crypto, to stand up for everyday investors and consumers.
Mr. Chair, I urge my colleagues to vote ``no'' on this bill, and I reserve the balance of my time.
Mr. Chairman, I yield 3 minutes to the gentleman from Massachusetts (Mr. Lynch), who is also the ranking member of the Subcommittee on Digital Assets, Financial Technology and Inclusion.
Mr. Chairman, I yield 4 minutes to the gentleman from Illinois (Mr. Casten).
Mr. Chair, I yield an additional 30 seconds to the gentleman from Illinois.
Mr. Chair, I yield myself such time as I may consume.
It is no mystery why the crypto industry prefers to be regulated by the CFTC rather than the SEC. Let's start with the substantial differences in funding and staff for the CFTC compared to SEC.
In 2023, the CFTC employed roughly 680 full-time employees with an annual budget of $365 million. Wow. The Securities and Exchange Commission, the SEC, employed over 4,500 employees and had a budget of over $2 billion.
Even with the limited funding provided to the CFTC under this bill, which is capped at $40 million and set to expire after 4 years, the CFTC's funding would be only one-fifth of the SEC's budget. Mr. Chair, $40 billion is not sufficient to oversee more than 16,000 cryptocurrencies.
Let's not forget that the same Republicans who are bringing this bill to the floor are the same ones who proposed cutting CFTC's budget last year. Moreover, the CFTC is designed to deal mostly with sophisticated institutional investors and traders rather than retail investors and consumers. Therefore, the CFTC does not have the same level of protections for retail investors and consumers.
Mr. Chair, I would simply say that we should look at this example. The CFTC has no mandate like the SEC that requires entities to act in the best interests of the investors or to put their clients' interests first. This is just another reason why I am very concerned about the light-touch regulatory regime under the CFTC.
Mr. Chair, I yield 5 minutes to the gentleman from California (Mr. Sherman), who is also the ranking member of the Subcommittee on Capital Markets.
Mr. Chair, I yield an additional 30 seconds to the gentleman from California.
Mr. Chair, I yield 4 minutes to the gentleman from Illinois (Mr. Foster), who is the ranking member of the Subcommittee on Financial Institutions and Monetary Policy.
Mr. Chair, I reserve the balance of my time.
Mr. Chair, I continue to reserve the balance of my time.
Mr. Chair, I include in the Record the following statements:
The Statement of Administration Policy from the Biden administration opposing this bill;
The statement from SEC Chair Gensler raising serious concerns about this bill;
A letter from the Treasury Department to me, dated July 20, 2023, expressing serious concerns about this bill;
A letter from the North American Securities Administrators Association opposing this bill; and
A letter from 48 stakeholders opposing this bill.
Statement of Administration Policy
H.R. 4763--Financial Innovation and Technology for the 21st Century
Act--Rep. Thompson, R-PA, and 11 cosponsors
The Administration opposes passage of H.R. 4763, which
would affect the regulatory structure for digital assets in
the United States. The Administration is eager to work with
Congress to ensure a comprehensive and balanced regulatory
framework for digital assets, building on existing
authorities, which will promote the responsible development
of digital assets and payment innovation and help reinforce
United States leadership in the global financial system. H.R.
4763 in its current form lacks sufficient protections for
consumers and investors who engage in certain digital asset
transactions. The Administration looks forward to continued
collaboration with Congress on developing legislation for
digital assets that includes adequate guardrails for
consumers and investors while creating the conditions needed
for innovation, and further time will be needed for such
collaboration.
Mr. Chair, I also include an excerpt from Coinbase's Form S-1 filing acknowledging the risk that Coinbase could be found to be illegally acting outside of securities laws, excerpts from the SEC's complaint against Coinbase alleging that Coinbase was illegally acting outside of securities laws; and a summary of, and key excerpt from, the decision in the case of SEC v. Coinbase, finding that Coinbase was indeed acting illegally by failing to comply with existing laws.
SEC v. Coinbase
Excerpt from Coinbase S-1 Filing on ``Risk Factors''
As indicated in the above complaint, in its Form S-1 filing
with the SEC Coinbase acknowledged the risks that the crypto
assets it makes available on its platform could be deemed
securities, and therefore Coinbase could be found to be
engaging in unregistered brokerage, exchange, and/or
clearing-agency activity:
``A particular crypto asset's status as a ``security'' in
any relevant jurisdiction is subject to a high degree of
uncertainty and if we are unable to properly characterize a
crypto asset, we may be subject to regulatory scrutiny,
investigations, fines, and other penalties, which may
adversely affect our business, operating results, and
financial condition. The SEC and its staff have taken the
position that certain crypto assets fall within the
definition of a ``security'' under the U.S. federal
securities laws. The legal test for determining whether any
given crypto asset is a security is a highly complex, fact-
driven analysis that evolves over time, and the outcome is
difficult to predict. The SEC generally does not provide
advance guidance or confirmation on the status of any
particular crypto asset as a security. Furthermore, the SEC's
views in this area have evolved over time and it is difficult
to predict the direction or timing of any continuing
evolution. It is also possible that a change in the governing
administration or the appointment of new SEC commissioners
could substantially impact the views of the SEC and its staff
. . . With respect to all other crypto assets, there is
currently no certainty under the applicable legal test that
such assets are not securities, notwithstanding the
conclusions we may draw based on our risk-based assessment
regarding the likelihood that a particular crypto asset could
be deemed a ``security'' under applicable laws.
The classification of a crypto asset as a security under
applicable law has wide-ranging implications for the
regulatory obligations that flow from the offer, sale,
trading, and clearing of such assets. Persons that effect
transactions in crypto assets that are securities in the
United States may be subject to registration with the SEC as
a ``broker'' or ``dealer.'' Platforms that bring together
purchasers and sellers to trade crypto assets that are
securities in the United States are generally subject to
registration as national securities exchanges, or must
qualify for an exemption, such as by being operated by a
registered broker-dealer as an alternative trading system, or
ATS, in compliance with rules for ATSs. Persons facilitating
clearing and settlement of securities may be subject to
registration with the SEC as a clearing agency.
Summary and excerpt from opinion of the judge from the US District Court for the Southern District of New York, denying Coinbase's Motion
to Dismiss in the case of SEC v. Coinbase
In March 2024, U.S. District Court Judge Katherine Polk
Failla of the Southern District of New York made a
preliminary ruling in the Coinbase case, holding that because
at least some crypto trades on the Coinbase platform met the
longstanding definition of an investment contract, the SEC
can move ahead with claims that Coinbase improperly operated
as a securities exchange, broker and clearing agency. She
also said the SEC adequately alleged that Coinbase sold
unregistered securities through its staking program. In an
84-page opinion, the judge asserted, among other things, that
``the `crypto' nomenclature may be of recent vintage, but the
challenged transactions fall comfortably within the framework
that courts have used to identify securities for nearly
eighty years.''
excerpts from the sec's complaint filed against coinbase in june 2023
``In September 2019, Coinbase released a framework for
analyzing crypto assets that assigned to the crypto asset a
score ranging from 1 to 5, with a score of 1 indicating that
an ``asset has few or no characteristics consistent with
treatment as an investment contract,'' and a score of 5
meaning that an ``asset has many characteristics strongly
consistent with treatment as a security.'' Meanwhile, between
2019 and 2020, Coinbase more than doubled the number of
crypto assets available for trading on its platform, and it
more than doubled that number again in 2021. During this
period, Coinbase made available on its platform crypto assets
with high ``risk'' scores under the CRC framework it had
adopted. In other words, to realize exponential growth of the
Coinbase Platform and boost its own trading profits, Coinbase
made the strategic business decision to add crypto assets to
the Coinbase Platform even where it recognized the crypto
assets had the characteristics of securities.''
Coinbase generates most of its revenue from transaction
fees collected on crypto asset trades made through the
Coinbase Platform, Prime, and Wallet. Fox example, in 2021,
Coinbase generated $6.8 billion in ``transaction revenue,''
out of a total net revenue of $7.4 billion. Likewise, in
2022, Coinbase generated over $2.2 billion in transaction
revenue out of a total net revenue of $3.1 billion.
``Coinbase also worked closely with issuers of crypto
assets who sought to have their crypto assets listed on
Coinbase. Coinbase's ``Listings Team'' engaged in a dialogue
with issuers focused on identifying potential ``roadblocks''
under Howey. For example, on one occasion, Coinbase
identified ``problematic statements'' by an issuer that
described its crypto asset ``with language traditionally
associated with securities,'' ``implying that the asset is an
investment or way to earn profit,'' ``emphasizing the
profitability of a project and/or the historic or potential
appreciation of the value of the assets,'' and ``using terms
referring to the assets that are commonly associated with
securities such as `dividend,' `interest,' `investment' or
`investors.' '' As ``possible mitigation,'' Coinbase
suggested that the issuer ``remove any existing problematic
statements, and refrain from making problematic statements in
the future.'' Coinbase was thus aware of the risk that it
could be making available for trading on the Coinbase
Platform crypto assets that were being offered and sold as
securities. Indeed, Coinbase touted to the investing public
its familiarity with the relevant legal analysis governing
the offer and sale of securities.
Mr. Chair, if the gentleman has no more speakers, I am prepared to close.
Mr. Chair, I yield myself the balance of my time.
Mr. Chair, as we have heard today, the entities that stand to benefit from this bill are not ordinary investors trying to build wealth but rather the crypto firms that have chosen not to register with the SEC or otherwise comply with the securities laws.
They have already made billions of dollars unlawfully issuing or facilitating the buying and selling of crypto securities, and Republicans are now proposing to reward these illegal activities by making these activities legal. This is truly preposterous.
Mr. Lynch, when he spoke, said this was one of the worst pieces of legislation he has experienced during his entire career. I understood why when I examined this bill and I saw that the Republicans created this new definition. This new definition is known as the investment contract assets.
We have talked about this, but even in the Rules Committee, while they were talking about how this bill was going to protect consumers, they did not debate us about this investment contract asset because they know that it created a void. It created a no-man's-land. This was created basically so that the crypto companies could be in a space without regulation, but it goes further than that.
It also covers traditional securities so they can be in a space without regulations.
It is not enough to say this is a bad bill. This is not only a bad bill, this is a bill where the crypto companies decided they didn't like the SEC, they do not want to be regulated, and they were going to come to the Congress of the United States. They were going to use their power, they were going to use their influence to change the rules of the game, and they were going to now go to where the commodities are regulated, and they are going to take the securities over there.
I explained to you that the CFTC is a small agency. I explained to you that they don't have a lot of money. I explained to you how much smaller they are than the SEC.
The SEC are the experts. They have been developing regulations for this country for 90 years. The SEC is 90 years old, and it is respected all over the world. We are the envy of the world because we have an
Mr. Chair, I thank the gentleman from Texas for attempting this amendment. As a matter of fact, there have been any number of Members from this side of the aisle who have been attempting to amend this bill to try and make it better. While I have great respect for all of those attempts, if my friends had listened, if they had accepted, perhaps they could have made this a better bill. Unfortunately, at this point in time, no, with all the work that this gentleman has done, Mr. Casar and others, my friends will not accept any amendments. They are not going to accept his amendment. They don't think that the bill can be made better, and unfortunately, the bill is so bad, I don't think it can be made better either.
Mr. Chair, I claim the time in opposition to the amendment, but I am not opposed to it.
Mr. Chair, while I do not oppose this amendment, I will emphasize that the broad deregulatory nature of the not fit for purpose act is such that it would severely weaken our capital markets and make us more vulnerable to bad actors, both domestic and foreign.
This amendment and the underlying bill do not protect consumers and investors. This amendment only requires a study on whether or not foreign adversaries are operating as digital asset registrants under the bill and collecting data on the U.S. consumer or investors.
We should not just be studying this issue; we should be legislating strong data privacy protections that apply all across the board.
Moreover, if TikTok was the inspiration for this bill, I will note that TikTok is not directly owned by the Chinese Government. The concern was that it was vulnerable to being unduly influenced by the Chinese Communist Party. If a China-based company was operating as a digital asset registrant under this bill, it would not fall within this study unless it was directly owned by the Chinese Communist Party. It would be easy for our adversaries to simply stand up proxy companies that appear to have no direct affiliation with them to evade the scrutiny of the study in the bill.
While I plan to support this amendment, I don't think it provides any meaningful safeguards on consumer privacy and it certainly does nothing to fix the underlying problems of the not fit for purpose act.
Mr. Chair, I reserve the balance of my time.
Mr. Chair, I yield myself such time as I may consume.
The bill's supporters have claimed that this bill is necessary to provide legal clarity as to when a digital asset is considered a security and when it is considered a commodity, but this bill is anything but clear. It is 253 pages of highly convoluted and poorly defined language.
At the Rules Committee hearing yesterday, the Republicans testifying on the panel in defense of the bill could not answer a simple question from a fellow Republican as to whether dogecoin would qualify as a security or a commodity under this bill.
They pointed to their five-part decentralization test in the bill, which is, again, anything but clear. The current test for determining whether something is a security is called the Howey Test. It has stood the test of time, with guidance from the SEC clarifying its application, in addition to decades of case law expounding on how it applies to a variety of different assets. Even the courts have agreed with SEC's interpretation of the Howey Test, classifying digital assets as securities in a strikingly consistent manner.
The five-part decentralization test in this bill has not been tested, and it would create a slew of new litigation trying to decipher how it applies. Instead of a study, we should remember the fact that Members of Congress and legal experts struggling to agree on basic facts about what this bill would do foreshadows the mountains of litigation that this bill would result in to figure that out.
This bill provides the opposite of legal clarity, as the bill supporters claim. Instead, it provides several more convoluted and untested definitions to replace the time-tested Howey Test in place today.
The only thing clear about this 253-page bill is that it results in the substantial deregulation of crypto, just as the crypto industry has asked for.
Mr. Chair, I yield to the gentleman from California (Mr. Sherman).
Mr. Chair, I yield back the balance of my time.
Mr. Chair, I demand a recorded vote.
Madam Chair, I claim the time in opposition.
Madam Chair, under H.R. 4763, crypto that is deemed to be a digital commodity would come under the CFTC's purview, which would include a new explicit authority for the CFTC to regulate crypto spot markets. However, this amendment would ensure that this new authority for the CFTC to regulate crypto spot markets does not include traditional commodity spot markets.
It is already bad enough that this bill would result in mass deregulation of crypto and even some traditional securities, too. This amendment takes the bill to the next level by trying to preemptively block the CFTC to oversee non-crypto spot markets.
The bill's supporters continue to insist that this bill is only about crypto, but it has serious implications for traditional securities. With this amendment, it would now appear to have serious implications for traditional commodities also.
It is wholly unclear why Republicans, who have placed so much faith in the CFTC to police the spot markets of digital commodities, think that this agency is unable to oversee the spot markets of everyday commodities they currently regulate, like oil, wheat, and livestock. Excessive speculation in spot markets of tangible commodities is a real problem that can harm working families' budgets.
For this reason, Democratic CFTC Commissioner Christy Goldsmith Romero has called on the CFTC to study excessive and harmful speculations in the commodities markets. Specifically, she has stated: ``The CFTC has an impressive surveillance program and an equally impressive cadre of commodity markets experts to rely upon as it seeks to understand these pressures of working families, farmers, and producers. We should use them more, and more publicly.'' I agree with her.
Madam Chair, I urge my colleagues to stand up for working families and farmers by leaving the CFTC's existing authority to protect them from speculation in the traditional securities market fully intact.
Madam Chair, I urge my colleagues to vote ``no'' on this amendment, and I reserve the balance of my time.
Madam Chair, at the Rules Committee hearing, Republicans revealed their true intentions with this bill. My friend, Mr. Norman, stated, regarding the investors who were defrauded by FTX:
I blame the investor. I mean, would I get on an airplane
with two wheels missing and one wing? They should have done
their homework.
Representative Austin Scott of Georgia on the Rules Committee doubled down on this kind of victim blaming, saying that he believed we should use a buyer-beware approach.
This is entirely offensive to consumers to simply say that they should have known better than to get defrauded. The very definition of fraud implies that the consumer could not have been expected to know or understand some facet of a contract.
I would venture to say that this bill is even worse than just a buyer-beware approach. This bill creates a facade of regulation that is designed to make ordinary investors and consumers think they are protected and that the investments are safe. In reality, this bill would facilitate and legitimize fraud rather than warning consumers to beware of the risk.
In addition to blaming millions of defrauded investors, Republicans continue to move forward with a bill that exempts the same crypto firms that were unlawfully issuing or facilitating crypto securities, giving them a get-out-of-jail-free card.
This is what Republicans love to do. They blame consumers and investors who have been defrauded while also advancing bills to protect those same firms that are ripping off consumers and investors.
Madam Chair, I reserve the balance of my time.
Madam Chair, I yield the balance of my time to the gentleman from California (Mr. Sherman).
Madam Chair, I demand a recorded vote.
Madam Speaker, I demand a recorded vote.