Gary Gensler, We’re Gonna Miss You (Not)

Gary Gensler, We’re Gonna Miss You (Not)

The SEC Chair’s comments on crypto Wednesday did nothing to encourage anyone in the industry to believe he should continue in his position past this year. 

SEC Chair Gary Gensler took to a stage at NYU School of Law in Manhattan on Wednesday and his comments had the air of someone who’s finally ready to say what he thinks. (My colleague Cheyenne Ligon had the report.)

His comments on crypto were expansive, sometimes quite wrong, and thoroughly damning to the industry’s prospects.

Gensler, like Alan Greenspan at the Fed back in the day, isn’t usually given to free-ranging answers. He’s a cautious technocrat. Wednesday was different.

He said cryptocurrencies, like bitcoin and ether, are unlikely to be used for payments.

“I did teach this stuff up at MIT and so forth, so I'm just going say this – these debates literally go back to Plato and Aristotle," he said. "This is 3,000 years of history. Hundreds of great nations, thousands of nation-states – we tend to have one currency per geographic economic state. We tend even not to have bimetallism."

In other words, Gensler believes that nation-states control money and that economies do better when there’s only one nation-issued currency. While this might be true, it’s quite a statement from an SEC chair. He’s showing that he’s not guided by what might be possible, or even better in the future; he’s guided by the past, including ancient history, at a time when we didn’t have electricity, let alone the internet.

Gensler said the crypto industry has produced "a lot of fraudsters, a lot of grifters, a lot of scams," which is self-evidently true. But then he followed up with the statement: "With all respect, the leading lights of this field in [2024] are either in jail or awaiting extradition right now." That’s not true at all. We can disagree about how to define “leading lights” but even after all the enforcement actions from the SEC, most industry leaders are free and building like crazy. CZ is out. Vitalik Buterin is incubating his World Computer. Coinbase’s Brian Armstrong just got married.

Of course, SBF and several other 2022-era fraudsters are behind bars. But few people in crypto look to SBF as a leading light these days.

On the most important questions of all – Are tokens securities? and do token issuances represent investment contracts? – Gensler offered no hope that regulators might interpret laws to meet new technological and market conditions, or push for new ones. He said the Howey Test, enshrined by the Supreme Court in 1940, still sufficed.

"If anybody is wondering whether [they] might meet this time-tested test of what is an investment contract … think about it this way, who is signing the engagement letter with your law firm? There's a central enterprise, somebody is signing that engagement letter. Who is tapping on the door of the broker-dealer saying, 'Can you make a market in my particular asset?' It belies logic that there's no common enterprise at most," Gensler said.

Gensler managed to achieve something hard yesterday: he was relatively expansive in his thinking on crypto but offered no clarity for anyone trying to build crypto in the United States, other than to say “look at laws made 80 years ago.”