SEC Commissioner Hester Peirce Lays Out a Bold Seven-Point Plan to Urge Congress to Slash Red Tape

U.S. Securities and Exchange Commission (SEC) Commissioner Hester M. Peirce called on Congress to streamline cryptocurrency oversight and reduce regulatory confusion

The cryptocurrency industry faces a critical juncture as institutions grapple with integrating new technologies into existing legal frameworks.

At the Digital Chamber’s 8th Annual DC Blockchain Summit in Washington D.C. on March 26, U.S. Securities and Exchange Commission (SEC) Commissioner Hester M. Peirce urged Congress to streamline cryptocurrency oversight and reduce regulatory confusion.

Currently spearheading the Crypto Task Force at the SEC—an initiative launched earlier this year to navigate clearer regulatory pathways for the cryptocurrency industry—Peirce highlighted the pressing need for synergy in cryptocurrency regulation.

Highlighting the complexities of multi-agency rulemaking, Commissioner Peirce noted the broad mandates assigned to a diverse set of regulators in cryptocurrency. From the SEC and Commodity Futures Trading Commission (CFTC) to the Financial Crimes Enforcement Network (FinCEN) and state-level bodies, each regulator plays a role in overseeing various aspects of the cryptocurrency market.

However, she pointed out the inefficiencies inherent in this structure. Overlap in regulatory scope across different agencies leads to increased costs for both market participants who must comply with multiple sets of rules and regulators who must coordinate their efforts to avoid duplication.

Further addressing the difficulties in legislating new technologies, Commissioner Peirce observed that the nature of crypto assets adds another layer of complexity. She explained:

The overlap is likely only to get worse because crypto assets can represent anything from cash, to a financial instrument, like a security or a futures contract, to a work of precious art.

To mitigate these challenges and foster a more efficient regulatory landscape, Commissioner Peirce presented seven key recommendations to Congress for streamlining cryptocurrency oversight.

1. Don’t Create a New Agency; Empower Existing Ones

Instead of establishing a new agency to oversee cryptocurrencies, which would likely create additional layers of bureaucracy and slow down the process, Congress should consider empowering existing regulators to take on broader roles in specific areas of crypto regulation. This approach would leverage the experience and expertise of institutions like the SEC, CFTC, and state securities regulators to oversee various aspects of the crypto market in a more focused manner.

2. Limit the Scope of New Statutes

In an effort to avoid overregulation and ensure agility in the fast-moving crypto sector, Congress should keep the scope of new statutes as narrow as possible. For instance, when assigning regulatory authority, the goal should be to limit the scope of new legislation to U.S.-based or U.S.-targeted platforms. This would streamline the regulatory process and prevent it from becoming bogged down in minute details.

3. Provide for Federal Preemption in Areas of Interstate Commerce

To mitigate conflicts between state and federal laws and create a more seamless regulatory environment for crypto platforms operating across state lines, Congress could consider providing for federal preemption in areas of interstate commerce. This would streamline compliance burdens on crypto firms and foster greater cooperation between state and federal regulators.

4. Assign Oversight of Specific Crypto Asset Types to Particular Federal Agencies

In an effort to optimize the regulatory framework, Congress could assign oversight of specific types of crypto assets to particular federal agencies. For instance, those crypto assets that meet the definition of securities could fall under the purview of the SEC, which already has experience in regulating such instruments. Similarly, crypto assets used in commodity futures contracts could be assigned to the CFTC, and those implicating money laundering concerns could be placed under the supervision of FinCEN. This specialized assignment would allow each agency to leverage its existing expertise and experience to regulate specific crypto asset types effectively.

5. Provide Legal Clarity for Trading Various Crypto Assets on Platforms Overseen by Either the SEC or CFTC

To create a clear and comprehensive regulatory framework for crypto trading platforms, Congress could consider an amendment to Section 15 of the Securities Exchange Act of 1934. This amendment would authorize the SEC to register any trading platform that is capable of executing trades but does not hold customer assets. In contrast, the CFTC would oversee platforms that combine both trading and custody functions.

Moreover, to ensure the efficient integration of new technologies into the financial system, Congress could authorize the SEC to register any trading venue that operates more like an Alternative Trading System (ATS) in accordance with Section 11A of the Securities Exchange Act. This would create a flexible and adaptable framework for registering new types of trading venues.

6. Apply the Established Principles of Regulatory Law from Traditional Financial Markets to Crypto

In an effort to streamline the regulatory landscape and avoid placing an undue burden on crypto firms, Congress should consider applying the established principles of regulatory law from traditional financial markets to crypto. This would involve striking a balance between administrative efficiency and the need for robust oversight.

For instance, in cases where a new crypto regulation overlaps with an existing statute but does not add anything new, the existing statute should take precedence to avoid redundancy and administrative burdens. Additionally, in cases of "unfunded mandates," which impose new obligations on private parties without providing the necessary funding, Congress should ensure that the assigned regulator has the capacity to carry out the assigned tasks.

7. Protect the Right of Americans to Peer-