I should make clear though, that you can have a crypto asset that is itself a security. So I think that someday we could see a world in which traditional stocks are tokenized. Well, if you tokenize a traditional stock, it is definitely still a security. You could tokenize a bond similarly, and so people do need to pay attention when they're creating crypto assets.
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You, hey, Tony, it's good to be back. Of course, as you know, have to give my disclaimer, which is that my views are my own views as a commissioner, not necessarily those the SEC or my fellow commissioners.
Yeah, Commissioner, first great hearing this week. We were talking a bit about it before the recording very long, but you and the other four commissioners appeared before the House Financial Services Committee. That was really refreshing to get everyone from the agency as far as commissioners to give their different point of views. How do you feel that hearing went and what were some takeaways for you?
Well, I think you're right, it was about showing different approaches to the job. And I think that's the beauty of a commission. There are five of us, we all have different backgrounds and we bring something different to the job. And I think you saw that earlier this week at the hearing. You know, I think the big takeaways from the perspective of you know from my perspective, or that there's a lot of interest in issues that those issues
did come up a lot. And then I think it's just really healthy to have a dialogue among people who all care about the capital markets, but who approached them differently. I think another theme that ran through the hearing was a real interest in capital formation, which is one part of our mission as an agency. It's a part that hasn't gotten a lot of attention during this past several years, and so I think there was understandably interest from Congress in what we're planning to do in that space.
And now there was a second hearing no as schedule for Wednesday with the Senate folks, but that got rescheduled. If I'm not mistaken, are you anticipating a similar type of hearing with the Senate side?
That hearing, as far as I know, was just with Chagensler, and I don't know why it was rescheduled or when it will be had, when it will be held, So I don't know anything about that one.
Oh okay, so I had my ad the mistaken the information there. I thought all five of the commissioners we're going to appear again.
But it's say, you know more than I do, Commissioner person.
I would love to get your take on what we're seeing kind of a along the lines of what you were mentioning this shift, and I like to call it the Overton Windows shifting for crypto politically, where we're seeing democrats or working with their colleagues on the Republican side to help get crypto legislation through, and you have these
hearings where it's now both Democrat and Republican voices. Do you feel we were hitting the tipping point of mass awareness, so to speak, mass adoption and everyone needs to pay attention now to this industry.
I mean, I've been thinking about these issues for a long time, and it definitely seems that they're much more top of mind for more people now, and so I think that's positive. Although I think one of the reasons at their top of mind for so many people is that this really is an example of how a regulator has mishandled the situation, and so I think that is
what has has pushed this to the top. And I should say, I mean, you know, I focus a lot on the SEC there are a lot of other non SEC crypto issues that have gotten attention as well, But I think if we had sort of done this in a more methodical way, there'd be less attention being paid to crypto right now.
Oh sure, yeah, to your point, it has become sort of political where you have one side now is using it as a campaign item. Right, So it's interesting this election cycle. It's very interesting. If you told me a year ago that crypto would be one of the main themes, or that the crypto industry would be spending the amount of money it is from a campaign donations standpoint, I would not have believed you. It's pretty fascinating what's happening.
The politics out of it, which is not really my expertise, and focusing more on just the regulatory approach. We're spending a lot of time at the SEC thinking about crypto, and a lot of our resources are going toward these
crypto enforcement actions. And one of the themes that I think it's really important for us to think about is kind of what could an alternate reality look like if we were to take a more workmanlike approach to crypto and just say, okay, let's think about areas where we need to be involved, and then think about what does rational involvement look like, what would a rational set of rules look like, and then where could we concentrate our
enforcement resources to do the most good those kinds of things. I think that's really what we should be thinking about. That's not really a political question. That's something that people on all sides of the aisle can get together and think about and think about together and try to figure that out. You might have differences in terms of the role that government should play in those things, but those are the kinds of discussions that you can then have.
Yeah, agreed, So I notice what you mentioned that because the agency did not act sooner or in the right way, it has kind of forced the industry to become a political item where it shouldn't have been. Right. It's just a technology like the Internet.
Yeah, it's a technology, and you know, I think this is another point that I like us to think about, not because you know, we should sit around and say, well, you know, let's imagine what it would would have been like for the sake of imagining what it would have been like, but to think about how can we handle other new technologies that come down the pist. We're seeing artificial intelligence. It's not new, but we're seeing new uses
for it and new iterations of it. And so let's make sure that we don't repeat the same problems when we are confronted with a different technology, and let's try to do a reset in how we think about crypto. But I think one of the problems of us not having done this is that there's been a lot of emphasis.
You know, there's been a lot of retail interest, and I think we have not helped by not having clear lines because it's made it harder for retail folks to sort of distinguish what where there might be there there and where there isn't where it's just a fraud. And so I think better rules will also just be helpful for retail folks, be helpful for us as we think about using our scarce enforcement resources.
Yeah. Absolutely, And I can give some anecdotal evidence on my end as a podcaster. I obviously have a lot of retail folks who watch and listen and again tell you that amount of stories of folks getting into situations where I thought this was legit, but it's actually a scam or you know, how come the sec is not stopping these guys. It's clearly something fishy is happening here.
And then on the building side, I want to launch a dow and have NFTs, but I'm scared, yes, you see, might go after me, even though I'm not trying to launch any type of trading, just have utility NFTs where people can unlock features, get special perks and benefits. But I don't want to be in any legal issues. I'm a small time business owner, right.
So there are a lot of stories like that of people who have an interesting idea for how they might use the technology and they're just kind of holding back.
Because there's this sphere of getting on the wrong side of the securities laws. And I think with respect to you know, it always makes me sad to hear of people who have been taken advantage of by someone a fraudster using crypto to lure people in, and there are a lot of people out there who are trying to
do that, so people have to be very careful. But I think part of the the goal of getting a clearer framework is also so that you know what falls within the SEC's jurisdiction and what might fall within another regulator's jurisdiction. Sometimes, when one of these really bad things happens in the crypto space, unfortunately we can't we can't
get involved because it's not within our jurisdiction. But there may be another federal or state regulator who can get involved, and if the lines are clear, we can then make
a referral over to that other regulator. And so again I think the space would be I mean, there are always going to be people trying to take advantage of other people, and they're going to use whatever the latest thing is, but I think it would be harder for those people to do their bad deeds if we were to have these clear jurisdictional lines.
Absolutely. What are your thoughts on along the lines what we were talking about before we Democrats and Republicans working together, thoughts on the crypto bills, the fit twenty one bill that made it out of the House. There's one in the Senate, the Lumbus Jillibrand Bill. There's talks of trying to get a bill pushed through the Senate by the end of the year, maybe in the lame duck session.
I've seen Republicans and Democrats talk about this. Do you think those legislation would help in putting these lines in place?
Well, as I said at the hearing, I always welcome the input of Congress, and so getting a sense from them where they want those jurisdictional lines to lie would be very helpful for us then to think about how
to spend our resources. So I do welcome it. In terms of the detail tells of those bills, you know, I leave that to people in Congress, though, I think that the SEC should be assisting them with We provide something called technical assistance to Congress when they're working on things, and so we should be stepping up to help them with that.
I want to talk about the term crypto asset securities or digital asset securities. I've heard s againcer and it's been mentioned in different legal documents as well. Recently, there was some folks who are the sec who apologized about this in a finance legal document footnote. Yet it's being used in different places. Where did this term originate from? And it seems to be causing a lot of confusion.
Yeah, well, I don't know where it came from. But Tony, you and I have talked about this topic in the past that there is some legal imprecision and how we've approached this issue. And you know, we've talked about the fact that the Howie test from a case about orange groves, and the orange growths themselves were not the securities. It was the orange groves when paired with this contract to do work related to the orange groves, that turned it
into a securities offering. And so I think in this connection and you have Howie has generated this whole series of cases about casks of whiskey, about different kinds of animals that could be the subject of an investment contract, but it doesn't turn the chinchilla into the actual security.
And so I think some of the linguistic problems are sort of stemming from this wrestling with how does this investment contract idea really manifest itself in the crypto space, And we haven't been precise about that and so I think this is the one symptom of that.
I remember years ago you and I talking about that, and you mentioned you've been speaking to the folks here the agency about viewing this differently, the crypto assets that intrinsically they're not securities. Have you do you feel, you know, there's been some progress made and I know sometimes these things take time and idea and you know, collectively we agree, okay, this is how it should be viewed. Do you feel the agencies making some level of progress.
Well, I do think we're having to be more precise. I should make clear though, that you can have a crypto asset that is itself a security. So I think that someday we could see a world in which traditional stocks are tokenized. Well, if you tokenize a traditional stock, it is definitely still a security. You could tokenize a bond similarly. And so people do need to pay attention when they're creating crypto assets to whether or not they're
doing something. Are they fractionalizing thing, are they creating a token that will kick off a stream of payments to people? I mean they need to be thinking in those kind of context about whether something might be a security. So you can't make a blanket statement. No, crypto asset is
a security. But I think when we're thinking about crypto assets as the object of an investment contract, just you know, because of statements made around how it was sold those kinds of things, then we the sec need to be more precise in those instances. And I think you're seeing that sort of developing now.
Yeah, that's a great point to delineate between Yeah, tokenized assets versus the one the tokens that exist on blockchains which help the utility function. But I definitely agree with you that token ied stocks, token ice come and all need.
To be careful. They can't. You know, blanket rules don't work with the securities laws. It's always facts and circumstance. But that's why some of these statements that have been made around crypto coming from the SEC. In other places, we need to be careful too. We can't make blanket statements. Either.
Let's move ahead to sab one two one, or solve one two one as some would call it. I know you and I touch about this on this in the past, and there's been moves to have it repealed in the House and Senate. Ultimately, President Joe Biden vetoed it. However, we got news that certain banks and institutions may be able to bypass this, such as bny mellon what can you tell us there, what's happening with this?
Well, first of all, I think it's amazing that a staff accounting bulletin got enough attention that it became the subject of so much Congressional attention, and it actually, you know, ended up the Congress wanted to get rid of it. It didn't end up making it past a veto, a presidential veto. But the point is that there's a lot of concern around the staff accounting bulletin. So why is that a staff accounting bulletin is, as its name suggests,
a staff document. It comes out without the traditional, the typical process that would go with a rule. You don't have any time for people to comment on it. It just it's out there, and people technically don't have to comply with it because it's a staff document, but they feel that they have to comply with it because it reflects how the staff is thinking about things, and thus could if you don't comply, could result in a very
uncomfortable situation for you. And so it came out. It looked to me like a rule in the way it was written, and then it was applied at first to you know, just public companies that are that are filing with us, right, But then it sort of it started
being applied more broadly to broker dealer. It seemed to apply to everyone ultimately, and so the result of that was that you saw, and for people who haven't followed the debate as closely as you have, Tony sab one is basically about what does a company need to do from an accounting perspective when it's custodying crypto for customers. And so the result of it has been, because of its onerous effects, it has effectively led to most custodians
not being able to play in this space. And so there's been just a tremendous amount of pushback from traditional banks but also from people within the crypto space to say, hey, is this really does this even make sense from an accounting perspective, And so it's been out there for a long time. People have been complaining about it for a
long time. Then last month, I think it was the chief accountant at the SEC, who's on the staff at the SEC, put out a speech and said, hey, we're making some exceptions here for people from SAB one twenty one, and so people can go look at that speech to see kind of the conditions that might get you out of SAB one twenty one. But that also strikes a
lot of people as a little strange. Right, you've got the staff bulletin and then you've got a speech interpreting it and it's a staff speech and you've got to go. That doesn't seem like a great way to do rule making. So why not instead just say, Okay, if we're making exceptions for people, let's codify that so that everyone can comply with that, with those conditions and get the exception.
And so whatever we do in this space, we need to make sure that we have rules that people have been able to weigh in on that those rules then apply equally to everyone.
Yeah. Absolutely, because it just seems it muddies the water. I don't know what's happening, and a lot of people are complaining about it, But it would be great to have these trusted custodians and banks which have been established have insurance, have the proper security checks to be able to custody some of the underlying assets for ETFs like the bigcoin ETF and ethere and METF and so forth. That would be I think very good for the market.
When it Yeah, I mean, I think, yeah, that point is great. Right. We need to have competition. We don't want to pick winners and losers in this space. We want everyone to be able to compete on equal footing. And having a world in which you have multiple custodians tends to be a more uh you know, resilient world. Right, It's it's better to have more people playing in the in the space. Playing may not be the right word, but offering custodial services.
Yeah, for sure. Now, on the topic of ETFs, I would love to get your thoughts on the success of the Bitcoin ETFs. I mean, black Rock has over twenty billion in its respective ETF and then obviously the other issues are doing well. This seems to be a hit with the market, the fastest growing ETFs and the history of ETFs, But it had to go over the legal
hurdle and for the SEC to lose an appeal. In hindsight, I know you voted to have this approved, but in hindsight does the agency how are they looking at the success of the ETFs.
Well, we're not a merit regulator at the end of the day, so it's not really our goal to say, well, you know, this product is successful or not. But certainly the inflows into those products have been, as you said, notable, and I you know, this feeds into my point all along on these which is, let's just let the market
make their decision. We might not want these products. You know, if someone at a regulatory agency doesn't want to have those products, that's fine, but you have to have a reason for saying the market can't have it, and we didn't have a good reason for saying the market couldn't have it. And then once we did say that the market could have it, it turned out that a lot of people actually wanted it. And so it does make
me question which I had had questions before. But you know, by not allowing these products out much sooner than we did, what other products were people getting into and were those products inferior to the products that they ended up choosing. I mean, again, we're not a merit regulator, so I'm not making any comment on whether people should or shouldn't have this product in their portfolio. But the market tells us that there were certainly people who were interested in having it.
No, there's a big question. Well I shouldn't say question. Let me frame this. Obviously, the etherem media's got approved as well. But there's people in the market saying, okay, Etherreum is an all coin, second largest behind bitcoin. Bitcoin was established as a commodity for a very long time, going back years since Jay Clayton was chair and so forth. So folks are wondering, well, if Etheroreum as a smart contract proof of steak network got an ETF, what about Slona,
what about Cardono and so forth? Is the agency talking about these things? And I know there's lawsuits going on with some of these other tokens mentioned, but I guess what's the methodology here that have Etheroreum got the approval? But what about the other proof of steak networks?
Well, first of all, people need to come in and ask, right, So that's the first thing. And there was at least one applicant for a Salona product that I think got withdrawn, So again people have to come in and ask. That's the first step. The second step is, you know, we we would look at it honest facts and circumstances as we do other product filings. Now that said, people the SEC, as people know, the SEC has not been necessarily easy to follow in this space. So it's it can be
a difficult space. And I can't make any predictions on how on how any particular application would come out.
Gotcha? And but do you think that theoretically, if Congress is able to get Bill Thuddha Senate and eventually a president signs it, that that could help give the clarity and maybe next year Commissioner Purse.
To look at you know, bitcoin, both bitcoin and E futures markets and some other some others don't that could be something that you know that makes a market work in a particular way. Again, I'm not going to make predictions about what will happen with respect to any particular other all coin, ETP. But you know, I'm always happy for people to come tell me why they think we should have.
Them question about the futures market, because I've spoken to quite a few ETF experts and he said, you don't necessarily need to have a futures market to have a spot ETF approved. But the SEC has done it. That that's been the process, right, Why is it? Uh? It adds some balance to the market or what are some of the thought processes behind that?
Well, I mean I think it depends, of course on the particular product that you're looking at, the particular underlying that you're looking at. But I mean, having the futures markets for bitcoin enabled us to make some you know, to understand something about the underlying market for example. But again, as as you say, you can you can have spot markets without futures markets, so so that doesn't necessarily need
to be a condition. But that makes ether and bitcoin look more alike because they both have a futures market.
Do you think that will be the standard moving forward or that might change?
I really don't know. I mean, again, it doesn't make a lot of sense to to try to read the tea leaves here, because the facts and circumstances really do matter. And so when you talk about all coins, you're talking about one of many, you know, many thousands of possibilities, and so you really have to look at each one on its own.
Now, recently I saw Blackrock the SEC approved black Rocks spot etf options. Tell us a bit about that, and and uh, you know, are you getting a lot more demand? These agency getting a lot more demand? For additional financial products around these et s.
I mean, I think that wasn't a surprise to people to see that sort of happen. That's that's a pretty pretty natural kind of follow on product in terms of what the interest is for others, I don't actually know those those come into the staff, and so there may be others that are out there that I'm not that that I'm not aware of, m hm, and so a lot of you know, I think it's important for people to know that a lot of decisions that the staff
that the Commission makes. I mean, ultimately everything rolls up to the Commission, but there are a lot of just routine tasks that are delegated to the staff, and so you'll see a lot of these kinds of things they just go through through delegated authority, we call it. You saw that with the early bitcoin exchange traded product disapprovals were staff and then ultimately they got raised up and
started being commission level decisions. But it's a little bit of administrative law, kind of in the weeds stuff.
I don't know if you can answer this because this gets a bit bigger into the macro of investing, but I'm certainly I'm sure it's a topic that may come up with the SEC the modern day investors changing with social media, people can crowdsource on Reddit or on Twitter or whatever it may be. And then you throw AI
into mix and AI bots and whatever it is. Is the agency looking to use artificial intelligence to help police, if that's the right word, police this, or keep a track of all these things AI to police AI and even so many investors and changing dynamic.
Yeah, I mean it's a really great question, and I think we need to be looking at technology that way as a tool that we can use. Obviously, if the Commission is considering using something like AI, we have to think about all of the implications of doing that. You know, you don't want to build a surveillance state without really you know, that can happen sort of inadvertently that you can turn around and realize, oh, we've created a surveillance state.
We're watching everything that everyone does in the markets all the time. That's one of the reasons that I've been very concerned about this consolidated audit trail tool that we're building. So, yes, we should be using AI. It's a tool that we can be using to make our jobs as regulators to make us more efficient as regulators. We have a lot of people, for example, who are who are reviewing filing by investment companies, mutual funds and exchange traded funds and
public companies. And that's something where if we can use AI to take away some of the more routine tasks, then we can focus our staff on the more complex tasks. And same with monitoring market trends and and monitoring the use of AI by people in the market. So yes, we should be doing that where we develop tools at the SEC, we use these kinds of things, but we always have to do it with this care and mind not to turn our country into something that we don't
want our country to be. We do want people to have the freedom to transact and to interact with each other without being monitored all the time. That's really important, I think is a core American value.
Yeah, absolutely, great, great point. I don't know if you've seen this, but Congressman Warren Davidson had put out a bill called the SEC Stabilization Act where it would essentially change the structure of the SEC in his term words, to make it less political and have more balance, so to speak. Have you seen that how any thoughts about that.
Yeah, again, I mean I don't comment on legislation. I think it's always nice when we see people focused on our agency and interested in thinking about how it operates. So one of the things that a lot of people don't know about the SEC is that although we are a commission with five of US commissioners, the chairman has authority over the staff, the budget, and the agenda. Those are pretty three pretty big things. And so as a result, I can suggest that items be added to the agenda
or taken off the agenda. But ultimately, at the end of the day, staff is to him and he's setting the agenda. So that's how things run. And so I think sometimes people think about other ways of well, you know, if three commissioners think that we should put crypto rulemaking on the agenda, then should it be on the agenda for example? So it would be interesting to you know,
to have that a bill. I certainly would like that if I could convince two of my colleagues, hey, we ought to put something on the agenda here to put some definition around when a crypto asset is a security or is being offered and sold as a security. Then you know, if we could do that, that'd be great.
Mure. First, I know I asked you this months ago, but I'm curious if you change your mind, if you were nominated to be chair of the SEC, would you take that job.
You know, I'm really a lot more interested in trying to get the agency back on track then thinking about we can't have the discussion always be about personalities, right, It needs to really be about.
What is this.
Institution intended to do and what is it doing, and let's get the let's get those two things lined up again. And I think we have moved a bit away from where we're intended to be, and we need to have
a realignment. That doesn't require a new chairman. That requires just a new commitment to protecting investors, facilitating capital formation, and fostering fair, orderly and efficient markets, which is our job, and not trying to grab stuff that's outside of our jurisdiction, right, just really focusing on those things and working with the public and keeping ourselves open to hearing input. Right, those are the kinds of things that it doesn't require a
change in personnel. It requires a change in attitude, a change in culture, and that's what I'm more interested in focusing on.
On that note in a change of culture, and I maybe getting into left field here, but you know, one of the things I was thinking about and looking back in the past in the late eighteen hundreds at early nineteen hundreds, there was the Industrial Revolution, and the handle and lamp makers got disrupted by electricity and light bulb. The horse and buggy folks got disrupted by the automobile and so on and so forth, And then I see some of the political cartoons and the things that came
out there. There was fear was people trying to tarnish this new technology, and obviously, looking back in hindsight, it took us into a whole new world and made our lives better and so forth, you think some of that is happening here. Change is harder for humans. They fear the technology, this disruption happening, and going back to the
collective mindset, it's a process. It may take years and legislation and getting people in Congress understand it, and they pass legislation and get people and get the agency to understand it better. Do you think there's a bit of that happening here?
Well, that's something that I worry about, which is that regulatory agencies like other people. You know, the regulatory agencies are made up of people, and so like other people, we get used to things the way they are, and you get used to dealing with the same types of entities that you've dealt with for many years. The SEC just celebrated its ninetieth birthday this year, so we've been around for a long time. A lot of players have been around for a long time, and we've been you know,
the system has changed. Our markets have gotten very electronic and fast, and that was something they weren't before. Commissions are very low. Now people are using technology to provide investment advice, whereas before it was all, you know, very human driven, and so there are a lot of there
have been a lot of changes. But I think what you're seeing with something like the crypto world, as you're seeing people coming in from the technology world and they're saying, hey, we have some new ideas about how to do things that may affect the financial industry as well as other industries. It's not just the financial industry, and so we want to try those things. And we're saying when we see that, we the Commission see that. It does scare us a
little bit right. It scares us because it's a change in our world. It's a change in the people we're used to dealing with, it's a change in the way things are done. And you see this a lot when people talk about decentralization, specifically because we're so used to a world in which we have these centralized intermediaries that's who we regulate. And so you see a lot of discussion coming out of my agency where people will say
it's purportedly decentralized. It's always purportedly right, and often that's true. Often someone says it's decentralized and they're really sitting running it all on their server and they're in control of it. But if something truly were decentralized, it can be a real challenge to the existing way of doing things. And that is it does harken back to some of those
earlier trends that you were talking about. We could be in a better world if some of the things in our lives were operated in this decentralized fashion, because it would mean that we would have more control that we would have. There wouldn't be someone who could say, no, you can't get access to that financial product, because it would be out there and anyone who wanted it could access it. On the same terms, it would take away
points of failure in the system. We've seen in the past that a poorly managed centralized entity can have massively negative content sequences, and so doing something to allow us to eliminate those centralized points of failure could be really valuable. It's not to say that everything is going to be replaced, right, of course not. But we should be open to having change happen, and to having people come in and bring those changes who are new people, people were not used
to dealing with. And that is a very difficult thing for a regulator, and that's why we need to make sure that we keep talking with the public, that we keep people coming into the agency to work here who maybe bring fresh perspectives. And so yeah, it's a challenge and it's one that we should all be on guard for.
Final question, herefore, I let you go and all politics aside on this. I just want to get your thoughts on the idea. There was proposals about bitcoin being used as a reserve asset to help alleviate some the debt proms that we face with the current fiat currency system, and this is a global problem, and other countries are starting to make bitcoin a legal tender and using it
as a reserve. What do you think about that? And do you think something on that level, if it was to happen, would be a major catalyst for the agency and even government as a whole to be like, whoa wait a minute, Okay, we have to look at this differently.
As a securities regulator, my view on on what we're using as reserves or what we're you know, holding as
reserves as a nation really are irrelevant. I think for me, the more exciting thing is to see people making decisions about what they want to use to you know, we're in a world where there's there's a new possibility to have people interact directly with each other, as I was just discussing, without these intermediaries and kind of take more control over their own data, their own their own financial transactions.
And that's interesting to me. And and so I'm looking at that from my seat at the SEC and saying what can I do to make sure that we don't stand in the way of that or you know, on the NFT front, right people thinking about how can I use an NFT to monetize my talent. Those are interesting things to me, and those are areas where I want to make sure the SEC isn't blocking people from trying things.
The questions around what the what the national government is going to do are with respect to bitcoin are outside my purview.
Mentioneder Purse, always a pleasure. Thank you, and I hope to have you back on soon. And you know, maybe Congress will get some legislation through and our next conversation will be a very different one. But thank you so much for joining well.
Thanks for having me Tony. It's always fun to take care