SEC ‘Squandered a Decade’ Rejecting Bitcoin ETFs: Commissioner Hester Peirce

By Decrypt January 11, 2024 In Bitcoin, Metaverse ETP
SEC Chair Gary Gensler. Image: Third Way Think Tank

The United States Securities and Exchange Commission (SEC) finally approved the trading of spot Bitcoin exchange-trading funds (ETFs) Wednesday, as expected, but at least one SEC commissioner isn’t mincing words in describing the toll wrought by the long wait on the agency, investors, and the cryptocurrency industry.

SEC Commissioner Hester Pierce, a longtime crypto advocate nicknamed “Crypto Mom” by fans, issued her statement on Wednesday’s action. It followed the statement from SEC Chair Gary Gensler, who took a more begrudging tone about the long-awaited Bitcoin ETF approval.

“Today marks the end of an unnecessary, but consequential, saga,” Peirce wrote, noting that the first application for a spot Bitcoin ETF was filed in the United States more than 10 years ago. She said that the question of why a spot Bitcoin exchange-traded product (or ETP) is needed has popped up regularly over her six years with the agency.

“For reasons I have explained many times before, the logic of the long string of denials is perplexing,” she wrote. “Predicting approval timelines for spot Bitcoin ETPs was impossible because the review process for these filings did not resemble the fairly straightforward processes for approving comparable ETPs. The goalposts kept moving as the Commission slapped ‘DENIED’ on application after application.”

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SEC Chair Gary Gensler. Image: Third Way Think Tank
SEC Chair Gary Gensler. Image: Third Way Think Tank

Peirce notes that the SEC’s lack of prior action “has driven retail investors to less efficient means of attaining Bitcoin exposure in the securities markets,” and said that “rather than admitting error, [the SEC] offers a weak explanation for its change of heart.”

“We squandered a decade of opportunities to do our job,” she wrote. “If we had applied the standard we use for other commodity-based ETPs, we could have approved these products years ago, but we refused to do so until a court called our bluff.”

The SEC’s decision to finally approve spot Bitcoin ETFs came after a U.S. Court of Appeals for the D.C. Circuit justice ruled in August that the agency must review an application by crypto firm Grayscale to convert its Bitcoin Trust into a true ETF. Without a “coherent explanation” as to why it was denying spot Bitcoin ETFs, the justice wrote, such denials appeared to be “unlawful.”

Gensler alluded to the court ruling in his own statement, writing that while the latest Bitcoin ETF applications are similar to previous attempts, the “circumstances, however, have changed”

“Based on these circumstances and those discussed more fully in the approval order,” Gensler continued, “I feel the most sustainable path forward is to approve the listing and trading of these spot Bitcoin ETP shares.”

Peirce’s points

Despite Wednesday’s approval, the “order does not undo the many harms created by the disparate treatment of spot Bitcoin products,” Peirce surmised, before digging into a litany of specific problems that she believes were caused by the SEC’s staunchly anti-crypto approach over the past decade.

“First, our arbitrary and capricious treatment of applications in this area will continue to harm our reputation far beyond crypto,” she explained. “Diminished trust from the public will inhibit our ability to regulate the markets effectively. This saga will taint future interactions between the industry and our staff and will dampen the rich, informative dialogue that best protects investors.”

Peirce further called out what she sees as a waste of resources, as “likely millions of dollars of staff time has gone toward blocking these applications” over the years. She also said that it has “muddled people’s understanding of what the SEC’s role is” over that span.

“Congress did not authorize us to tell people whether a particular investment is right for them,” she said, “but we have abused administrative procedures to withhold investments that we do not like from the public.”

Furthermore, Peirce believes that the SEC’s actions have “created an artificial frenzy” around Bitcoin ETFs, and that had the regulator followed its own rules, “we would have avoided the circus atmosphere in which we now find ourselves.”

She also believes that the SEC has “alienated a generation of product innovators within our space,” and lamented the “costly legal battle” that finally led to the approval of spot Bitcoin ETFs.

“Although this is a time for reflection, it is also a time for celebration. I am not celebrating Bitcoin or Bitcoin-related products; what one regulator thinks about Bitcoin is irrelevant,” she added. “I am celebrating the right of American investors to express their thoughts on bitcoin by buying and selling spot Bitcoin ETPs.”

“And I am celebrating the perseverance of market participants in trying to bring to market a product they think investors want,” Peirce continued. “I commend applicants’ decade-long persistence in the face of the Commission’s obstruction.”

Edited by Ryan Ozawa.

SHOW ALERT: Tune in to Rug Radio’s FOMO Hour at 10:30am ET Thursday to hear Decrypt’s Stacy Elliott and Fox Business’s Eleanor Terrett chat all things Bitcoin ETF with Farokh Sarmad, Michael Anderson, and Ovie Faruq.

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