The Securities and Exchange Commission (SEC) is facing criticism from the United States Chamber of Commerce over its lack of clarity regarding which digital assets are securities under federal law. This issue has “immense implications for every person involved in the $1 trillion digital-asset economy,” a court filing by the Chamber states.
According to the filing, the SEC has refused to engage in any systematic process or rulemaking to explain what its claimed authority means, instead offering one-off enforcement actions and public speeches. This has created regulatory uncertainty and destabilized the regulatory environment for digital assets.
In July 2022, Coinbase petitioned the SEC to initiate a rulemaking regarding digital-asset securities. It urged the Commission to answer basic questions such as “which digital assets are securities?” More than 1,700 commenters echoed Coinbase’s call, but the SEC expressed no interest in addressing Coinbase’s request, according to the Chamber. Coinbase then pursued a lawsuit against the SEC in order to compel the regulator into action, which is where the filing by the U.S. Chamber of Commerce comes from.
The SEC’s Chairman has asserted that the securities laws are unambiguous as applied to blockchain-based digital assets. Despite constructively denying Coinbase’s petition, the SEC has refused to memorialize its decision in a formal response.
According to the Chamber, the SEC’s lack of clarity has caused economic harm to both Coinbase and the broader business community. The uncertainty deters productive conduct and stifles innovation and undermines broader American economic and strategic interests. Continued uncertainty also has implications for the nation’s geopolitical interests and the continued primacy of the dollar, given the increasing relevance of digital assets to international monetary policy.
The SEC’s refusal to engage in rulemaking or respond to Coinbase’s rulemaking petition has destabilized the regulatory environment for digital assets, the Chamber states.
“Agencies ordinarily provide regulatory clarity by promulgating rules of general applicability,” the filing says. “This preference for rulemaking has important benefits: It forces agencies to put to paper their regulatory plans, and it provides for fixed, prospective effective dates that ensure parties can bring their conduct into conformance with the law rather than be held liable later for violating duties they did not know existed.”