CFTC renewed: What Biden’s new agency picks hold for crypto regulation

Published at: Sept. 18, 2021

On Sept. 14, United States President Joe Biden revealed his picks to fill two vacant seats at the United States Commodity Futures Trading Commission (CFTC). In addition, the president nominated Rostin Behnam, who has run the derivatives regulator as acting chairman since January, to assume the office on the permanent basis.

The appointments are unlikely to face serious obstacles on their way to confirmation, as nominees will have to secure a simple majority vote in a Senate currently controlled by Democrats. What can the crypto industry expect of the CFTC if Behnam assumes permanent chairmanship and Kristin Johnson and Christy Goldsmith Romero join the agency as commissioners?

Bringing the commission up to strength

In 2015, the CFTC came forward and defined Bitcoin (BTC) and other digital currencies as commodities under the U.S. Commodity Exchange Act, joining the ranks of U.S. government agencies engaged in the regulation of the cryptocurrency space. The agency also asserted jurisdiction in cases when “a virtual currency is used in a derivatives contract, or if there is fraud or manipulation involving a virtual currency traded in interstate commerce.”

The CFTC, which is designed to be five-strong when fully staffed, has been down to acting chairman and two commissioners this year. Heath Tarbert, the former chairman, departed in March, and Brian Quintenz stepped down at the end of August. Furthermore, Dan Berkovitz, one of the remaining commissioners, has announced his intention to leave on Oct. 15.

Nominations come amid the Biden administration being criticized for taking its time to fill vacant positions in several key regulatory agencies, including the CFTC. If confirmed, the new additions to the agency will give Democrats a 3-1 majority on the panel.

From acting to permanent chairman

Acting Chairman Behnam has been with the CFTC since July 2017 when he had been sworn in as a commissioner. Serving under the crypto-friendly Chairman Giancarlo, Behnam has spoken favorably of digital currencies and their transformative potential on several occasions.

For one, speaking at a regulatory summit in 2018, Behnam opined that cryptocurrencies — or virtual currencies in the CFTC parlance — were set to become “part of the economic practices of any country, anywhere,” aptly observing that “some places, small economies, may become dependent on virtual assets for survival.” Finally, Behnam acknowledged limits to regulators’ reach if digital currencies continue to proliferate:

“These currencies will be outside traditional monetary intermediaries, like government, banks, investors, ministries, or international organizations."

More recently, the acting CFTC boss talked about the need for maintaining a constructive conversation between policymakers and innovators in the field of financial technology and how it is urgent for keeping U.S. innovation at home. In remarks in March 2020 regarding a crypto-related Commission action, Behnam stated:

“I have long advocated for a more inclusive conversation regarding the advent of financial technology, believing that a thorough examination and discussion of the technology within our current legal and regulatory framework will best serve technologists, market participants, and customers.”

It sounds like what the industry is longing for, doesn’t it? Yet, it would be premature to base expectations of the derivatives regulator’s future policies on these declarations alone. After all, like any U.S. financial regulator whose statutory goal is market participants’ protection in the first place, the CFTC can always be expected to err on the side of caution when innovation is perceived to be at odds with consumer safety.

Commenting on the recent settlement between BitMEX with both the CFTC and FinCEN, Behnam noted: “The CFTC will take prompt action when activities impacting CFTC jurisdictional markets raise customer and consumer protection concerns.”

New commissioners

Biden’s two picks for the vacant CFTC commissioner seats are Emory University law professor Kristin Johnson and Christy Goldsmith Romero, the current special inspector general of the Troubled Asset Relief Program, a federal law enforcement agency that deals with financial crimes related to the U.S. government’s bailout program.

Professor Kristin Johnson's recent work focuses on the implications of emerging financial technologies including distributed digital ledger technology (DLT) and artificial intelligence (AI) for financial regulation. Prior to her academic appointments at Emory and, before that, Tulane, she worked in corporate finance, most notably as assistant general counsel and vice president at JP Morgan.

In her capacity as the TARP Inspector General, Christy Goldsmith Romero investigates financial institution crime related to bailouts executed under the program. In this role, she works closely with the SEC, an agency where she previously served as senior counsel in the enforcement division.

Great expectations

On the surface, the trio appears to be a winning combination of an innovation-friendly chairman, a legal scholar with a deep understanding of cutting-edge financial technology and an expert financial crime investigator.

Daniel Davis, a partner at law firm Katten Muchin Rosenman LLP and former general counsel for the CFTC, believes that each of Biden’s picks has the potential to bring positive changes for crypto regulation. Acting Chairman Behnam, if he assumes the office permanently, will be in an excellent position to move the regulatory conversation forward.

In addition to that, Ms. Johnson and Ms. Goldsmith Romero each bring excellent crypto-related credentials to their potential roles as commissioners. Davis further noted regarding the two nominees:

“Both have taught law school courses related to crypto. Ms. Johnson has also written extensively on topics such as financial services regulation and how decentralized finance (DeFi) could fit within the current regulatory structure with some innovative ideas. One would expect that crypto-related issues would form an important part of their respective agendas if confirmed.”

In this light, it is indeed tempting to view the prospective CFTC reinforcements with optimism, but with some reservations. For one, as the example of the current SEC boss Gary Gensler shows, being knowledgeable about digital finance and teaching blockchain classes at a top university does not necessarily translate into becoming the crypto industry’s ally when the person assumes a high office at a regulatory agency.