Senator Lummis files Amicus Brief supporting Coinbase's dismissal motion against SEC

The Senator also emphasized that Congress, not the SEC, has been granted the power to legislate in crypto, as she criticized the agency’s regulation-by-enforcement approach.
Brian Quarmby
Posted by Brian Quarmby August 12, 2023 3 Mins Read
The Senator also emphasized that Congress, not the SEC, has been granted the power to legislate in crypto, as she criticized the agency’s regulation-by-enforcement approach.

Crypto-friendly Senator Cynthia Lummis has filed an Amicus Brief supporting Coinbase’s motion to dismiss the U.S. Securities and Exchange Commission's lawsuit against the firm.

An Amicus Brief is a document filed in court by a party that is not directly involved with the related case. They are generally used to add supporting arguments to one side of the lawsuit, and emphasize how the case will have a broader impact beyond the involved parties.

As per the Aug. 11 filing with the U.S. District Court for the Southern District of New York, Lummis stressed that “this is no run-of-the-mill enforcement case.”

The Senator asserted that with its lawsuit against Coinbase over alleged securities violations, the SEC is pushing to obtain “primary influence” over the crypto sector at a time in which regulation and other factors are still “under active consideration by Congress and multiple agencies.”

“The SEC brings this enforcement action in the midst of debates in the halls of Congress and around the world about how crypto assets should be regulated. The Constitution empowers Congress—not the SEC—to legislate in such an area of profound economic and political significance.”

“Although the SEC seeks broad authority over crypto asset markets, most legislative proposals in Congress would instead grant much of that authority to other agencies. Unsatisfied, the SEC seeks to circumvent the political process to commandeer that authority for itself,” she added.

Coinbase filed a motion to dismiss on Aug. 4, arguing that the SEC had “violated due process, abused its discretion, and abandoned its own earlier interpretations of the securities laws,” by asserting authority over the exchange.

In the court filing, Lummis went on to argue that the SEC has been overstepping its authority by claiming that nearly all crypto assets are securities, as she questioned the agency's supposed regulation-by-enforcement approach, or what she described as an attempt to “legislate by enforcement.”

“The SEC’s attempt to shoehorn an entire new class of assets into the existing definition of a ‘security,’ and thereby add to the definition enumerated by Congress, exceeds the SEC’s authority, encroaches on Congress’s lawmaking, and contravenes the separation of powers. The SEC cannot legislate by enforcement.”

Related: SEC decision on Bitcoin ETFs won’t leave out Wall Street giants

Lummis is not alone in filing an Amicus Brief supporting Coinbase’s motion to dismiss.

On Aug. 11, crypto advocacy groups including the Blockchain Association, Crypto Council for Innovation, Chamber of Progress and Consumer Tech Association also submitted a joint filing.

In an X (Twitter) thread announcing the move, the Blockchain Association’s senior counsel Marisa Tashman echoed Lummis’ comments that the “SEC's regulatory authority extends only to what Congress granted it,” as she highlighted the risks of the SEC’s approach to the sector:

“The SEC's interpretation threatens to sweep in many non-security assets - this can't be what Congress intended when it granted the SEC authority to regulate securities.”

“The SEC takes the position that nearly all digital assets sold on the secondary market are investment contracts under the federal securities laws. But, these transactions involve no ongoing contractual obligations. The SEC's position is wrong,” she added.

Magazine: Crypto regulation — Does SEC Chair Gary Gensler have the final say?

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