The 'Gensler Agenda' wants the SEC to look back rather than ahead, say commissioners

Securities and Exchange Commissioners (SEC) Hester Peirce and Elad Roisman are advocating the agency spend fewer resources on overhauling existing rules and more energy on crafting regulation for emerging areas — including digital assets.

Though Peirce previously said she anticipated a Gensler-led SEC would create a "productive few years" for crypto, she and her colleague express concern over whether that will come to pass. In a statement responding to Chair Gary Gensler's agenda for his time in office, Peirce and Roisman pointed out emerging issues they felt were notably absent. 

"While there are important and timely items on the list, including rules related to transfer agents and government securities alternative trading systems, the Agenda is missing some other important rulemakings, including rules to provide clarity for digital assets, allow companies to compensate gig workers with equity, and revisit proxy plumbing," they said in a statement.

The likely reason for the lack of clarity in these areas, according to Peirce and Roisman, relates to resource management. The Commission has spent much of its resources revisiting rules that have already passed through the checkpoints laid out in the Administrative Procedures Act, which Peirce and Roisman call a "regrettable decision" of resource deployment.

Their statement worries that this trend will continue under Gensler, with the agency planning to spend more time and money in examining existing rules rather than creating guidance for emerging industries.

"The Agenda makes clear that the Chair’s recent directive to SEC staff to consider revisiting recent regulatory actions taken with respect to proxy voting advice businesses was not an isolated event, but just the opening salvo in an effort to reverse course on a series of recently completed rulemakings," they said.

Peirce has long been a proponent for creating clarity in the digital asset space. Both she and Roisman also supported expanding the accredited investor definition to allow more market participants in private markets. Gensler's agenda seeks to put some of that work under the microscope.

Reviews on the agenda include rules that are less than a year old and haven't resulted in occurrences that would require a review, according to Peirce and Roisman. They specifically take umbrage with the Agenda's plan to review rules related to proxy voting, the expanded definition for so-called "accredited investors," whistleblowers and the allowance of temporary delays in reporting payments for exploratory activities until the year in which the payments are made.

"The inclusion of these rules in the Agenda undermines the Commission’s reputation as a steady regulatory hand," they said. 

Instead, Peirce and Roisman want to further spread that steady hand by utilizing those resources for digital asset rulemaking, among other tasks.