Gary Gensler Confirmed As New SEC Chair As Agency Tackles GameStop Saga, ESG Boom And Cryptocurrency

Gary Gensler, the recently approved chair of the Securities and Exchange Commission, will have his hands full as he looks to tackle the key issues of the moment including ESG investing, cryptocurrency, order routing and a fiduciary standard for brokers.

Gensler, who previously served as chair of the Commodity Futures Trading Commission, was approved by the United States Senate on April 14 after a delay . Industry sources say he brings a reputation as an “extremely active regulator” having made it clear in his nomination hearing before the Senate Banking Committee in early March that additional disclosure requirements will be key to his approach to these pressing issues.

Kirkland & Ellis partner Norm Champ says that increased disclosure around ESG investing should be expected following the recent announcement of a Climate and ESG task force at the SEC led by Acting Deputy Director of Enforcement, Kelly Gibson. Champ expects more onerous requirements for companies to disclose how they are handling climate risk as well as diversity. While ESG investing has exploded over the past decade, there has been scrutiny over a lack of oversight of late as its popularity continues to swell.

Gensler will bring experience from his career in academia to bear, coming to the SEC from the Massachusetts Institute of Technology Sloan School of Management where he was a professor of the practice of global economics and management. He also served as co-director of a fintech group at the school as well as a senior advisor to the MIT Media Lab Digital Currency Initiative in between his two stints running financial regulators.

The financial services industry is still looking for a cohesive approach on the categorization of digital assets, which depending on the regulatory body has been considered a commodity, property, currency and a security.

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While issues like ESG and cryptocurrency have been building in prominence and were certain to be top of mind for the next chair, the GameStop stock rally earlier this year fueled by Reddit thrusts issues around online brokerages and order flow onto Gensler’s docket.

He will also be the latest head of the SEC to tackle the longstanding search for a clear fiduciary standard for financial advisors and broker-dealers that has been kicked back and forth between the SEC and the Department of Labor for a decade. He will likely work on that issue with Martin Walsh, the former Mayor of Boston who was confirmed as President Joe Biden’s pick for Labor Secretary last month.

The question remains whether he will strengthen the current law of the land, Regulation Best Interest, through an increased disclosure requirement or take on the larger task of reopening the longstanding debate by taking another look at the definition of fiduciary duty.

When Gensler ran the Commodity Futures Trading Commission he was active in rulemaking, issuing more than 40 rules and only having one struck down by the courts. Many of the issues he is set to tackle were already on the radar of the SEC under Acting Chair Allison Herren Lee. The exam division featured ESG, climate risks and Reg. BI compliance in its 2021 priorities released earlier this year. Lee said the commission plans to look at order flow payments in a Feb. 25 response to a letter from Senator Elizabeth Warren.

For now there is not much worry in financial services about the new leadership at the SEC, according to Champ, who spent nearly five years at the SEC serving as director of the Division of Investment Management, deputy director of the Office of Compliance, Inspections and Examinations and the associate regional director for examinations in the regional office located in New York.

If Gensler surprised the industry by proposing the types of regulations championed by the likes of Senator Warren or others progressive lawmakers, it could cause panic, Champ admits. “People are taking a wait-and-see approach,” he says.

That being said, Champ says that he is a contrarian when it comes to the narrative that there will be some seismic shift in SEC presence between the previous and current administrations. 

“Yes, the Trump administration was deregulatory but from an enforcement and examination perspective, the SEC was incredibly active over the last four years. It is really a disservice to the staff to say otherwise,”  Champ adds. “This narrative that there’s going to be some big change in examination and enforcement is way overblown. There will certainly be more rules, but from the policing perspective the SEC has been pretty darn active.”

However, one area where Champ expects to see a large change from the previous regime is the reemergence of the Financial Stability Oversight Council, created in the aftermath of the financial crisis as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, in order to identify and monitor excessive risks in the U.S. financial system. Gensler was active in supporting the council in his time at the CFTC and Champ concedes that the group housed within the Department of Treasury has been “dormant” over the past few years.

His advocacy for a revival of FSOC will be aided by the Consumer Financial Protection Bureau, another agency created by Dodd-Frank that is likely to see a revival under the current administration. President Biden has nominated Rohit Chopra to the post, an acolyte of Senator Warren who helped create the bureau. The head of the CFPB, along with Gensler’s last two federal posts, chairs of the CFTC and SEC, are among the 10 voting members on FSOC.

During his confirmation process, Gensler has not indicated his preferences to lead the five largest division within the commission, the Division of Enforcement, the Division of Corporation Finance, the Office of Compliance Inspections and Examinations, the  Division of Trading and Markets and the Division of Investment Management. Once he is confirmed, Champ expects names to emerge for those posts and with that more clarity about the tenor of his tenure.

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Big Tech’s De-Platforming Binge Highlights The Need For Web 3.0

Following the U.S. Capitol riot last week, the Big Tech leaders simultaneously de-platformed President Trump. Twitter followed suit by suspending 70,000 accounts associated with the far-right QAnon conspiracy theory group. Parler, the social media platform billing itself as a “free-speech paradise” was the next target as Apple AAPL and Google GOOG banned the mobile app from their app stores and Amazon Web Services stopped hosting Parler’s website.

Although the effort is arguably justified for several reasons, these actions raise questions about the state of “cancel culture” and the amount of unilateral power these centralized tech companies have accrued. If a sitting U.S. President can be de-platformed, does that mean everyone of us is also at risk of being cut off? Evidenced by Cambridge Analytica and other scandals, Big Tech has been exploited by malicious foreign actors to manipulate its users. Are the interests of Big Tech and its advertising-based business model aligned with those of its users?

These are hard problems, and I have no doubt Jack Dorsey and other Big Tech leaders are well intentioned in their crusade to minimize harm and stop the spread of bad ideas. However, by censoring and de-platforming droves of its users, Big Tech is only enflaming them and causing further entrenchment in their previously held beliefs, as ill-advised as those beliefs may be. Excommunicating users is an extraordinarily consequential punishment that can be imposed with no due process by monopolies on a whim.   

Public discourse is a pillar of our democracy, and although misinformation and bad ideas may be propagated on these platforms, it is only through public discourse that we are able to explore a full diversity of ideas and discover what is true. Any intellectual pursuit carried out with rigor requires the exploration of a wide set of ideas and hypotheses, even though the majority of these ideas will be rejected as the investigator inches closer to the truth.

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The marketplace of ideas must be open for us to effectively separate good and bad ideas, and any centralized arbiters with outsized authority will inject their implicit and explicit biases to steer the conversation and alienate certain groups.

Instead of cultivating “filter and preference bubbles” in which Big Tech’s AI algorithms foster the creation of personal echo chambers of ideas, Twitter’s algorithms should encourage a wider spectrum of debate. Rather than parrot the same idea leading to confirmation bias and a reinforcing of one’s original perspective, Twitter should display comments from individuals with opposing viewpoints and opinions.  

Social media companies are private enterprises, and presumably users have the choice whether or not to use specific platforms in an open marketplace. However, these platforms benefit from network effects in which their value increases exponentially as additional users join the network, creating an almost insurmountable barrier to entry for startup challengers. Due to their dominant position in public discourse, critics have argued the leading social media platforms should be regulated as public utilities. This is an open debate that the Biden Administration will need to contend with in the coming years.

Flipping the business model incentive structure

The incentive structure of the leading social media platforms is in conflict with the wellbeing of their users. Their ad-based business model relies on the monetization of attention, which is encapsulated in the phrase, “if you’re not paying for the product, you are the product.” By monetizing attention, Facebook and Twitter’s algorithms are implicitly programmed to push the buttons of their users, often tipping discourse towards outrage and dissonance.

As is hardwired in our psychology, fear and outrage provokes an emotional response that maximally captures our attention. One recent study concluded that anger makes people more vulnerable to misinformation and more likely to be highly confident in the accuracy of their memories. However, the more confident subjects were, the less accurate were their memories.

“Cancel culture” may also tip into our finances. As our activities and identities become further intertwined with the digital realm, our ability to engage in day-to-day business transactions and interact with basic financial products and services may be compromised if we fail to follow the status quo.  

To address these issues, young Web 3.0 platforms are experimenting with different business models and incentive structures to empower their users instead of manipulate them. Crypto is enabling the Web 3.0 evolution, in which users can seize control of their data and demand privacy as they interact with new decentralized applications that have no ability to manipulate or censor the user.  

By removing advertisers and precluding the brokering of user data, Web 3.0 platforms can implement more ethical standards for user behavior in the attention economy. Crypto Web 3.0 platforms may integrate a token that appreciates in value as users flock to the platform, further aligning the interests of developers, token holders, users, and other stakeholders.

Users may be able to port their Facebook, Twitter, and Shopify data, tokenize it, and then fully destroy or port it over into a user-owned economy of decentralized applications (dApps). Users would have increased choice in new open platforms, and the emergence of legitimate dApps would limit mass censorship. The Big Tech platforms would still exist, but they would be largely defanged as the Web 3.0 ecosystem would serve as a powerful check-and-balance.

Privacy-focused crypto assets Horizen and Zcash caught a bid in the wake of the de-platforming uproar, appreciating 52% and 71%, respectively, since the events on Capitol Hill last week. Horizen is a Web 3.0 platform that gives users control of their online data with its blockchain cloud computing platform for financial services, peer-to-peer messaging, media, and third-party decentralized applications. Zcash is a fork of Bitcoin that implemented ZK-SNARK cryptography to provide enhanced privacy for its users. These assets and others stand to benefit greatly if Big Tech cannot clean up their act and the Web 3.0 thesis comes to fruition.

As Web 3.0 platforms begin to challenge incumbents, Big Tech will need to disrupt themselves and introduce new business models to retain market share. However, advertisers and the attention economy produced over $533 billion in annual 2019 revenue for the FANG companies, so they are incentivized to cling on to their existing business models for as long as possible.

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