We have to speak concerning the CFTC

You’ll have missed it after Sam Bankman-Fried’s Bahamas perp walk and a brace of brutal indictments by the SEC and the US Department of Justice, however the Commodity Futures Buying and selling Fee additionally piled on late on Tuesday.

Listed here are the CFTC’s expenses of “fraud and material misrepresentations” in opposition to SBF, the FTX alternate and his buying and selling agency Alameda.

“Digital commodity asset markets proceed to current dangers for buyers as a result of lack of fundamental protections,” mentioned CFTC Chairman Rostin Behnam. “The CFTC continues to be totally dedicated to utilizing all obtainable enforcement instruments and authorities to guard buyers and root out those that search to revenue by way of fraud and misappropriation.”

We laughed hollowly at this, and never about a couple of new details within the CFTC expenses, or due to the sheer magnitude of the authorized shit that has rained on SBF’s head in current days.

The reality is that the CFTC itself is by a mile probably the most compromised regulatory company in the case of crypto usually, and FTX particularly. That it’s now becoming a member of the possé to string SBF up shouldn’t obscure the pernicious function that the CFTC has performed in the case of “regulating” “digital” “belongings”.

Sure, the CFTC may not have been capable of forestall the FTX debacle. Frauds occur. However the company has constantly acted as a pleasant champion of a fraud-riddled dumpster hearth it purportedly desires to oversee. As Dennis Kelleher of non-profit investor advocacy group Higher Markets put it in a recent report:

. . . Slightly than aggressively regulating crypto and skeptically scrutinizing its claims, the CFTC has spent most of its time cheerleading the business and making an attempt to increase its jurisdiction reasonably than worrying about investor, buyer, and markets protections.

Initially, the very existence of the CFTC is a blight on all the US regulatory panorama. It’s an aberration that was solely born as a result of again within the Seventies, the SEC was snooty about regulating pork stomach futures. It has since been sustained in perverse life by the pork-filled nature of US politics.

Due to its roots as primarily a regulator of agricultural futures, the CFTC reviews to the Senate Agriculture Committee, whose members love the lobbying money that drips upon them. The US is the one main nation on the planet with such a balkanised monetary regulatory system, which has endured regardless of the monetary disaster exhibiting the hazard of regulatory arbitrage. It’s an ongoing hazard to America’s much-vaunted capital markets, and thus the worldwide monetary system.

That crypto ought to search to use the potential for regulatory arbitrage is comprehensible. However the willingness of the CFTC to debase itself as a prepared confederate within the course of has been eye-catching. Right here’s Kelleher of Higher Markets once more:

The CFTC is the smallest and least funded monetary regulator. Crypto believed it could be the simplest to seize, dominate, manipulate, and preserve defanged. Confirming that view, the CFTC has been solely too glad to affix the business in what’s little greater than a clear jurisdiction-expanding energy seize. The shamelessness of this reached its apogee when the CFTC’s Chairman not solely de facto endorsed pending laws that would have crippled the SEC’s means to police the capital markets (the Lummis/Gillibrand invoice), but in addition claimed that Bitcoin would double in price if his company was its regulator.

The CFTC’s dalliance with crypto began again in 2015, when the company decided that virtual currencies, reminiscent of bitcoin, met the definition of “commodity” – and subsequently conveniently fell below the CFTC’s auspices. The connection blossomed below Christopher Giancarlo, who turned a commissioner in 2014 and led the company in 2017-19.* He championed the crypto business in DC and blessed the introduction of the primary bitcoin futures in 2017, regardless of the completely unregulated nature of the particular underlying spot bitcoin market.

This has paid off in profitable advisory work and directorships within the spendthrift crypto business. Even in the present day, his website revels within the “CryptoDad” moniker bestowed upon him by crypto bros, which can be the title of his e book on the “combat for the way forward for cash”. It’s as if former SEC chair Chris Cox embraced the nickname “CDO daddy” whereas in workplace (which, to be clear, didn’t occur).

Oddly sufficient, Giancarlo makes no point out on his web site of getting been employed by SBF to engineer an introduction to SEC chair (and his predecessor on the CFTC) Gary Gensler. Right here’s what Giancarlo informed the Day by day Mail about this lately:

‘My function on this was to make the formal introduction, in a proper vogue, by way of the entrance door, totally disclosed.’

He added: ‘I can’t touch upon the character of the agency’s relationship with this consumer apart from to say at present FTX just isn’t a consumer of the agency [Giancarlo is now senior counsel at the law firm Willkie Farr & Gallagher]’

However Giancarlo is way from the one former CFTC official with hyperlinks to Sam Bankman-Fried and the crypto business usually.

Former CFTC lawyer and Gensler authorized counsel Ryne Miller is at present basic counsel at FTX. Former CFTC chair Heath Tarbert, who constructed on Giancarlo’s crypto work, is now chief authorized officer at Citadel Securities, the place he has lobbied for the CFTC to be the primary crypto regulator. Extra lately, former CFTC commissioner Brian Quintenz was employed by Andreessen Horowitz to lead its crypto lobbying efforts.

Earlier this autumn, former CFTC commissioner Jill Sommers was appointed to the board of LedgerX, FTX’s US derivatives enterprise. On the time she said:

I’m honored to be becoming a member of the FTX US Derivatives Board of Administrators to advance the mission of reshaping market construction in the US. The corporate has been on the forefront of bridging the hole between conventional and digital belongings whereas staying true to its founding rules of transparency and main the cost towards turning into probably the most regulated digital asset alternate on the planet.

However probably the most notable within the context of FTX is Mark Wetjen. The previous CFTC commissioner (and performing chair) was in November 2021 employed by FTX to be its head of coverage and regulatory technique. We’re stunned he has seemingly flown below the radar at the same time as individuals fulminate about the SEC’s Gensler, who has truly been one of many more durable regulators on crypto.

Wetjen appears to have performed an instrumental function in a number of the most retrospectively tragicomic chapters of the FTX saga — the alternate’s quest to get the CFTC to bless its danger administration strategy for the broader derivatives markets, whereas additionally securing the CFTC legislative endorsement as the primary crypto regulator.

From the New York Times.

Behind the scenes, Mr. Bankman-Fried additionally held discussions with different regulators, specifically the C.F.T.C., which regulates derivatives buying and selling. FTX officers had quite a few conferences with employees of the fee, largely to speak about FTX’s utility for a C.F.T.C. license. Bigger points, together with how cryptocurrencies must be regulated, additionally got here up, three individuals briefed on the discussions mentioned.

Rostin Behnam, the chairman of the C.F.T.C., and Mr. Bankman-Fried agreed that the C.F.T.C., reasonably than the S.E.C., ought to have major oversight of a lot of the crypto markets, the individuals mentioned. That was the broad thrust of a cryptocurrency invoice being drafted by Senator Debbie Stabenow, Democrat of Michigan, who was Mr. Behnam’s former employer.

Workers of the C.F.T.C. offered “technical” recommendation to Ms. Stabenow’s employees engaged on the invoice, referred to as the Digital Commodities Client Safety Act, mentioned Steven Adamske, a fee spokesman.

FTX representatives, together with Mark Wetjen, its head of presidency affairs and a former C.F.T.C. commissioner, additionally gave their enter.

Mr. Adamske mentioned that the technical help and authorized evaluation his group offered to Congress “got here solely from the C.F.T.C.”

Matt Williams, a spokesman for Ms. Stabenow, mentioned no single stakeholder, together with FTX, had “important enter” into the invoice. “Actually, not one of the substantial modifications FTX requested have been included within the laws.”

Mr. Bankman-Fried gave $20,800 to the Stabenow Victory Fund.

Handing the CFTC supreme crypto energy just isn’t the one factor that appears to have united the company, its present chair Behnam, and SBF.

FTX was additionally in search of the CFTC’s approval to make use of its computerized 24-hours a day margining system in regulated bitcoin futures, probably opening up different corners to the derivatives market to the strategy. Right here’s a good FT explainer on what FTX wished to do.

Regardless of many within the “TradFi” business rubbishing the concept as harmful, the CFTC appeared receptive, after Bankman-Fried estimated he spent “tens of 1000’s of hours speaking with the fee about this proposal”, based on the Washington Post:

Some federal regulators have warned that the concept might hurt shoppers and destabilize markets, however CFTC officers spent months in discussions with FTX because it developed the proposal and, in public feedback, Behnam provided constructive remarks concerning the concept.

Behnam repeatedly mentioned that his company had made no choice, however behind the scenes, based on Terry Duffy, chief govt of the Chicago Mercantile Trade, company officers wished to approve the proposal. They staunchly defended it in dialog with him this spring — a lot in order that Duffy, an opponent, informed them he would sue the company over it, he mentioned. In his view, all of Washington appeared to be entranced by Bankman-Fried’s guarantees of innovation.

“I’ve been [going to] Congress for 25 years — I’ve by no means seen a Washington, D.C., like I noticed that point, from the regulators to the members of Congress, singing hymns that I’d by no means heard earlier than,” Duffy lately recalled of his Might go to to Washington on the On the Tape podcast. “Nobody else was calling BS on these clowns however me.”

… At the least by way of October, Behnam and the CFTC remained publicly undecided on the FTX measure. However in remarks to teams, Behnam repeatedly touted the proposal’s potential, saying it may very well be an essential technical innovation akin to the shift within the ’90s from the buying and selling ground to computerized programs.

“It is a distinctive intersection of the crypto house and conventional finance,” Behnam said at a Georgetown University conference final month, based on information accounts.

In a super world, the CFTC would have blessed FTX’s auto liquidation danger administration system instantly earlier than the “alternate” collapsed (ie earlier than it might do any precise injury) after which spontaneously combusted with abject humiliation.

This might enable the SEC to select up all its obligations and hopefully carry some sorely-needed coherence to the US monetary regulatory structure, and have meant that the entire FTX debacle would possibly weirdly have had a web constructive impression.

As an alternative, we’re left to see CFTC’s Behnam and senators Stabenow and Lummis utilizing FTX’s collapse to argue they have been proper all alongside. We simply want to provide the CFTC extra powers to control an business that they’ve cozied as much as for nearly a decade! What might go incorrect?

Ryne Miller responded to FTAV’s request for remark by arguing that it’s truly a good thing about the US monetary system that individuals can drift between non-public and public jobs, which ends up in “extra mature market members”. Heath Tarbert and Jill Sommers declined to remark. Giancarlo, Behnam, and the CFTC didn’t reply to requests for remark. Wetjen couldn’t be reached for remark however we’ll replace instantly if we hear something from him.

It’s acceptable that we give the ultimate phrase to the crypto clown prince himself, the JPEG Morgan that our period deserves.

As SBF messaged a journalist final month: “Fuck regulators . . . they make every part worse . . . they don’t defend clients in any respect”. Nonetheless, the following day he stressed that the have been some regulators that had “deeply impressed me with their data and thoughtfulness”.

Such because the CFTC.

*Corrected to say that that the CFTC’s determination that digital currencies have been commodities occurred in 2015, when Giancarlo was a commissioner of the company, reasonably than chair.