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Stablecoins have grown to become an over $160 billion market. Yet, regulatory uncertainty across the globe threatens their future. We have seen the digital asset industry invest in effective lobbying campaigns. More of that is needed.
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Numerous threats remain to the stablecoin market. For instance, regulators could reel in the market by mandating changes to issuer business models. As Tether (USDT) makes clear on its transparency page, stablecoins are not precisely backed by dollars. Instead, a pool of assets earning a little more than 5% for stablecoin issuers back the world’s first popular real-world asset. Issuers generally do not pass any of the yields they earn to holders.
Tightening the regulatory belts
Stablecoin sponsors argue this is why stablecoins are not securities and face a comparatively light regulatory regime compared to most tokens with centralized teams. However, stablecoins’ existence as a currency and a lightly regulated financial instrument could be coming to an end. While Donald J. Trump promises to allow the expansion of stablecoins in the United States, the European Union and Switzerland are exploring legislation that could undermine stablecoins.
Questions remain over the future of stablecoins, which differ from many digital assets due to major stablecoins’ dependence upon central issuers.
Even though stablecoins don’t produce profit for holders, they could still be considered a security. In fact, a February 2024 New York federal court ruling determined a stablecoin may become a security when combined with a yield.
Stablecoins have an issuer who profits off the stablecoin: companies like Tether, Circle, Coinbase, etc. In addition, Circle uses BlackRock as a “primary asset manager of USDC cash reserves.” Moreover, securitized bonds exist today with negative nominal coupons despite investors having no reasonable expectation of profit.
Circle argued in a September 2023 amicus curiae brief in a legal battle between Binance and the SEC that stablecoins are not securities simply because users don’t expect to profit. The SEC, however, argued in a case against Binance that BUSD, Binance’s stablecoin, has represented security “since its inception,” mostly leaning on the fact that it offers yield.
Indeed, Binance’s stablecoin places money into “profit-generating” opportunities. In addition, Binance promised “interest-like” payments to people in the US for “simply buying BUSD and deploying BUSD into yield programs.
The SEC approach
The SEC does not only rely on the Howey analysis. It could be argued, for instance, that stablecoins represent a share in an open-end company under the Investment Company Act of 1940, especially if the stablecoin looks like a money market fund, which have Net Asset Value of shares pegged 1:1 to the US dollar.
It is therefore not unreasonable to think the SEC might view a stablecoin backed by a bundle of assets as an asset backed security.
In the Binance case, the New York Department of Financial Services ordered Paxos to stop administering BUSD. A Paxos spokeswoman in 2023 said the company does not view their stablecoins as securities under Howey or Reves. Stablecoin sponsors argue that stablecoins do not meet the three-part Howey test of an investment contract and sponsors keep profits to themselves. They argue stablecoins preserve value and prevent losses, but do not create profit.
In a court of law, an SEC lawyer might argue that just because issuers keep all of the profit for themselves doesn’t mean stablecoins are non-securities. All it takes is for a judge to agree and make a ruling based on this argument. A stablecoin is, after all, a receipt for an off-chain asset. There are also secondary markets for stablecoins, as well as an issuer-investor relationship. Financial instruments representing underlying digital assets—such as the Bitcoin (BTC) ETF—are considered securities. So, why not stablecoins, as well?
Stablecoin proponents will have been wrong. For a stablecoin to constitute a security, the buyer of a security doesn’t necessarily need to expect to make or lose money by buying and selling a security. The crypto market would be upended since it operates based on the assumption that stablecoins are currencies and not securities.
Centralization, one more time
What’s more, the dominant stablecoin model is highly centralized, both adding to concerns these might be securities and putting the stablecoin and broader crypto market at risk for government interference.
US authorities—or any country authorities—could revoke stablecoin issuers’ access to the banking and financial system. If a USD stablecoins issuer is overseas, the US government could request foreign governments to disinclude such entities from their respective banking systems. Furthermore, US authorities could require stablecoin issuers to comply with anti-money laundering and know your customer procedures, as Swiss authorities have done with a recent guidance document.
If the digital asset industry exerts the influence it so clearly now has, then stablecoins can continue to proliferate and millions can reap the benefits of financial inclusion.
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Author: Sarah Austin
Sarah Austin is an entertainment and technology executive and co-founder of Tilted.xyz, a game-streaming consumer application with game asset e-commerce. Sarah is an American author and tech entrepreneur. She is the former CMO and co-founder of metaverse funding platform QGlobe, and former CEO at Broad Listening, an artificial emotional intelligence agent.