CFTC Commissioner Says ‘Regulation by Enforcement’ Needs to Change

The Commodity Futures Trading Commission has its problems, as we’ve written, but even some of its commissioners are admitting they don’t have the tools to properly deal with the crypto space, leading to inappropriate regulation by enforcement.

This comes from Summer K. Mersinger, a CFTC commissioner, who spoke on CoinDesk TV’s “First Mover” this week.

Mersinger was referencing the CFTC’s actions with Ooki DAO, a lending platform governed by a decentralized autonomous organization. DAOs are digital-native, community-led organizations powered by blockchain technology. The case also involves Ooki DAO’s predecessor company, bZeroX, and founders Tom Bean and Kyle Kistner.

Mersinger said that holding DAOs accountable is “tough” when there isn’t a central individual at the helm, and that Congress needs to set better rules for the CFTC to follow.

On Sept. 22, the CFTC sued Ooki DAO for allegedly offering leverage and margin trading without registering with the agency or keeping a know-your-customer framework in place and simultaneously settled with bZeroX and its founders for allegedly engaging in the same practices.

Mersinger said the CFTC could have used a “public forum” instead of jumping straight to an enforcement action to discuss how to hold DAOs accountable.

“Before we do that, we need to have some notice to the public and encourage some public input,” Mersinger said. Earlier this week, the CFTC served a summons to Ooki DAO online with a help bot and on a forum post.

It could be useful to have a regime in place that would essentially help DAOs register with the CFTC, Mersinger said. But at the present, “they wouldn’t fit within our framework,” she said, explaining the difficulty someone from Ooki DAO would have if he were to register with the agency.

“We [have] to change our framework and allow for registration,” Mersinger said.

More broadly, she said, Congress must set some rules on regulation.

"Without more clarity in the laws without some sort of statutory change, we're going to continue to see any kind of regulatory-related regulatory framework on the federal level in digital assets coming out of enforcement decisions in court decisions," Mersinger said. "Unfortunately, that bypasses kind of the public legislative process, the public input and it's not an ideal way to govern.

You can watch the video here.