Will US regulators shake stablecoins into high-tech banks?

Regulators around the world have been thinking seriously about the risks associated with stablecoins since 2019 but recently, concerns have intensified, particularly in the United States. 

In November, the United States’ President’s Working Group on Financial Markets, or PWG, issued a key report, raising questions about possible “stablecoin runs” as well as “payment system risk.” The U.S Senate followed up in December with hearings on stablecoin risks.

It raises questions: Is stablecoin regulation coming to the U.S. in 2022? If so, will it be “broad stroke” federal legislation or more piecemeal Treasury Department regulation? What impact might it have on non-bank stablecoin issuers and the crypto industry in general? Could it spur a sort of convergence where stablecoin issuers become more like high-tech banks?

We are “almost certain” to see federal regulation of stablecoins in 2022, Douglas Landy, partner at White & Case, told Cryptox. Rohan Grey, an assistant professor at Willamette University College of Law, agreed. “Yes, stablecoin regulation is coming, and it’s going to be a dual push” marked by a growing impetus for comprehensive federal legislation, but also pressure on Treasury and related federal agencies to become more active.

Others, however, say not so fast. “I think the prospect of legislation is unlikely before 2023 at least,” Salman Banaei, head of policy at cryptocurrency intelligence firm Chainalysis, told Cryptox. As a result “the regulatory cloud looming over the stablecoin markets will remain with us for a while.”

That said, the hearings and draft bills that Banaei expects to see in 2022 should “lay the groundwork for what could be a productive 2023.”

Temperature is rising

Most agree that regulatory pressure is building — and not just in the U.S. “Other countries are reacting to the same underlying forces,” Grey told Cryptox. The initial catalyst was Facebook’s 2019 Libra (now Diem) announcement that it aimed to develop its own global currency— a wake-up call for policymakers — making it clear “that they could not stay on the sidelines” even if the crypto sector was (then) “a small, somewhat quaint industry” that posed no “systemic risk,” Grey explained.

Today, there are three main factors that are propelling stablecoin regulation forward, Banaei told Cryptox. The first is collateralization, or the concern, also articulated in the PWG report, that, according to Banaei:

“Some stablecoins are providing a misleading picture of the assets underpinning them in their disclosures. This could lead to holders of these digital assets waking up to a seriously devalued stake as a function of a repricing and possibly a run.”

The second worry is that stablecoins “are fueling speculation in what is perceived as a dangerous unregulated ecosystem, such as DeFi applications that have yet to be subjected to legislation as other digital assets have,” continued Banaei. Meanwhile, the third concern is “that stablecoins could become legitimate competitors to standard payment networks,” benefitting from regulatory arbitrage so that one day they may provide “broadly scalable payments solutions that could undermine traditional payments and banking service providers.”

To Banaei’s second point, Hilary Allen, a law professor at American University, told the Senate in December that stablecoins today aren’t being used to make payments for real-world goods and services, as some suppose, but rather their primary use “is to support the DeFi ecosystem […] a type of shadow banking system with fragilities that could […] disrupt our real economy.”

Grey added: “The industry got bigger, stablecoins got more important and stablecoins’ positive spin got tarnished.” Serious questions were raised in the past year about industry leader Tether’s (USDT) reserve assets but later, even more compliant seemingly well-intentioned issuers proved misleading with regard to reserves. Circle, the primary issuer of USD Coin (USDC), for instance, had claimed that its stablecoin “was backed 1:1 by cashlike holdings” but then it came out that “40 percent of its holdings were actually in U.S. Treasurys, certificates of deposit, commercial paper, corporate bonds and municipal debt,” as the New York Times pointed out.

In the past three months, a kind of “public hype has entered a new level,” continued Grey, including celebrities promoting crypto assets and nonfungible tokens, or NFTs. All these things nudged regulators further along.

Regulation by FSOC?

“2022 is probably too early for comprehensive federal stablecoin legislation or regulation,” Jai Massari, partner at Davis Polk & Wardwell LLP, told Cryptox. For one thing, it’s a midterm election year in the U.S., but “I think we’ll see a lot of proposals, which are important to form a baseline for what stablecoin regulation could be,” she told Cryptox.

If there is no federal legislation, the Financial Stability Oversight Council, or FSOC, might act on stablecoins in 2022. The multi-agency council’s 10 members include heads of the SEC, CFTC, OCC, Federal Reserve and FDIC, among others. In that event, non-bank stablecoin issuers might expect to be subject to liquidity requirements, customer protection requirements and asset reserve rules — at a minimum, Landy told Cryptox, and regulated “like money market funds.”

Banaei, for his part, deemed an FSOC intervention in stablecoin markets “possible but unlikely,” though he could see Treasury actively monitoring stablecoin markets in the coming year.

Will stablecoins have deposit insurance?

A stronger step might require stablecoin issuers to be insured depository institutions, something recommended in the PWG report and also suggested in some legislative proposals like the 2020 Stable Act which Grey helped to write.

Massari doesn’t think imposing such restrictions on issuers is necessary or desirable. When she testified before the Senate’s Committee on Banking, Housing and Urban Affairs on Dec. 14, she stressed that a “true stablecoin” is a form of a “narrow bank,” or a financial concept that dates back to the 1930s. Stablecoins “do not engage in maturity and liquidity transformation — that is, using short-term deposits to make long-term loans and investments.” This makes them inherently safer than traditional banks. As she later told Cryptox:

“The superpower of [traditional] banks is that they can take deposit funding and not just invest in short-term liquid assets. They can use that funding to make 30-year mortgages or to make credit card loans or investments in corporate debt. And that is risky.”

It’s the reason traditional commercial banks are required to buy FDIC (i.e., deposit) insurance through premium assessments on their domestic deposits. But, if stablecoins limited their reserve assets to cash and genuine cash equivalents such as bank deposits and short-term U.S. government securities they arguably avoid the “run” risk and don’t need deposit insurance, she contends.

There’s no question, however, that fear of a stablecoin run remains on the minds of U.S. financial authorities. It was flagged in the PWG report and again in FSOC’s 2021 annual report in December:

“If stablecoin issuers do not honor a request to redeem a stablecoin, or if users lose confidence in a stablecoin issuer’s ability to honor such a request, runs on the arrangement could occur that may result in harm to users and the broader financial system.”

“We can’t have a run on deposits,” commented Landy. Banks are already regulated and don’t have issues with liquidity, reserves, capital requirements, etc. All that’s been dealt with. But, that’s still not the case with stablecoins.

“I think there are positives and negatives if stablecoin issuers are required to be insured depository institutions (IDI),” said Banaei, adding: “For example, an IDI could issue FDIC-protected stablecoin wallets. On the other hand, fintech innovators would then be compelled to work with IDIs, making IDIs and their regulators effectively the gatekeepers for innovation in stablecoins and related services.”

Grey thinks a deposit insurance requirement is coming. “The [Biden] Administration seems to be adopting that view,” and it’s gaining traction overseas: Japan and Bank of England both appear to be leaning in this direction. Those authorities recognize that “It’s not just about credit risk,” he told Cryptox. There are operational risks, too. Stablecoins are just so much computer code, subject to bugs and the technology might fail, he told Cryptox. Regulators don’t want consumers to be hurt.

What’s coming next?

Looking ahead, Grey foresees a series of convergences in the stablecoin ecosystem. Central bank digital currencies, or CBDCs, many of which appear close to roll-out, will have a two-tier architecture and the retail tier will look like a stablecoin, he suggests. That’s one convergence.

Second, some stablecoin issuers like Circle will acquire federal bank licenses and eventually look like hi-tech banks; differences between legacy banks and fintechs will narrow. Landy, too, agreed that bank-like regulation of stablecoins would likely “force non-banks to become banks or partner with banks.”

The third possible convergence is a semantic one. As legacy banks and crypto enterprises move closer, traditional banks could adopt some of the language of the cryptoverse. They may no longer speak about deposits — but rather stablecoin staking, for instance.

Landy is more skeptical on this point. “The word ‘stablecoin’ is hated in the regulatory community,” he told Cryptox and might be jettisoned if and when stablecoins come under U.S. government regulators. Why? The very name suggests something that stablecoins are not. These fiat-pegged digital coins are anything but “stable” in the view of regulators. Calling them such could mislead consumers.

DeFi, algorithmic stablecoins and other issues

Additional matters need to be sorted out too. “There is still a big issue of how stablecoins are being used in DeFi,” said Massari, though “banning stablecoins is not going to stop DeFi.” And, then there is the issue of algorithmic stablecoins — stablecoins that aren’t backed by fiat currencies or commodities but rather rely on complex algorithms to keep their prices stable. What do regulators do with them?

In Grey’s view, algorithmic stablecoins are “more risky” than fiat-backed stablecoins, but the government failed to deal with this topic in its PWG report, perhaps because algorithmic stablecoins still aren’t widely held.

Overall, isn’t there a danger here of too much regulation — a worry that regulators might go too far in reining in this new and evolving technology?

“I think there is a risk of overregulation,” said Banaei, particularly given that China appears close to launching its CBDC, “and the digital Yuan has the potential to be a globally scalable payments network that could take significant market share over payments networks coming under the reach of U.S. policymakers.”