Crypto in the infrastructure bill. Surprising? Not at all

Latest debacle shows why fintech firms and consumers need to get off the sidelines

Some in the crypto industry may not have been paying attention to Congress, but Congress has been paying attention to them, Flocken writes.  (Photos by Bill Clark/CQ Roll Call, iStock; Composite by Chris Hale/CQ RollCall)
Some in the crypto industry may not have been paying attention to Congress, but Congress has been paying attention to them, Flocken writes. (Photos by Bill Clark/CQ Roll Call, iStock; Composite by Chris Hale/CQ RollCall)
Posted August 31, 2021 at 7:00am

The cryptocurrency provisions in the bipartisan Senate infrastructure bill are a lesson for fintech more broadly: Fast-growing sectors catch Washington’s attention.

While Washington has been circling for some time, the crypto industry was caught off guard when a bill funding roads, bridges, airports and tunnels contained a provision that would require crypto brokers to report activity to the Internal Revenue Service and businesses to disclose trades of digital assets over $10,000. Social media exploded with cries that this “came out of nowhere,” was “rushed,” and was added to the bill “at the last minute.”

This is a wakeup call for fintech companies that have felt they do not need to pay attention to Congress. It also should be a call to action for the millions of Americans who use crypto. Congress moves quickly when it wants to. Congress does not need to get something “right” before legislating.

Firms that were paying attention know that the crypto provisions did not come out of nowhere.

As public interest in cryptocurrency has risen, members of Congress have not been shy about voicing their interest and support or their criticism and concern — or, in some cases, their belief that cryptocurrency should be banned. While it may not have initially grabbed headlines, the focus on cryptocurrency in Congress has been rising steadily for years. Formal exploration began in 2013 when the Senate Finance Committee directed the Government Accountability Office to study tax requirements and compliance risks associated with virtual currencies. That same year, the Senate Homeland and Government Affairs Committee sent letters to federal agencies in an attempt to ascertain their virtual currency policies and initiatives.

As attention on cryptocurrency has skyrocketed, so has interest from Congress. Its efforts to explore the topic, and resulting viewpoints, are public. Hearings are livestreamed and recorded for anyone to watch. Experts have been heard from. Bills have been introduced, and all legislation can be read and reviewed by anyone. Even letters from Congress to federal agencies imploring them to use their existing jurisdiction to oversee the growing crypto space are made public. In June, House Financial Services Chairwoman Maxine Waters, D-Calif., launched a Digital Assets Working Group to examine how cryptocurrency, central bank digital currencies and other digital assets are impacting consumers’ lives, from payments and investments to remittances.

Congress has been doing its job the way it usually does: by publicly exploring an issue that affects Americans and crafting legislation that addresses a perceived policy issue. It should not be a surprise when provisions on topics being debated in the halls of Congress are added to legislation moving toward enactment.

So what now?

The most difficult time to try to change a piece of legislation is when it is about to be voted on by the full House or Senate. In the case of the Senate infrastructure bill, there was a furious effort to amend the crypto provision at the last minute. When that effort failed, crypto groups turned their efforts toward the House where the Congressional Blockchain Caucus began working to raise awareness among members about the negative impact the Senate provisions could have. The House, however, agreed in a 220-212 vote to a process that would prohibit any amendments from being considered for the bill. The House is set to vote on the bill by the end of September. Assuming it passes, the crypto industry will have to pursue other legislative vehicles to revise the policy.      

What that effort will look like depends on whether the consumers and firms impacted by this provision get — and stay — off the sidelines.

Katherine Flocken, a former Senate staffer, is a senior policy adviser at Allon Advocacy LLC, where she helps fintech and financial services companies navigate complex policy issues.