The Winklevoss Bitcoin ETF got rejected a second time, but…

The SEC has rejected a second proposal to list and trade shares of the Winklevoss Bitcoin Trust on the Bats BZX Exchange, which would essentially be the launch of the first Bitcoin ETF. Cameron and Tyler Winklevoss, founders of the Gemini cryptocurrency exchange and big proponents of Bitcoin, have already been rejected in March 2017. 

The SEC dismissed the amended proposal on Thursday with a 3 to 1 vote, disproving BZX’s claim that Bitcoin markets are “uniquely resistant to manipulation,” and questioning whether BZX can do enough to deter fraud and manipulation on the market. 

But this time there’s a but. 

Following the SEC’s decision, which sharply drove the price of Bitcoin down from $8,287 to about $7,900, the SEC published Commissioner Hester Peirce’s dissent from the SEC’s decision. 

“Contrary to the Commission’s determination, I believe that the proposed rule change satisfies the statutory standard and that we should permit BZX to list and trade this bitcoin-based exchange-traded product (“ETP”),” Peirce wrote. 

She argues, essentially, that this is a case of catch 22: the Bitcoin market has its problems but these problems would be “mitigated by institutionalizing the market”. In other words, allowing the first Bitcoin ETF to launch would improve the Bitcoin market precisely in the way the SEC would want it to. 

“The disapproval order discourages new institutional participants from entering this market. Worse, it suggests that approval for bitcoin ETPs will come only when bitcoin spot and derivatives markets have matured substantially, yet, at the same time, contributes to further delay in their maturation, as potential institutional investors may reasonably conclude that the Commission will continue to repress market forces for the foreseeable future,” Peirce wrote. 

On broader terms, Peirce also believes that “the disapproval order demonstrates a skeptical view of innovation, which may have an adverse effect on investor protection, efficiency, competition, and capital formation well beyond this particular product.”

Peirce’s dissent is interesting, as it shows how the SEC might be swayed to change its decision on cases like this in the future. Cameron and Tyler Winklevoss’ bid was rejected, but there’s another active application for a Bitcoin ETF, coming from the VanEcx SolidX Bitcoin Trust. The SEC did not comment on that application at this time, and it still has until August 16 to do so according to CNBC.