On April 5, 2012 Barack Obama signed into law the Jumpstart Our Business Startups (JOBS) Act. This piece of legislation was supposed to relax the regulation around equity offerrings for small and medium sized enterprises and usher in a new age of easy crowdfunded investment. It is now nearly 2 years later and crowdfunding has become an institution in the startup world, Kickstarter has surpassed $1-billion in funds raised, crowdfunded enterprises are being bought for billions, and still crowdfunded equity is nowhere to be seen. What happened?
Back in 2012, there was a real buzz in the air around the new phenomenon of crowdfunding. While it had been around for a few years at this point, crowdfunding had hit the inflection point in its growth curve, and the future really looked bright. While people were flocking to services like Kickstarter and Indiegogo to support their favorite projects, people were also left questioning why they could not receive equity in exchange for their investment dollars.
This question hangs poignantly in the air, as a popular enterprise which got its start with a 2012 Kickstarter campaign was recently purchased for some $2-billion. The reaction of supporters of the Oculus Rift to the purchase by Facebook has been swift and strongly negative, and I think supporters have some right to their outrage. Backers did not give their support to Oculus on Kickstarter in order to build value for a Facebook acquisition.
But what if the story had been different? What if early supporters had been given a piece of the Oculus Rift pie rather than a piece of hardware. Could this instead be a story about the success of crowdfunding as a democratization of the investment process?
The problem with crowdfunded equity is that strict rules around investment mean that only accredited investors are allowed to buy equity in “high-risk ventures” like startups. While I theoretically understand the idea behind such regulation to protect the poor from predatory investments, the love of governments for another type of high-risk investment which is favored by those of modest means really throws their intentions into question. It strikes me that at some level this regulation serves mostly as a mechanism to keep the rabble out of the walled garden where angel investors play.
But the JOBS Act was supposed to change all of that. It was supposed to allow small investors to invest small amounts of money in small businesses in exchange for small equity, and that was going to change everything. And everything was supposed to change quickly.
The JOBS act gave the Securities and Exchange Commission 270 days to draft regulation for this new kind of investment. The revolution was scheduled for Christmas eve 2012, but Christmas eve came and went and no new regulatory framework was in sight. Still, it seemed that the changes required by the JOBS act must be imminent, and in January of that year I wrote this short post about how I thought crowdfunded equity stood to be one of the biggest stories of 2013 (and it should have been).
Now, it is 723 days since the JOBS Act became law and the regulatory framework is still not in place to allow crowdfunded equity to happen. It is still scheduled to be in place some time in the future (summer 2014?). Even then, there is some indication that the rules which will likely be put in place for crowdfunded investement may turn out to be too onerous to make it worthwhile for both startups and investors.
I really don’t understand why a good idea like crowdfunded equity, which has defied the odds and actually made its way through congress, has been eaten by the bureaucracy. Why has the SEC been allowed to fumble the ball for 723 days? 723 fucking days (and counting). I try to always live my life with the principle of Hanlon’s Razor in mind, but the sheer ridiculousness of this situation stretches my ability to chalk this up strictly to beaureaucratic incompetence. The SEC is a toothless eunuch when it comes to regulating banks, but they can keep individuals from using the internet for startup investment?
It seems that those in charge want to see neither a regulated nor deregulated market.
So here we wait, in much the same place we were a couple of years ago, with new crowdfunding rules seemingly a perpetual few months away. I still believe that allowing small-scale investment to take place on the internet is low-hanging fruit for the wider economy, but that fruit has certainly started to whither and the tree itself is not looking so healthy. So we will keep waiting until the day we will be free to invest in ideas on the internet, until then the debacle that is crowdfunded equity will serve as just another example of how the economy and government are so focused on serving established interests that they are willing to sell-out our collective future.
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According to this [PDF: http://bit.ly/1hnkmwr%5D the SEC isn’t allowed to change the “accredited investor” definition until “mid-2014″ due to the Dodd-Frank Bill.
To read the fine print skip to SEC. 413 of the law [PDF: https://www.sec.gov/about/laws/wallstreetreform-cpa.pdf%5D.
It basically says things can change four years after the law is passed and Obama signed it on July 22, 2010 so I guess the exact date is 7-22-2014.
Here’s what one of the SEC commissioners said last May according to the first link:
“Walter suggested removing the income and net worth factors from the definition
and shifting to a test focusing on the amount of an investor’s assets that are to be invested. In Walter’s opinion, such a test will be easier to measure and verify than the current definition”.
I sure hope that they really decide to let us mere mortals in on the fun!
The use of brackets broke my links in the last comment and I do not know how to edit it.
Here they are again but this time naked and bracket free: http://bit.ly/1hnkmwr , https://www.sec.gov/about/laws/wallstreetreform-cpa.pdf
Thanks for the links, that is actually quite helpful to explain why things are taking so long. I still think the whole thing is a boondoggle though.
Crowd funding equity seems to me to be something like the infamous penny stock market. Perhaps that is a good reason for delaying it.