Clarity Act's Senate stall hands US crypto rulemaking to the SEC and CFTC

"The SEC and CFTC are already moving proactively to provide the regulatory certainty markets need, and that's unlocking a wave of M&A across digital assets, traditional financial services, and fintech alike," KBW's head of digital assets, Paul McCaffery, said ^[9]. Matt Hougan, Bitwise's chief investment officer, would take the agency route in the short term over a law that would have required years of further rulemaking after it passed ^[10]. He also expects buybacks to spread to more protocols, buy-and-burn designs especially ^[10]. Both commit cash on the strength of agency action. Three of the agencies' measures came in the 18 days from September 17 to October 5 ^[15].

Some of what those decisions stand on is staff guidance. "The fact that the SEC staff is even willing to say these things explicitly is a win," said Cathy Yoon, chief legal officer at Temporal, a Solana-focused research and development firm, who also noted that staff FAQs are not SEC rules ^[11].

There are three ways this can go. Lev Breydo, an assistant professor of law at William & Mary Law School, expects the SEC to spend 2027 completing offering and custody rules and building on its tokenized-stock exemption ^[8]. He calls the agencies' March joint interpretive release an important foundation that supersedes earlier guidance ^[8]. If he is right, agency rules harden into a durable base. The second outcome, raised by the lawyers CoinDesk interviewed, is a set of rules vulnerable to political and legal change, with businesses adapting each time ^[17]. The third is Congress coming back to the gaps legal experts say it still has to address ^[14].

We think the second outcome is the likelier near-term one, and that it favours size. CoinDesk's summary says established exchanges could keep their competitive advantage ^[13], though the interviews it published do not name them or explain how. The case rests on structure: the exemption is open to qualifying venues ^[2], and the custody proposal applies only under certain conditions ^[4]. Each revision to a temporary rule is a compliance bill paid again. A large venue spreads that bill over more volume than a new one can. Breydo said Clarity exposed divisions within the industry, including over ethics provisions and the yield fight with community banks ^[7]. "A coalition that looked unified against Gensler found out definitions create winners and losers," he said ^[6]. We are wrong if the first venues to trade under the exemption are newcomers, or if the CFTC's new registration category for crypto markets comes out cheap enough for small platforms to use ^[3].

Breydo's list of the SEC's likely 2027 work does not include spot markets ^[8]. Unleveraged spot trading was the central gap Clarity set out to close ^[5]. "The biggest gap is implementation," said Derek Lowrey, head of legal at Newton Labs ^[12].