Invest1 publisher3 min readPublished
The SEC opened a temporary tokenized-stock pathway two days after the Clarity Act stalled
The CFTC sent a crypto rulemaking to the White House the same day, both agencies working from authority they already hold. A bipartisan group of state attorneys general is arguing the states should keep theirs.
The Investor · Invest desk
What happened
- The Clarity Act, a comprehensive set of proposed digital-asset rules backed by the crypto industry, stalled in the Senate, and state and federal regulators are moving to fill the gap.
- Two days after the bill failed to advance, the SEC used its existing authority to issue an order creating a temporary pathway for trading certain tokenized stocks, edging markets toward 24/7 trading.
- The CFTC sent a crypto rulemaking proposal to the White House for review the same day, with the Office of Management and Budget confirming the rules were pending.
- A bipartisan coalition of state attorneys general had written to the Senate Banking Committee the day before the vote, urging opposition to the bill because it displaces state securities regulation.
- An SEC spokesperson said the agency will consider a proposal to modernize custody rules for investment adviser client assets and fund assets, including crypto assets.
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Why it matters
- constraint The venue that settles tokenized-equity questions is now an agency docket, so legal budgets go to comment letters and requests for relief instead of lobbying for a bill.
- exposure Without a statute that preempts, a national platform stays answerable to state attorneys general asserting police powers over scams, whatever the SEC and CFTC eventually publish.
- contradiction The industry says it cannot wait on Congress, yet CNBC reports agency rules do not come quickly and the CFTC has not published what its proposal covers, so the certainty being sought has no date on it.
A statute and an order are not the same thing to plan against. The pathway the SEC created for trading certain tokenized stocks is temporary on its face [3], so the commission that granted it can narrow it and a later commission can revisit it. Anything built on it needs a plan for what happens when it lapses.
The sequence was tight. The state attorneys general wrote on Sept. 14 [5], the Senate procedural vote failed on Sept. 15 [2], CFTC Chair Michael Selig staked out existing authority on Sept. 16 [13], and the SEC's order came two days after the vote, on Sept. 17 [1]. Four days separated the states' objection from the first federal workaround [2].
Selig did not dress up the approach. "President Trump promised to deliver a future-proof crypto asset regulatory market structure one way or the other, and we will help him get the job done using our existing statutory authorities," he said. The CFTC pointed CNBC to the statement [14].
The groundwork went back months. Project Crypto arrived in July 2025 to modernize securities regulation and align the SEC's and CFTC's crypto rules [8], and in August 2025 the CFTC began implementing the recommendations of the President's Working Group on Digital Asset Markets [9]. Caroline Pham, acting CFTC chair from the first day of Trump's second term until December and now CEO of MoonPay Institutional [10], told CNBC that "a plan B to move forward at the agency level was always in the cards" [11]. "You have to have a contingency plan," she said [12].
The industry's stated problem is uncertainty. Summer Mersinger, CEO of the Blockchain Association and a former CFTC commissioner, said, "When you're thinking about traditional finance entering in and using some of this technology, they're being held back right now because there is this regulatory uncertainty" [16]. Brian Armstrong, the Coinbase CEO who has pressed Congress to act, told CNBC after the failed vote: "At this point, I don't think we can wait on Congress and the Senate" [17]. Senate banking committee chairman Tim Scott asked federal agencies for "clear rules of the road" until Congress legislates [18].
The state layer is the part two federal dockets do not close. The letter went to Scott and the committee's top Democrat, Elizabeth Warren. "We write to urge the Senate to expressly preserve the police powers of the states and ensure that the states remain armed with the tools necessary to protect the American people from predatory scammers," the attorneys general wrote [19]. Aaron Klein of the Brookings Institution, previously a senior Senate banking staffer, said, "Capital market regulation, I think, needs to be done at the federal level." He added that "In terms of stopping fraud and scams, states have a lot of authority" [21][22].
I would plan around the SEC's orders and the CFTC's docket without treating either as settled law. Two developments would undo that view. If the CFTC's proposal clears review as broad market-structure rules with a firm effective date, the agency route is durable enough to build a business on. If the Senate revives the bill with its displacement of state securities authority intact [5], these four days in September were an interlude [2].
What to watch
- Whether state attorneys general open fraud enforcement actions against national platforms while the federal rulebook is unsettled.
- Whether the SEC formally proposes the adviser and fund custody changes its spokesperson described, or leaves them at the consideration stage.
- Whether other exchanges and brokers apply for the same relief the SEC's temporary order created.