SEC $75M Rule vs Senate’s $50M-or-10% CLARITY Plan

The Securities and Exchange Commission has proposed rule changes that would create a $75 million, 12-month exemption for certain crypto-asset offerings. The SEC proposal includes a smaller startup exemption allowing up to $5 million over four years and a larger offering-and-reporting exemption permitting up to $75 million in any 12-month period with purchaser limits, disclosures and ongoing reporting requirements.

Senate Section 103 in the CLARITY Act would create a statutory exemption for transactions in so-called ancillary assets sold under an investment contract. That approach sets an annual ceiling equal to the greater of $50 million or 10% of the issuer’s outstanding ancillary-asset value measured over a four-year period, and it caps aggregate sales under the exemption at $200 million.

The two texts rely on different legal mechanisms. The SEC would establish exemptions by agency rule, while the Senate would create a statutory transaction exemption tied to a category of assets. The SEC route pairs a fixed 12-month dollar ceiling with purchaser caps based on a 10% financial-capacity test, required offering disclosures, audited financial statements for larger issuers, and annual, semiannual and current reports. The SEC proposal also indicates federal preemption of state registration requirements for covered offerings and does not include a general resale holding period for purchasers under the $75 million path.

The Senate framework requires an initial filing after the first sale and semiannual disclosures while the exemption conditions apply. The draft preserves specified federal liability provisions, including Securities Act Section 12(a)(2) and Exchange Act Section 10(b) and Rule 10b-5, and it preserves private rights of action. The Senate text places specific limits on sales by related persons and on holders acting in coordinated control of a network, which could restrict transfers by founders and insiders even if ordinary secondary-market trading remains mostly unrestricted.

How much an issuer can raise depends on definitions and measurements in each text. Under the Senate formula, an issuer with a large outstanding ancillary-asset base could raise more than $50 million in a year up to the $200 million aggregate cap. Under the SEC rule, the larger $75 million exemption is a fixed ceiling but comes with purchaser limits and a detailed disclosure and reporting regime.

The SEC proposal is open for public comment through Oct. 20, 2026. Congressional language remains draft: the Senate Banking Committee advanced one text in May, a reported version appeared in June, and an updated discussion draft was released in July. Neither route takes effect until the SEC finalizes any rule or Congress enacts statutory language and completes any implementation period.

Which path an issuer may use will turn on how regulators and courts define the covered assets and whether a sale meets the specific transaction conditions in the applicable text.