SEC, CFTC Press Ahead on Crypto Rules Without CLARITY

On Aug. 4 the Commodity Futures Trading Commission announced it will finalize crypto rule proposals before the current administration ends, even if Congress does not pass the CLARITY Act. CFTC Chair Michael Selig told reporters the agency will move forward “regardless of whether Congress passes the CLARITY Act.”

The Securities and Exchange Commission has said it can keep producing crypto rules without new legislation. Commissioner Hester Peirce noted the agency can continue rulemaking work while SEC Chair Paul Atkins has stressed that only Congress can make those rules permanent.

Legislative action on CLARITY paused before the August recess. Senate Majority Leader John Thune filed for cloture and set a procedural vote around Sept. 15 that would need 60 votes to advance the bill. The House approved its version of CLARITY in July by 294-134.

Regulators have already issued several policy documents this year. In March the SEC and the CFTC released a joint interpretation and a token taxonomy that treated most crypto assets as outside the securities definition and described approaches to staking, mining, wrapping and airdrops. The CFTC said it would administer the Commodity Exchange Act consistently with that view. The CFTC approved the first U.S. bitcoin perpetual futures contract in May. Chair Selig has instructed staff to draft rules on leveraged retail crypto transactions and to design a new exchange registration category for digital-asset trading. The SEC has scheduled a meeting for Aug. 14 to consider a proposed offering regime for certain crypto investment contracts.

Different regulatory tools have different legal durability. Staff statements and memos can be withdrawn or allowed to expire. Agency interpretations have more weight but can be revised or defended in court. Formal rules that go through notice-and-comment offer greater legal stability because undoing them generally requires the same rulemaking process and judicial review under the arbitrary-and-capricious standard. The Supreme Court decision in Loper Bright reduced courts’ willingness to defer to agency interpretations of ambiguous statutes, affecting how firmly agencies can rely on guidance without statutory backing.

The CFTC already regulates crypto derivatives and has anti-fraud and anti-manipulation authority over spot markets. The agency lacks broad, day-to-day rulemaking power for ordinary spot trading of digital commodities. Selig can act within the CFTC’s current authority, while only Congress can expand that authority to create comprehensive spot-market rules.

Market effects vary by asset. Bitcoin, trading in the mid-$60,000s, has the strongest commodity treatment and the deepest base of regulated derivatives. A stalled CLARITY vote would not change Bitcoin’s basic legal status as much as it could affect token issuers, exchanges and decentralized finance platforms that lack clear statutory guidance. Delayed legislation could affect how quickly regulated leverage, institutional custody and bank-facing infrastructure develop around bitcoin while agencies work within existing powers.