Six weeks after the CLARITY Act stalled on the Senate floor, Treasury and the CFTC say they’ll build crypto’s rulebook themselves. Nobody voted on that part.
Here’s the timeline the press releases won’t line up for you.
On September 15, the Senate tried to move to the CLARITY Act, the market-structure bill that was supposed to tell the industry once and for all what’s a security, what’s a commodity, and who polices which. It didn’t even get to debate. The cloture vote on the motion to proceed failed 49–50, according to the Senate’s own cloture record. It needed 60. Law firms Orrick and DLA Piper point to two sticking points: ethics rules on officials’ crypto holdings, and whether stablecoins can pay yield. With midterms next week, Orrick calls passage this Congress “widely viewed as unlikely.”
Three weeks later, CFTC Chairman Michael Selig went to a Fordham Law symposium and said the quiet part out loud. “President Trump promised to deliver a crypto asset regulatory market structure with or without legislation,” he said, “and we will help him deliver it using our existing statutory authorities.” The CFTC then opened an advance notice of proposed rulemaking on leveraged retail crypto trading, along with a new exchange category it calls a “crypto asset market.”
This week it was Treasury’s turn. Speaking at Ripple’s Swell conference in New York, Treasury Secretary Scott Bessent called the CLARITY setback disappointing. Bitcoin Magazine reports he said Treasury will “bring the SEC and CFTC together to close the gaps through regulation,” with or without Congress. “At Treasury, we have a lot of convening powers,” he said, and he called the two agencies “great partners.” TokenPost reported the same with-or-without-Congress pledge. Bitcoin Magazine also notes what he left out: no formal plan, no working group, no timeline.
To be fair, a lot of this industry will cheer. Clear rules from an agency beat no rules from a Congress that can’t hold a vote. And Selig himself concedes the limit: only Congress can force every crypto exchange to register federally. The CFTC’s plan is an opt-in.
But step back and look at who’s holding the pen now. It isn’t the 100 people you elected to the Senate. It’s three agencies, run by appointees. The bill was meant to settle the securities-versus-commodities line in statute. Instead, by Selig’s own description, that line is being drawn by him and SEC Chairman Paul Atkins. A rule written that way can be unwritten the same way. Bitcoin Magazine says as much: agency action “can be reversed by a future administration.”
Speculation, labeled: The “with or without Congress” line is useful to people in both parties. Lawmakers skip a hard vote on stablecoin yield and ethics before an election. Agencies get to shape the market without a roll call. If that’s the deal, nobody signed it in public, and nobody will own it if it goes wrong.
Then there’s the money backdrop. On Wednesday the Federal Reserve held its target range at 3.75% to 4% on a 10–2 vote. Per the Fed’s statement, Governor Lisa Cook and Cleveland Fed President Beth Hammack dissented because they wanted a quarter-point hike now. CoinDesk, citing CME FedWatch, put December hike odds at 86% before the decision. After Chair Kevin Warsh’s press conference, other FedWatch readings showed low-80s. That’s another unelected body setting the weather crypto trades in.
Speculation, labeled: If rates are heading up while the rulebook is being written by memo, the firms best placed to win are the ones with lawyers in the room when Treasury “convenes.” Bessent made his pitch on a stage at Ripple’s own conference. So for XRP holders, and everyone else, the question isn’t just what the rules say. It’s who was invited to draft them.
So who writes crypto policy now? On the evidence, agencies do. Congress had its shot on September 15 and didn’t take it. The least voters can ask is that every rule the agencies write goes through full public comment, and that they read the comments. Whatever passes for crypto law next year, it shouldn’t be signed in a conference hall.
This is opinion, not investment advice.
Sources: U.S. Senate, Orrick, DLA Piper, CFTC, Bitcoin Magazine, CoinDesk, TokenPost, Federal Reserve, TradingKey.