OPINION
Congress Couldn't Pass a Crypto Law. So Regulators Wrote One Anyway.
With the CLARITY Act stalled until September, the SEC and CFTC keep filling the vacuum with rules of their own. That's a relief for the industry today, and a risk for it tomorrow.
BY JASON VISCOSI5 MIN READ
With federal market-structure legislation stalled, U.S. regulators continued defining crypto rules through agency action.
The agencies stopped waiting a long time ago
Friday's SEC vote on crypto fundraising rules isn't an isolated move. It's the latest entry in a pattern that started well before the CLARITY Act's latest delay: a March joint interpretation classifying 16 assets as digital commodities, a CFTC approval of the first regulated bitcoin perpetual futures contract in May, and a year-long CFTC "Crypto Sprint" building spot-trading rules through industry outreach rather than legislation. CFTC Chairman Michael Selig has said plainly that his agency will write crypto rules "regardless" of what Congress does. That's not a threat — it's already the operating reality.
Speed now, fragility later
It's easy to read this as good news, and in the short term it is: businesses that have waited years for basic answers about registration and market structure are finally getting some, faster than a divided Senate could ever deliver them. But agency rules carry a structural weakness statute doesn't. A future SEC or CFTC chair, appointed by a different administration with different priorities, can rewrite or withdraw guidance that took years to build, with none of the friction that repealing a law requires. The CLARITY Act, whatever compromises it eventually contains, would convert today's patchwork of interpretations and orders into something a company can build a five-year plan around without worrying that the next election changes the rules.
WHY IT MATTERS
Fast rules from regulators are solving today's problems while creating tomorrow's uncertainty. The industry keeps asking Congress for durable clarity precisely because agency goodwill isn't a substitute for it — and every month the CLARITY Act sits stalled is another month the whole framework rests on the discretion of whoever happens to be in the chair.
What to watch next
1.Whether Friday's SEC vote passes, and how far the resulting fundraising exemption extends.
2.Whether the September 15 CLARITY Act cloture vote finally clears the Senate, or slips again.
3.Whether industry groups start pushing harder for statute now that agency rules are visibly filling the gap — or whether the urgency fades the more comfortable the current patchwork becomes.
Frequently asked questions
Can agency rules be undone more easily than a law?
Yes. Guidance and interpretations issued by the SEC or CFTC can be revised or reversed by a future commission without any act of Congress, unlike a statute passed into law.
What would the CLARITY Act change if it passed?
It would write the current SEC-CFTC jurisdictional split, and the digital commodity classification system, into permanent law rather than leaving it as agency guidance that depends on who runs the commissions.
Why would an industry that wants clarity be wary of agency-led rules?
Because a rule written by regulators can be rewritten by the next set of regulators. Businesses building multi-year plans on a framework that could flip with a change in leadership face more long-term uncertainty than one backed by statute.
SOURCES & DATA
Opinion of the author. See his full bio and disclosures. See also our editorial process.
Jason Viscosi
Founder and accountable editor of Bitcoin Almanack.
Sources, standards & corrections
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Sources are linked inline. Read our editorial information, AI disclosure and corrections policy, or report an error.