CFTC advances crypto rulemaking after Senate bill fails 49-50

When Congress can’t get it done, the regulators do it themselves. The Commodity Futures Trading Commission has formally submitted a prerule on crypto asset transactions and markets to the White House Office of Management and Budget for review, a significant procedural step that puts the agency on a path to writing binding crypto regulations without waiting for lawmakers to sort out their differences.

The move came shortly after the US Senate failed to advance the Digital Asset Market Clarity Act, commonly known as the CLARITY Act, on September 15, 2026. The cloture vote fell 49-50, well short of the 60 votes needed to move the bill forward.

The CFTC isn’t exactly improvising here

CFTC Chairman Michael Selig had already been laying the groundwork before the Senate vote. On August 20, 2026, he directed staff to explore crypto trading rules, essentially hedging against the possibility that Congress might fumble.

The prerule, titled “Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets,” landed on OMB’s desk almost immediately after the Senate vote failed. Selig called the Senate outcome “unfortunate” and emphasized that Americans deserve clarity and consumer protections in crypto asset markets, and that the CFTC is prepared to enact rules using its existing authority under the Commodity Exchange Act.

The OMB review is a standard but critical step in the federal rulemaking process. Once the White House office signs off, the CFTC can publish its proposed rules in the Federal Register, opening a public comment period before finalizing them.

The SEC is playing the same game

The CFTC isn’t the only agency deciding to take matters into its own hands. SEC Chair Paul Atkins has signaled that his agency is ready to take decisive regulatory action independently of any new congressional legislation.

Among the SEC’s moves is a five-year conditional exemption for certain qualifying tokenized-stock platforms. The exemption would let these platforms operate under defined conditions without facing immediate enforcement action.

Analysts at Bernstein anticipate “aggressive and swift” rulemaking from both the CFTC and SEC following the legislative setback.

The CFTC has also been providing no-action relief to specific passive software providers, a tool the agency has used to create breathing room for certain crypto market participants while the broader rulemaking takes shape.

What agency-made rules mean for the market

There’s a meaningful difference between rules that come from Congress and rules that come from agencies. Legislation carries the weight of law and requires another act of Congress to undo. Agency rules, while legally binding, can be challenged in court, reversed by future administrations, or undermined by shifts in agency leadership.

Industry analysts have flagged this vulnerability. While agency-driven rules may be more aggressive in scope, they lack the legislative permanence that a comprehensive bill like the CLARITY Act would have provided.

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