Bernstein expects ‘aggressive’ rulemaking from SEC, CFTC, following CLARITY Act failure

Bernstein analysts said the SEC and CFTC are likely to pursue rapid, forceful rulemaking after the Digital Asset Market Clarity (CLARITY) Act failed a Senate cloture vote on Tuesday. The analysts told Cointelegraph they expect agencies to fill regulatory gaps with measures on token classifications, developer protections, equity tokenization exemptions and faster approvals for certain derivatives products.

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Bernstein expects ‘aggressive’ rulemaking from SEC, CFTC, following CLARITY Act failure

Why It Matters

With the CLARITY Act stalled, federal agencies may move quickly to set detailed rules that shape how digital-asset businesses operate and raise capital, altering industry compliance requirements and product pathways without new congressional legislation.

Key Facts

Analyst firm: Bernstein
Action expected: Aggressive and swift rulemaking from the SEC and CFTC
Source of note: Wednesday note shared with Cointelegraph
Legislative event: CLARITY Act failed Senate cloture vote on Tuesday
Regulatory topics expected: Token taxonomy for capital raises; developer protections for DeFi and self-custody; innovation exemptions for equity tokenization; faster approval for real-world asset perpetual futures; amendments to federal sports event contract rules/classification as swaps.

Bernstein analysts told Cointelegraph they anticipate the U.S. Securities and Exchange Commission and Commodity Futures Trading Commission will rapidly produce new rules after the CLARITY Act did not clear a Senate cloture vote on Tuesday. The firm said the agencies are likely to move to close regulatory gaps that lawmakers were negotiating through the stalled bill.

In a Wednesday note, Bernstein outlined specific areas where agency rulemaking could appear, including a formal token taxonomy for capital-raising, protections for developers working on decentralized-finance projects and self-custodial protocols, and carve-outs to encourage equity tokenization. The analysts also flagged expectations for quicker approvals of perpetual futures tied to real-world assets and possible changes to how federal sports-event contracts are treated under swap regulations.

Bernstein suggested agency action would provide greater legal clarity for market participants in lieu of the CLARITY Act, which proponents argued would have created a durable framework for digital assets. The analysts added that a Senate re-vote on the bill was unlikely because of a narrow available window and concerns related to the bill’s ethics provisions.

The expectation of agency-driven rules follows a series of SEC moves: on Aug. 19 the agency proposed new requirements aimed at defining certain crypto investment contracts and offering limited exemptions to allow token issuances for fundraising — up to $5 million over four years or $75 million in a 12-month period — alongside a proposed safe harbor from being classified as an “investment contract.” SEC Chair Paul Atkins also told CNBC on July 27 that the agency stood ready to issue rules if congressional action on the CLARITY Act failed.