Bernstein: CLARITY Act Failure Could Accelerate SEC and CFTC Crypto Rulemaking
Key Takeaways
- •Bernstein believes the lack of progress on the CLARITY Act could accelerate SEC and CFTC crypto rulemaking.
- •The SEC has generally treated many digital tokens as securities under the Howey test, while the CFTC has viewed major cryptocurrencies such as Bitcoin and Ether as commodities.
- •Agency-led rulemaking would not replace comprehensive legislation, but it could provide the industry with greater near-term regulatory certainty.
- •Crypto firms have cited regulatory ambiguity as a major challenge, and some have expanded into jurisdictions with clearer frameworks such as the European Union's MiCA regime.
Research firm Bernstein believes that the failure of the CLARITY Act could prompt U.S. regulators to accelerate cryptocurrency rulemaking, potentially providing the digital asset industry with greater regulatory clarity even in the absence of new legislation.
According to Bernstein's analysis, if Congress is unable to advance comprehensive crypto legislation, the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) may take a more active role in establishing regulatory frameworks through their existing legal authority. Rather than waiting for lawmakers to act, regulators could introduce additional guidance and formal rules addressing key areas of the digital asset market. The CLARITY Act is among several legislative proposals Congress has considered as part of broader efforts to establish a comprehensive digital asset regulatory framework, an area where multiple bills have been introduced but none have reached final passage.
SEC and CFTC Could Take the Lead
Bernstein argues that the lack of legislative progress may encourage both agencies to speed up efforts to clarify how cryptocurrencies, exchanges, brokers, and other market participants should be regulated. Clearer guidance could reduce uncertainty for crypto businesses and institutional investors while defining the jurisdictional responsibilities of each agency. The SEC has primarily applied the Howey test — a framework derived from a 1946 Supreme Court case — to argue that many digital tokens qualify as investment contracts subject to securities laws. The CFTC, which oversees commodity and derivatives markets under the Commodity Exchange Act, has maintained that major cryptocurrencies like Bitcoin and Ether are commodities and has regulated crypto futures alongside spot-market fraud and manipulation enforcement.
Although agency-led rulemaking would not replace comprehensive legislation, Bernstein notes it could provide the industry with greater near-term certainty. Crypto firms have repeatedly cited regulatory ambiguity as a key operational challenge, with some companies expanding into jurisdictions that have already implemented comprehensive frameworks, such as the European Union's Markets in Crypto-Assets (MiCA) regulation.
JUST IN: $867B Bernstein says CLARITY Act failure could accelerate SEC and CFTC crypto rulemaking. pic.twitter.com/qO6brwEIy5 — Cointelegraph (@Cointelegraph) August 3, 2026
JUST IN: $867B Bernstein says CLARITY Act failure could accelerate SEC and CFTC crypto rulemaking.
Why It Matters for the Crypto Industry
The future of U.S. crypto regulation remains one of the most closely watched issues in the digital asset sector. Market participants have long sought clearer rules governing token classification, trading platforms, custody, and investor protections.
Bernstein's assessment suggests that the CLARITY Act's failure may not necessarily delay regulatory progress. Instead, it could encourage federal regulators to act more decisively within their existing authority, potentially shaping the next phase of crypto oversight in the United States.
Investors and industry participants will be monitoring future announcements from both the SEC and CFTC for any new proposals or rulemaking initiatives that emerge in response.