Bernstein Sees SEC/CFTC ‘Aggressive’ Rulemaking After CLARITY Act Fails

The U.S. Senate’s failure to advance the Digital Asset Market Clarity (CLARITY) Act has prompted expectations of faster, more direct rulemaking from the SEC and CFTC, according to analysts at Bernstein. With the bill not moving forward after a cloture vote on Tuesday, Bernstein said regulators are likely to “make up for the time lost” in developing their own frameworks for crypto markets.

In a Wednesday note shared with Cointelegraph, Bernstein argued the shift could still deliver meaningful regulatory guidance for the industry, even if the legislative approach that would have “fool-proofed the industry against political regime shifts” did not materialize. The analysts expect new agency rules to address issues ranging from how tokens are categorized to how certain decentralized finance (DeFi) activities might be treated.

Key takeaways

• With CLARITY failing to clear a cloture vote, Bernstein expects the SEC and CFTC to accelerate rulemaking instead of relying on a new statutory framework.
• New guidance may include token taxonomy for fundraising and investor protections aimed at developers and self-custodial protocols.
• Bernstein anticipates “innovation exemptions” that could support equity tokenization efforts under defined conditions.
• The SEC’s earlier proposal to clarify treatment of certain “investment contracts” provides a starting point for how regulators may structure safer harbors.

Why CLARITY’s setback changes the regulatory playbook

Earlier coverage from Cointelegraph noted that the U.S. Senate failed to advance the CLARITY Act after a cloture motion did not pass on Tuesday. The bill, according to Bernstein, would have offered the country’s first dedicated regulatory framework for digital assets.

Bernstein’s central point is that the regulatory agencies now have a new timeline pressure. Rather than continuing negotiations tied to the legislation’s prospects, the SEC and CFTC are expected to publish regulations meant to provide clarity more immediately. Bernstein also suggested that bringing the act back for another vote is unlikely, citing a limited window and concerns about ethics provisions.

For market participants, the practical implication is that uncertainty may persist—but it could shift form. Instead of waiting for Congress to define broad categories and boundaries, firms may need to adapt to agency rules that are narrower in scope yet faster to implement.

SEC groundwork: proposed rules for “certain investment contracts”

Bernstein’s expectations build on actions the SEC has already taken. On Aug. 19, Cointelegraph reported that the SEC proposed new rules to establish what the agency described as a “clear and fit-for-purpose framework for certain investment contracts involving crypto assets.” Those proposals are designed to let entities raise capital while preserving investor protection.

As reported by Cointelegraph, the SEC’s proposal includes exemptions that would allow crypto firms to issue up to $5 million in tokens over four years and up to $75 million over 12 months, along with a safe harbor intended to exempt cryptocurrencies from being treated as “investment contracts.”

Bernstein’s note implies that the agencies may use this approach as a template—tightening, expanding, or operationalizing rule details in response to the missed legislative path. Investors and token issuers, in turn, may focus on how their offerings fit within the boundaries of these frameworks, particularly around how contracts and rights are structured.

What Bernstein expects from the SEC and CFTC next

Bernstein said it expects agency regulations to cover several concrete areas for crypto businesses. The analysts highlighted token taxonomy for raising capital—an issue that matters because how regulators classify tokens can determine whether an offering or program is treated like an investment contract or falls under other regulatory categories.

Bernstein also pointed to developer protection measures for DeFi and self-custodial protocols. For builders, this could be significant: it suggests rulemaking may aim to address common architectural realities in DeFi where developers may not control user custody or operational decisions, while still addressing how investor protection principles apply.

In addition, Bernstein expected “innovation exemptions” for equity tokenization, implying regulators may carve out room for certain issuance models that resemble traditional equity structures—potentially with conditions intended to prevent broad sales practices from evading oversight.

Finally, Bernstein referenced faster approval times for real-world asset (RWA) perpetual futures and amendments to rules around federal sports even contracts and their classification as swaps. While these items are more technical and specific, they point to the agencies’ willingness to address market structure questions, not just fundraising token frameworks.

For traders and liquidity providers, the takeaway is that regulatory clarity might arrive in multiple layers: rules affecting issuance and governance may be complemented by guidance on derivative products and contract classifications.

Signals of urgency from SEC leadership

The sense that the SEC would move quickly without CLARITY is reinforced by public messaging from SEC leadership. Cointelegraph previously reported that on July 27, SEC Chair Paul Atkins told CNBC the agency was “ready, willing, and able to come out with rules” on digital assets if the Senate failed to pass the CLARITY Act.

This matters because it frames the likely regulatory response as proactive rather than reactive. If Bernstein’s expectation holds, firms should anticipate rulemaking momentum that is less dependent on congressional timing, even if the details ultimately differ from what a bill like CLARITY would have provided.

Where the picture remains uncertain is how comprehensively the agencies will harmonize their approaches across token issuance, DeFi developer responsibilities, and the treatment of derivative products. Bernstein expects a compensating wave of regulatory work, but the industry will still need to watch how the rules are finalized and how they apply in practice.

Next, market participants should monitor the SEC and CFTC for concrete drafts and timelines—especially around token taxonomy and any safe harbor or exemption mechanics that could determine how token offerings, DeFi participation, and certain derivative structures are regulated once CLARITY is off the table.