US Crypto Regulation After CLARITY: What Regulates Crypto Now?

On 15 September 2026, the US Senate voted 49 to 50 against invoking cloture on H.R. 3633, the Digital Asset Market Clarity Act. Sixty votes were required, so the bill did not advance. Importantly, this was a procedural vote on whether to proceed with the legislation, not a final vote on the substance of the CLARITY Act.

For crypto markets, however, the timing could hardly have been more interesting. Just two days later, the SEC issued a five-year conditional exemption allowing qualifying venues to facilitate trading in tokenised US stocks through permissioned automated market makers. On the same day, the CFTC expanded no-action relief for passive software providers connecting users to regulated derivatives markets. The CFTC also moved a broader crypto market rulemaking into the federal review process.

The US therefore did not suddenly lose its crypto regulatory framework when CLARITY stalled. Instead, the centre of gravity shifted. Congress was unable to consolidate the rules into one statutory framework, so regulators are increasingly building the market through exemptions, no-action positions and rulemaking under their existing authority.

The most important consequence of the failed vote is not that crypto became unregulated. It is that the market lost a potential statutory framework that could have provided greater durability across the SEC, CFTC and other parts of the financial system.

That distinction matters for institutions. A regulatory exemption can make an activity permissible today, but a statute can provide a different degree of clarity over the life of an infrastructure investment. A bank deciding whether to spend millions building custody, trading or settlement infrastructure cares about whether the regulatory basis for that business is likely to survive changes in agency policy and regulation.

This is why the failure of CLARITY may be viewed less as a removal of regulatory clarity and more as a change in how clarity will be delivered. Instead of one congressional framework settling the perimeter, the SEC and CFTC are defining individual pieces of the market themselves.

And they have already started.

On 17 September, the SEC issued Release 34-106402, creating a temporary conditional exemption for Tokenized Securities Venues, or TSVs. The exemption allows qualifying venues to facilitate secondary trading in tokenised NMS stocks using permissioned automated market makers and liquidity pools without being treated as exchanges under the normal Exchange Act definition. Certain liquidity providers can also receive conditional relief from the “dealer” definition.

The details are more important than the headline. The SEC is not opening the door to an unrestricted market for synthetic stock tokens. The tokenised security must represent the same underlying security and provide holders with the same relevant rights and privileges. The venue must also establish standards governing who can access its liquidity pools. The exemption is temporary and expires five years after publication.

One particularly important provision concerns third-party tokenisation. Where an unaffiliated party tokenises an NMS stock, the TSV must give the issuer an opportunity to object before making the token available for trading. This means tokenising a security and obtaining access to a regulated US trading venue are two separate questions. The blockchain can represent the asset, but the regulated market still determines whether that representation can actually trade.

The SEC has created a legal pathway, through an exemption, for AMM-based securities trading, but it has also constrained the scale at which those pools can operate.

The exemption imposes limits on the number of securities and the volume that can be traded through the relevant venues. The order includes different volume thresholds for different tiers of stocks, including 0.25% and 2.5% of average daily volume depending on the applicable tier.

That makes the institutional economics interesting. An AMM can provide continuous onchain liquidity and may be useful for smaller trades, algorithmic execution and markets where traditional infrastructure is fragmented. But an institution executing a large block cannot simply assume that an AMM pool can absorb unlimited volume.

The SEC has therefore not replaced the existing capital-markets architecture. It has created a controlled bridge between that architecture and blockchain-based liquidity.

The CFTC is taking a similar approach from the derivatives side. On 17 September, its Market Participants Division issued Staff Letter 26-25, providing conditional no-action relief to providers of passive software.

The relief applies where software facilitates users’ trading with registered futures commission merchants, introducing brokers or designated contract markets. Subject to the conditions of the letter, the software provider may not have to register as an introducing broker or associated person merely because its software provides this access.

The word passive is critical. The relief is not a blanket exemption for every DeFi derivatives application. The provider has to remain within the conditions of the staff position, which are designed around software that facilitates access rather than becoming the regulated intermediary itself.

This creates an interesting model for DeFi. The front end or wallet can remain non-custodial, while the regulated derivatives transaction still connects to an FCM, introducing broker or designated contract market. In simple terms, the software does not necessarily need to become the broker if a regulated intermediary remains responsible for the regulated market activity.

Taken together, the SEC and CFTC actions point towards a common architecture, even though they regulate different markets.

The SEC is dealing with tokenised securities and is placing conditions around the venue, participants, liquidity and underlying security. The CFTC is dealing with derivatives interfaces and is providing a pathway for passive software to connect users to registered intermediaries. In both cases, the blockchain itself is not necessarily the point of regulation. Instead, regulators are identifying the access layer where blockchain infrastructure meets a regulated financial product.

This is potentially more important than either exemption on its own.

A regulator does not necessarily need to make an open blockchain permissioned if it can make access to a regulated security or derivative permissioned. A wallet can remain self-custodial. A blockchain can remain public. Smart contracts can remain deployed on public infrastructure. But the venue, intermediary, issuer or interface connecting that infrastructure to regulated markets will likely carry the compliance obligations.

rather than trying to regulate every piece of decentralised infrastructure directly, regulators can impose obligations on the identifiable institutions sitting around it.

The CFTC is also working on something broader. On 17 September, it submitted RIN 3038-AF80, “Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets,” to the White House’s Office of Information and Regulatory Affairs. As of 23 September, it remains listed as pending review at the prerule stage.

For now, the filing should not be interpreted as  finished market structure. The CFTC is signalling that it intends to explore how its existing authority can be applied to crypto markets rather than waiting for Congress to establish an entirely new framework.

For institutions, this means the next important document is not the filing itself. It is the eventual proposed rule and the definitions, market structures and activities it actually covers.

For institutions, the regulatory map is becoming more granular.

The question is no longer simply whether “crypto” is regulated. Institutions increasingly need to ask and evaluate which asset is being traded, who issued it, who records ownership, who provides liquidity, who operates the venue, who executes the transaction and who carries the regulatory responsibility when something goes wrong.

That distinction is particularly important for tokenisation. Putting an asset on a blockchain changes the technology used to represent and transfer it, but it does not automatically remove the legal rights and restrictions attached to the underlying asset. The SEC’s treatment of issuer objections, trading limits, investor rights and permissioned venues makes that explicit.

The institutional question is therefore not simply “put everything onchain”. It is to determine which parts of the existing financial system need to remain regulated and which parts of the infrastructure can become blockchain-native.

That could eventually produce a hybrid market structure in which the settlement and liquidity technology is different from today’s infrastructure, while the regulatory responsibilities remain recognisable to banks, exchanges and regulators.

Figure 1: Key US Crypto Regulatory Developments After the CLARITY Act

Source: SEC, CFTC and OIRA; AMINA analysis, as of 23 September 2026.
The next phase of US crypto regulation is therefore likely to be less about one dramatic piece of legislation and more about how these individual regulatory components fit together.

Information provided herein is for education purposes only. The position may vary depending on applicable law, and relevant regulatory approvals, licenses or other regulatory actions, among other things. It does not constitute legal, tax or regulatory analysis or advice. Readers should consult the relevant original source materials and obtain professional advice where appropriate.

The US Senate did not vote to make crypto illegal. It failed to advance the CLARITY Act.

What followed was arguably more revealing. Within 48 hours, the SEC had opened a controlled pathway for tokenised stocks, while the CFTC had broadened the regulatory pathway for passive software accessing derivatives markets. At the same time, the CFTC began the formal process for a broader crypto market rulemaking.

The emerging model is therefore not crypto versus regulation. It is a financial system in which blockchain infrastructure can increasingly sit underneath regulated products, provided there is a clearly identifiable point of accountability around the access layer.

For crypto-native firms, that could mean the critical question is where the regulatory boundary sits within the stack. For institutions, it is whether that boundary provides enough certainty to justify deploying capital at scale.

CLARITY failed to provide the US with a durable statutory framework. It did not stop the regulatory build-out. It simply moved the construction site from Congress to the regulators.

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