The Digital Asset Market Clarity Act never reached the Senate floor for debate. On Sept. 15, cloture on the motion to proceed to H.R. 3633 failed 49–50, eleven votes short of the 60 required. Every yes vote came from a Republican. Sens. Josh Hawley (R-Mo.), Susan Collins (R-Maine) and Jerry Moran (R-Kan.) voted no, and Sen. Thom Tillis (R-N.C.) also voted no in what American Banker described as a procedural move.
The bill was meant to divide crypto oversight between the SEC and the CFTC by statute. Without it, the two agencies are doing that division themselves, by rulemaking and exemptive order. Since the vote, the Federal Register has carried a CFTC advance notice on crypto markets and an SEC crypto custody proposal, joining an SEC offering-exemption proposal whose comment period ends Oct. 20.
1. How the bill died
The House passed H.R. 3633 on July 17, 2025, by 294–134 (Roll Call 199), with 78 Democrats voting yes. The Senate Banking Committee advanced a substitute 15–9 on May 14, 2026, with Democratic Sens. Ruben Gallego and Angela Alsobrooks in favor. The market-structure text was not what sank it on the floor. Negotiations broke down over ethics language: Democrats wanted an enforceable bar on the president, senior officials and their families profiting from crypto, and Republicans would not agree to the version Democrats sought.
Sen. Ruben Gallego (D-Ariz.), one of the committee yes votes, put it bluntly, as quoted by American Banker: “The legislation failed squarely because Republicans refuse to say no to the president.” The bill’s backers pointed to the ethics section already in the text; critics said it was drafted narrowly, reaching mainly the issuance or sponsorship of new tokens by officials and leaving other crypto income untouched. With the midterms on Nov. 3 and the 119th Congress ending in January, the bill would have to be reintroduced in the 120th.
2. The agency docket
| Agency | Action | Identifier | Comments due |
|---|---|---|---|
| SEC | Regulation Crypto Assets (proposed) | Rel. 33-11434; 34-106150; File S7-2026-27 | Oct. 20, 2026 |
| SEC | Adviser and fund custody rules; crypto custody (proposed) | Rel. IA-7023; IC-36353; File S7-2026-35 | Dec. 7, 2026 |
| CFTC | Advance notice: crypto asset transactions and markets | RIN 3038-AF80; 91 FR 64811 | Dec. 14, 2026 |
| SEC | Exemptive order for trading venues in tokenized NMS stocks | Rel. 34-106402; 91 FR 60168 | Order in effect |
The SEC’s Regulation Crypto Assets would create two exemptions from Securities Act registration for offerings tied to crypto assets: up to $5 million over four years, and up to $75 million in any 12-month period, the latter with financial statements and ongoing reporting. It also proposes a conditional safe harbor under which a qualifying crypto asset “would be deemed not to be subject to an investment contract,” meaning it would not be a security on that basis. That is the closest the agency can come by rule to the token taxonomy CLARITY would have written into law.
The CFTC’s piece is earlier in the process. Its Oct. 13 notice is an advance notice of proposed rulemaking, not a proposal.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is issuing an advanced notice of proposed rulemaking regarding section 2(c)(2)(D) of the Commodity Exchange Act (“CEA” or “Act”) to provide notice and seek public comment on its intent to develop and establish fit-for-purpose rules implementing section 2(c)(2)(D) of the Act with respect to transactions and markets in crypto assets.
EXCERPT · CFTC, 91 FR 64811 (Oct. 13, 2026), Summary
Rules can sort tokens into boxes. Only Congress can build the boxes.
3. What rulemaking cannot do
Rules can sort tokens into boxes. Only Congress can build the boxes. An advance notice means at least one more proposal and comment round before anything binds. Troutman Pepper Locke, in a Sept. 25 analysis, put a binding CFTC rule no earlier than late 2027. The firm also listed what agency action cannot supply: the CFTC has no statutory power to license spot crypto exchanges, brokers and dealers, only anti-fraud and anti-manipulation authority over those markets; bankruptcy priority for customers’ digital commodities needs a Bankruptcy Code amendment; and anything an agency writes, a later commission can unwrite.
There is also a capacity question. The SEC has been down to two commissioners, Chairman Paul Atkins and Commissioner Mark Uyeda, since Hester Peirce left on Oct. 2. Peirce led the agency’s crypto task force. The commission can still act, but every crypto rule it finalizes will be adopted by a two-member Republican commission, which a future majority may view as an invitation to revisit.
4. What to watch
- Oct. 20: comments close on Regulation Crypto Assets (File S7-2026-27).
- Nov. 3: midterms. The composition of the next Senate decides whether a CLARITY rewrite has 60 votes.
- Dec. 7: comments close on the SEC custody proposal.
- Dec. 14: comments close on the CFTC’s advance notice.
- January 2027: the 120th Congress convenes. Any market-structure bill starts over.
- Final Vote Results for Roll Call 199, H.R. 3633 (July 17, 2025) — Office of the Clerk, U.S. House of Representatives · clerk.house.gov
- Crypto market structure bill fails in Senate vote, 49-50 — American Banker · americanbanker.com
- Regulation Crypto Assets, Release Nos. 33-11434; 34-106150, 2026-17183 — Federal Register · federalregister.gov
- Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets, 2026-20888 — Federal Register · federalregister.gov
- Adviser and Regulated Fund Custody Rules; Crypto Custody Rules, 2026-20466 — Federal Register · federalregister.gov
- In the wake of CLARITY Act's failure, agencies move forward without congressional action or certainty — Troutman Pepper Locke · troutman.com
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