SEC & CFTC Crypto Rulemaking: Bernstein Predicts "Aggressive and Swift" Action

SEC and CFTC crypto rulemaking could accelerate after the US Senate failed to advance the CLARITY Act on September 15, 2026. 

Bernstein analysts led by Gautam Chhugani expect both agencies to pursue specific crypto rules in an “aggressive and swift” manner as regulatory attention shifts away from legislation.

The outlook matters because the SEC and CFTC already have authority to address parts of the crypto market through agency action. 

Recent developments covering crypto assets, tokenisation and market structure suggest regulatory changes can continue even without a comprehensive congressional framework.

Key Takeaways

• Bernstein expects the SEC and CFTC to accelerate specific crypto rulemaking after the CLARITY Act failed to advance.
• Potential focus areas include token classification, self-custody infrastructure, tokenisation and certain derivatives products.
• The agencies can continue rulemaking under existing authority, although legislation could establish a broader statutory framework.

Why Did the CLARITY Act Fail to Advance?

The CLARITY Act failed to advance in a US Senate procedural vote on September 15, 2026. The vote was 49-50, below the 60 votes required to move the legislation forward.

The bill was intended to establish a broader federal regulatory framework for digital assets and clarify responsibilities between US financial regulators.

Its failure does not prevent the SEC or CFTC from continuing regulatory work under their existing statutory authority. 

Instead, it removes a near-term legislative route for addressing several unresolved crypto market-structure questions.

The distinction is important because agency rulemaking and congressional legislation operate differently. 

Regulators can address specific areas within their existing powers, while legislation can create broader statutory requirements.

What Did Bernstein Predict About SEC and CFTC Crypto Rulemaking?

Bernstein analysts led by Gautam Chhugani expect the SEC and CFTC to focus on specific rulemaking following the CLARITY Act setback.

According to Bernstein's analysis, the agencies could move “aggressive and swift” to compensate for the time spent negotiating the legislation. 

The analysts expect attention on native crypto token classification, decentralised finance and self-custody infrastructure, equity tokenisation, real-world-asset perpetual futures and coordination between the SEC and CFTC.

This is a forecast from Bernstein rather than an official regulatory timetable. The final scope and timing of any future rules will depend on the agencies' formal processes.

Which Areas Could See New Crypto Rules?

Crypto Token Classification

Token classification remains one of the most important regulatory questions in the US crypto market.

The SEC has already proposed a tailored framework for certain investment contracts involving crypto assets. 

Its August 2026 Regulation Crypto Assets proposal includes exemptions from Securities Act registration requirements and a conditional safe harbour relating to the definition of an investment contract.

The proposed framework could provide additional clarity around how certain digital assets and transactions are treated under federal securities laws.

Further regulatory action could build on these efforts by providing more specific treatment for different categories of digital assets.

Self-Custody and DeFi Infrastructure

Bernstein also identified decentralised finance and self-custody infrastructure as areas that could receive regulatory attention.

Self-custody raises different questions from traditional financial services because users can control their own assets through blockchain-based wallets rather than relying on a conventional intermediary.

Future rules or guidance could therefore help determine how existing securities and commodities requirements apply to different types of crypto infrastructure.

The exact approach remains uncertain because Bernstein's comments describe an expected direction rather than a confirmed SEC or CFTC proposal.

Tokenisation

Tokenisation has already become a concrete area of SEC action.

On September 17, 2026, the SEC approved a temporary, conditional Innovation Exemption allowing limited trading of certain tokenised securities under specified conditions.

The move demonstrates that the SEC can address blockchain-based financial infrastructure through existing regulatory mechanisms without waiting for comprehensive legislation.

It also provides a current example of the type of regulatory action that could become more prominent following the CLARITY Act setback.

Read Also: SEC and CFTC Team Up to Reshape Crypto Trading

What Is the SEC's Regulation Crypto Assets Proposal?

The SEC's Regulation Crypto Assets proposal is designed to create a tailored offering regime for certain investment contracts involving crypto assets.

The proposal includes exemptions from Securities Act registration requirements. One would cover offerings of up to $5 million over a four-year period, while another would cover offerings of up to $75 million during each 12-month period, subject to proposed requirements.

The proposed framework would also require principles-based disclosures and retain federal securities-law protections against fraud and market manipulation.

Importantly, this remains a proposal rather than a final rule. The SEC set October 20, 2026, as the deadline for public comments, meaning the final framework could differ from the current proposal.

What Could the CFTC Do?

Bernstein expects the CFTC to play a significant role alongside the SEC as US crypto regulation develops.

The analysts specifically highlighted potential action involving real-world-asset perpetual futures and greater coordination between the two agencies on certain financial products.

The SEC and CFTC have already taken steps towards greater coordination on crypto-related regulatory matters.

However, there is currently no single confirmed CFTC timeline covering all of the areas identified by Bernstein. Any future rulemaking would still need to follow the agency's applicable regulatory procedures.

What Does the CLARITY Act Setback Mean for Crypto Regulation?

The failed Senate vote shifts more attention towards regulatory action that can take place under existing law.

This does not mean that a comprehensive legislative framework is permanently off the table. 

It means that the immediate regulatory path is more dependent on agencies using their existing authority while congressional negotiations remain unresolved.

For the crypto industry, the difference between the two approaches is significant.

Agency rulemaking can address specific issues without requiring a new act of Congress. 

Legislation, by contrast, can establish statutory responsibilities and market structures that agencies must follow.

The current situation therefore creates a regulatory environment where agency action and future legislative efforts can continue on separate tracks.

Read Also: CFTC and SEC Launch Joint 'Crypto Sprint'

How Could SEC and CFTC Rulemaking Affect Crypto Markets?

Regulatory decisions can influence how digital assets are issued, structured and treated under US financial laws.

Clearer token classifications could reduce uncertainty for projects and market participants. 

Rules covering tokenised securities could also establish clearer requirements for blockchain-based representations of traditional assets.

At the same time, new rules can create additional compliance obligations. Companies and developers may need to change disclosures, product structures or operational processes depending on the final requirements.

For investors, the distinction between confirmed rules and forecasts remains important. Bernstein's analysis identifies areas where it expects regulatory activity, but those expectations should not be treated as final policy.

What Is the SEC and CFTC Crypto Rulemaking Timeline?

There is no single confirmed timeline for SEC and CFTC crypto rulemaking.

Several SEC initiatives are already moving through established regulatory processes. The Regulation Crypto Assets proposal was issued in August 2026, with public comments due on October 20.

The SEC also approved its temporary Innovation Exemption on September 17, 2026, covering certain tokenised securities under specified conditions.

Bernstein's September 16 analysis suggests that the failed CLARITY Act vote could encourage regulators to move faster on additional areas.

The result could be a series of individual rules, proposals, interpretations and exemptions rather than one comprehensive regulatory event.

Read Also: CLARITY Act and Its Role in Disrupting the Crypto Market

What Does This Mean for Bitrue Users?

US regulatory developments can affect the broader crypto market by changing how digital assets and related financial products are treated.

The areas most relevant to monitor include token classification, self-custody, tokenisation and regulatory coordination between the SEC and CFTC.

However, regulatory developments should not automatically be interpreted as positive or negative for crypto prices. Their effects depend on the specific rules, implementation requirements and how market participants respond.

For Bitrue users, following confirmed regulatory announcements rather than relying solely on forecasts can provide a clearer view of how the US crypto framework is developing.

Conclusion

The CLARITY Act's failure to advance has placed greater attention on SEC and CFTC crypto rulemaking. 

Bernstein expects the agencies to move aggressively and swiftly on specific regulatory issues, including token classification, self-custody, tokenisation and selected derivatives products.

The SEC is already demonstrating that agency-level action can continue independently of comprehensive legislation. 

With several regulatory initiatives underway, the next stage of US crypto policy could develop through a combination of targeted agency rules and continued congressional efforts.

FAQ

What is SEC CFTC crypto rulemaking?

SEC CFTC crypto rulemaking refers to regulatory actions by the US Securities and Exchange Commission and Commodity Futures Trading Commission concerning digital assets and related financial activities.

What did Bernstein predict about SEC and CFTC rulemaking?

Bernstein analysts led by Gautam Chhugani expect the SEC and CFTC to pursue specific crypto rulemaking in an “aggressive and swift” manner following the CLARITY Act setback.

Why did the CLARITY Act fail to advance?

The CLARITY Act failed to advance in a September 15, 2026 Senate procedural vote, receiving 49 votes in favour and 50 against, below the 60 votes required.

Which crypto areas could regulators address next?

Bernstein identified token classification, decentralised finance, self-custody infrastructure, tokenisation, real-world-asset perpetual futures and coordination between the SEC and CFTC as potential areas of focus.

Is SEC crypto rulemaking already underway?

Yes. The SEC has proposed Regulation Crypto Assets and approved a temporary Innovation Exemption covering certain tokenised securities. Both developments occurred in 2026.

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