With the Senate’s next procedural vote on the Digital Asset Market Clarity Act approaching, the vote count remains uncertain. Yet the most consequential development may no longer be whether Congress passes the bill. It may be what the Commodity Futures Trading Commission does if Congress does not.

The Senate’s September Test

The Senate is scheduled to reconvene on September 14, 2026. The following day, at 2:15 p.m. ET, the cloture motion on the motion to proceed to H.R. 3633—the Digital Asset Market Clarity Act—is expected to ripen. This is a procedural vote to begin considering the bill, not a vote on final passage. Invoking cloture requires 60 votes. U.S. Senate Daily Press

Republicans hold 53 Senate seats. Assuming full Republican support, the bill would still require at least seven additional votes from Democrats or Democratic-aligned independents to clear the cloture threshold.

The bill received limited bipartisan support when it advanced from the Senate Banking Committee in May. Senators Ruben Gallego and Angela Alsobrooks joined committee Republicans in supporting the measure, producing a 15–9 vote. Both senators, however, indicated that their committee votes did not guarantee support on the Senate floor if outstanding issues remained unresolved. Reuters

As of September 4, there is no publicly identified coalition sufficient to reach 60 votes.

Ethics and Stablecoin Rewards Remain Unresolved

Two issues continue to complicate negotiations: government ethics restrictions and the treatment of stablecoin rewards.

The current Senate proposal contains restrictions addressing digital-asset activities by certain public officials. Some Democrats have argued that the provisions do not go far enough, particularly regarding enforcement and potential conflicts involving senior government officials.

Senators Thom Tillis and Ruben Gallego reportedly submitted a bipartisan ethics counterproposal to the White House before the August recess. That proposal has not been publicly released, and no final agreement has been announced.

Stablecoin rewards present a separate—and commercially significant—divide. The Senate Banking Committee text generally distinguishes between:

• Payments calculated solely by reference to a stablecoin balance and functioning like interest on a bank deposit; and

• Rewards connected to bona fide transactions or activities, such as payments, transfers, remittances, liquidity provision, staking, loyalty programs, or the use of particular products and services.

The distinction is important. Banks have warned that broadly permitted rewards could encourage deposit migration from insured depository institutions. Digital-asset firms, meanwhile, argue that an overly broad prohibition could restrict legitimate payment incentives, loyalty programs, and other product features that do not operate like traditional bank interest.

Under the proposed framework, the SEC, CFTC, and Treasury would be responsible for further defining the boundary through joint rulemaking. Until the legislative language is settled—and implementing rules are issued—the legal treatment of many reward structures will remain highly fact-specific.

If CLARITY Fails, the CFTC May Act Anyway

The strategic landscape changed in August when CFTC Chairman Michael Selig announced that he had directed agency staff to explore rules that would establish a crypto-asset market structure using the CFTC’s existing statutory authority.

According to Chairman Selig, the potential framework could allow existing registrants—and possibly crypto exchanges that are not currently registered—to seek designation as a form of designated contract market, or DCM, known as a “crypto asset market.” These markets could potentially offer leveraged or margined crypto-asset trading under rules tailored to digital assets and subject to CFTC oversight.

Chairman Selig also directed staff to engage with developers of onchain financial protocols regarding pathways for offering those protocols legally in the United States. He stated that the agency would give Congress time to consider CLARITY but would move quickly to propose rules if lawmakers failed to enact the legislation. CFTC Chairman Selig’s August 20 remarks

That announcement changes the practical meaning of legislative failure.

Previously, the failure of a market-structure bill largely meant a continuation of the existing regulatory gap: overlapping SEC and CFTC positions, limited federal supervision of spot digital-commodity markets, and persistent uncertainty for exchanges, developers, token issuers, and investors.

Now, the alternative may be an agency-built framework.

Legislation and Rulemaking Are Not Equivalent

A CFTC rulemaking could provide meaningful guidance, but it would not fully replace legislation.

Congress can expressly expand the CFTC’s jurisdiction over spot digital-commodity markets, establish new registration categories, define the boundaries between securities and commodities, create statutory protections for developers, and assign responsibilities among federal agencies.

The CFTC, by contrast, must act within the Commodity Exchange Act and the authority Congress has already granted it. The agency’s strongest jurisdiction generally concerns derivatives, including futures, options, swaps, and certain leveraged or margined retail commodity transactions. Its authority over ordinary spot commodity transactions remains comparatively limited, particularly outside fraud and manipulation enforcement.

An agency-created framework may therefore rely on regulated derivatives-market structures or leveraged retail commodity authority rather than creating comprehensive supervision of all spot crypto trading.

Rulemaking would also carry different risks:

• The final rules could be challenged as exceeding the CFTC’s statutory authority.

• A future administration could revise or rescind the framework.

• Judicial review could narrow the agency’s interpretation.

• Coordination problems with the SEC, banking regulators, Treasury, and state authorities could remain.

• The resulting framework may not provide the durable developer protections, jurisdictional divisions, or preemption provisions that Congress can enact by statute.

CLARITY would offer broader and potentially more durable statutory architecture. CFTC action, however, could arrive sooner and may materially influence how digital-asset businesses structure their operations.

What Digital-Asset Businesses Should Watch

Companies should not treat September 15 as a simple pass-or-fail moment. The cloture vote is only one step in a longer legislative process. Even if the Senate agrees to proceed, lawmakers must still resolve the text, consider amendments, pass the measure, reconcile any differences with the House version, and obtain presidential approval.

Market participants should monitor two tracks simultaneously.

First, they should follow Senate negotiations concerning ethics restrictions, stablecoin rewards, developer protections, anti-money-laundering obligations, SEC–CFTC jurisdiction, and the treatment of decentralized protocols.

Second, they should prepare for possible CFTC rulemaking under existing authority. Exchanges, trading platforms, DeFi developers, intermediaries, and businesses offering leveraged or margined digital-asset products should consider how a DCM-based framework might apply to their activities.

The central question is no longer simply whether CLARITY becomes law. It is which institution—Congress or the CFTC—will shape the next phase of U.S. crypto market structure, and how durable that framework will be.

For digital-asset businesses, waiting for a final legislative outcome may no longer be sufficient. Product design, registration strategy, token classification, custody arrangements, transaction-based rewards, and compliance planning should be evaluated against both the pending legislation and the regulatory framework the CFTC may attempt to build without it.

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This blog post is for informational purposes only and is not legal advice. Please consult with a Launch Legal attorney regarding your specific situation.