A forecast emerged that the U.S. Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) will accelerate rulemaking after a cloture vote failed in the U.S. Senate on the CLARITY bill, which would set out a framework to govern digital asset markets.

On Sept. 16, blockchain outlet Cointelegraph reported that investment bank Bernstein expected the two agencies to pursue “aggressive and swift” rulemaking to make up for time spent on negotiations over the bill.

The key is to fill the legislative gap with administrative regulation. Bernstein analysts suggested potential scope for new rules including a token classification system for capital-raising tokens, developer protections related to decentralised finance (DeFi) and self-custody protocols, innovation exemptions for equity tokenisation, shorter approval timelines for perpetual futures based on real-world assets (RWA), and revisions to rules classifying federal sports event contracts as swaps.

Bernstein said regulators would introduce rules to recoup time lost to CLARITY bill negotiations. It also assessed that such steps could provide the industry with more regulatory clarity. It added that they would be unlikely to offer the level of institutional stability that would prevent policy shifts stemming from a change in administration, as the CLARITY bill aimed to do.

The CLARITY bill would have created the first U.S. digital asset regulatory framework, but it failed to win Senate consent to end debate on Sept. 15. Bernstein said a revote was unlikely given a tight Senate schedule and concerns over the bill’s ethics provisions. As a result, the market is paying more attention to the path of separate SEC and CFTC rulemaking than to congressional legislation.

The SEC has already begun work on separate rules. On Aug. 19, it proposed new rules to create a “clear and fit-for-purpose framework” for certain investment contracts involving crypto assets. The proposal included measures that would allow fundraising while maintaining investor protection. It set out token issuance exemptions for crypto firms of up to $5 million over 4 years and up to $75 million over 12 months. It also included a safe harbour provision so certain crypto assets would not be treated as investment contracts.

The head of the SEC has already sent a message in preparation for the possibility that legislation fails. SEC Chairman Paul Atkins (폴 앳킨스) said in a July 27 CNBC interview that the agency was ready to issue rules related to digital assets if the Senate fails to pass the CLARITY bill.

The key point to watch is how far regulators can substitute for a baseline that Congress could not establish. Legislation can provide broad allocations of authority and legal stability, but agency rules can be enforced relatively quickly. The market is expected to focus on how specifically token classification standards, the scope of protections for DeFi developers, and approval procedures for tokenised products and derivatives are turned into actual rules.