Federal regulators are likely to drive the next phase of U.S. crypto policy while Congress struggles to establish a durable market-structure framework, according to Maylea Ma, deputy general counsel at 1inch. Speaking as the November 3 midterm elections were unfolding, Ma identified the SEC, CFTC and Treasury as the institutions most likely to produce meaningful regulatory movement over the coming years. Her assessment has gained additional relevance after Democrats won control of both chambers of Congress, setting up divided government once the new Congress takes office in January.
Ma’s argument is not that Congress has become irrelevant. She said the longer-term objective remains “a statute that cannot be reversed every time a government changes,” reflecting the industry’s preference for legislation over regulatory positions that can evolve between administrations. The distinction is durability: agency guidance and rulemaking can address immediate regulatory gaps, while Congress can establish statutory boundaries that regulators themselves cannot simply rewrite.
SEC and CFTC Already Move Without CLARITY
That agency-led framework is already taking shape. In August, the SEC formally proposed Regulation Crypto Assets, which would create tailored exemptions for certain crypto-related investment-contract offerings and a conditional safe harbor. The CFTC followed in October with an advance notice of proposed rulemaking for crypto-asset markets under its existing Commodity Exchange Act authority. Both initiatives show regulators using powers they already possess rather than waiting for Congress to complete comprehensive legislation.
That shift became more visible after the Senate’s failure to advance the CLARITY Act shifted attention toward SEC and CFTC rules. The September 15 procedural vote failed 49-50, leaving H.R. 3633 short of the 60 votes needed to invoke cloture on the motion to proceed. The vote stalled the bill but did not constitute final rejection, with Sen. Thom Tillis preserving a procedural route for reconsideration.
CLARITY would have created a more explicit statutory division between securities and commodities oversight, reducing the extent to which jurisdiction depends on agency interpretation. Its failure therefore leaves greater practical importance with regulators operating under existing statutes. That institutional balance is also affected by personnel: the SEC entered October with only Chairman Paul Atkins and Commissioner Mark Uyeda remaining after Hester Peirce’s departure. Agency leadership and composition can consequently matter more when legislation leaves major policy questions unresolved.
Treasury Adds a Separate Stablecoin Track
Treasury is already operating under a different legal framework because payment stablecoins received congressional legislation through the GENIUS Act. In August, Treasury issued a proposed rule governing payment-stablecoin issuance and distribution, while FinCEN and OFAC have separately proposed AML and sanctions requirements. Stablecoin policy therefore illustrates the contrast between implementing an enacted statute and regulating broader crypto markets without equivalent market-structure legislation.
The resulting framework is already beginning to reshape competition among issuers as the GENIUS Act moves the U.S. stablecoin market toward its 2027 implementation phase. Treasury’s authority in that area comes from legislation already passed by Congress, giving its rulemaking a clearer statutory mandate than regulators have across many other digital-asset activities. That difference helps explain why industry participants continue to distinguish regulatory progress from lasting legislative clarity.
Michael Ho, co-founder of D3 and part of the team behind Doma Protocol, made a similar argument, saying the stalled market-structure bill leaves crypto companies dependent on agency positions that later administrations may alter. He linked that uncertainty specifically to institutional participation in tokenized real-world assets. His claim that regulatory uncertainty keeps capital waiting is an industry assessment rather than a measurable capital-flow finding, but it captures the concern surrounding long-duration products built under evolving legal interpretations.
The Democratic midterm victory adds another layer rather than replacing this agency-driven trajectory. A Democratic Congress can conduct oversight, pursue new legislation and challenge administration priorities, while President Trump retains executive authority and veto power. For the immediate regulatory cycle, U.S. crypto policy is therefore likely to remain split between agency rulemaking under existing law and a renewed congressional fight over whether those rules should eventually be replaced or reinforced by a comprehensive statute.
