Both agencies have proposed rules that appear to be attempting to take the place of legislation from Congress in regulating cryptocurrencies.
The SEC proposed rules to provide companies with a safe harbor from tokens being treated as “investment contracts” in August, and the CFTC followed suit in October, with Selig saying the agency would use its “existing statutory authorities“ to address crypto regulation through proposed rules on exchanges. Atkins added on Oct. 2 that “more regulatory proposals [were] on the horizon” for crypto.
Could one SEC commissioner have the final say on crypto rules?
On Sept. 30, the SEC made these regulatory avenues even easier with a lack of commissioners. The agency released a final rule which went into effect on Oct. 2 that it said amended quorum requirements for what it called “promot[ing] flexibility and finality of agency rulemaking.” The rule reduces the number of commissioners required for a quorum to just one person if only two are present in many cases.
“[…] with now just two commissioners around and it being entirely possible that one of them might have to recuse themselves from an issue (or be otherwise MIA), just one is now enough to pass a formal rule that applies to America’s vast multitrillion-dollar securities markets,” wrote Robin Wigglesworth in an Oct. 5 op-ed for the Financial Times.
Uyeda responded in his own Financial Times op-ed on Sunday, claiming that the SEC’s “commitment to its mission remains unchanged” despite having only two commissioners and no announcement from Trump about additional nominations to fill the empty seats. The policymaker said that the rule change “clarifies that the Commission can establish a quorum if all but one commissioner is disqualified from a matter.”
“Suggesting that the SEC is ‘hastily revamp[ing]’ its quorum rule so that the remaining commissioners can ‘have their way’ makes for a colourful comparison to fictional dystopian regimes but misleads readers about why the Commission revised its quorum rule and why it’s for the better,” said Uyeda.
As of Tuesday, the White House had not announced any nominations for the SEC and CFTC, potentially leaving the rulemaking process in the hands of just one person at each agency for months, if not longer. Congress still has time to vote on the market structure bill at the center of the controversy, the Digital Asset Market Clarity (CLARITY) Act, but some experts don’t see lawmakers advancing the legislation in a lame duck session between the 2026 midterm elections and when the next session is sworn into office in January.