The SEC’s March 2026 crypto guidance is the most comprehensive regulatory clarification the agency has issued on digital assets. But guidance is not law. And Congress is working on the law.

Two Bills, One Goal

The legislative effort to clarify the regulatory jurisdiction of the SEC and CFTC over crypto markets has been moving on parallel tracks in the House and Senate.

The House passed H.R. 3633, the Digital Asset Market Clarity Act, in July 2025. In January 2026, the Senate Banking Committee released its own draft market-structure bill after soliciting public comments on an earlier version. Reports indicate the Senate Banking Committee may hold a markup — the formal process of debating and amending a bill before a vote — as soon as April 2026.

What the Bills Have in Common

Despite differences in terminology and structure, the two bills share a core approach.

Both would create an exemption for primary-market sales of certain crypto-assets, allowing issuers to raise funds without registering the underlying investment contract as a security — subject to conditions and size limits. Issuers using this exemption would face tailored disclosure requirements for initial offerings and ongoing reporting requirements administered by the SEC.

Both would also codify the absolute separation theory for covered crypto-assets — meaning secondary-market trading in those assets would explicitly not constitute securities transactions under federal law. This is the part of the legislation with the most industry support and the most legal consequence.

Where the Bills Differ

The certification process for transitioning out of ongoing SEC oversight differs between the two bills.

Under H.R. 3633, issuers seeking to exit ongoing reporting requirements would certify the “maturity” of a blockchain system associated with their asset. Even after certification, issuers engaged in “material ongoing efforts” related to a mature network would still face narrower disclosure requirements.

Under the Senate Banking Committee draft, the certifications would center on the issuer’s ongoing efforts related to the crypto-asset — a slightly different framing that shifts focus from the network’s characteristics to the issuer’s behavior.

The CFTC’s Expanding Role

Both bills anticipate a larger role for the CFTC in secondary crypto markets. H.R. 3633 and draft legislation from the Senate Agriculture Committee would give the CFTC new regulatory authorities over spot crypto markets and the intermediaries operating in them — filling the gap left by narrowing SEC jurisdiction.

This is a significant structural shift. Currently, the CFTC’s authority over commodity spot markets is limited primarily to anti-fraud and anti-manipulation enforcement. The proposed legislation would expand that into a broader regulatory framework more analogous to what the SEC provides for securities markets.

Why the Guidance and the Legislation Are Both Necessary

The SEC’s March 2026 guidance offers real clarity — but only within the limits of existing law. Guidance can be rescinded. It doesn’t bind courts. And it can’t resolve the fundamental question of where one agency’s jurisdiction ends and another’s begins.

Legislation would fix the jurisdictional question permanently, create enforceable disclosure regimes, and give the CFTC a clear mandate for secondary market oversight. The SEC’s guidance is, in part, an attempt to show what a workable framework looks like before Congress formalizes one.

Whether the Senate moves its bill to markup in April — and whether it can reconcile with the House version — will determine how quickly the crypto industry gets the statutory clarity it has been seeking for years.

Source: Congressional Research Service Legal Sidebar LSB11415, “SEC Issues Crypto Guidance as Congress Considers Market-Structure Legislation,” April 3, 2026.