The Senate didn’t kill the crypto bill — it just gave us a chance to save it

The CLARITY Act provides much of what the digital asset industry has been seeking for a long time, such as a clear definition of digital commodities, a jurisdictional line between the Securities and Exchange Commission and the Commodity Futures Trading Commission, and registration categories that reflect how tokens are currently traded. 

But the framework is entirely forward-looking. The bill sets the new rules of the road for the future of the digital assets ecosystem, but leaves unresolved what happens to transactions that occurred before those rules existed. This reality would expose major companies and market participants to private lawsuits using the regulatory framework that Congress is now in the process of replacing. 

Congress has faced a similar roadblock before. The Adjustable Interest Rate Act, enacted in 2022 as Division U of that year’s Consolidated Appropriations Act, paired a statutory transition process for legacy contracts with an express liability safe harbor in Section 105. That safe harbor protected parties who followed the statute’s transition rules from being sued over the switch itself. Fraud claims and other misconduct claims stayed fully intact. The bill passed with bipartisan support, ending years of regulator warnings about “tough legacy” contracts.