CLARITY Act Status After the September 2026 Cloture Vote

Video transcript

The CLARITY Act stalled in the Senate in September 2026, but it is not dead. Either way, the work is the same: show who controls your protocol.

The House passed it in July 2025, and Senate Banking reported a substitute on June 1, 2026. Cloture then failed, and Senator Tillis moved to reconsider.

The vote was 49 to 50, with 60 needed in a full Senate. Another vote is possible, but no date is set. The bill is not law.

Both versions ask whether anyone controls the system. The Senate swaps the House's mature blockchain test for coordinated control, defined by SEC rule.

The SEC would weigh five indicia: open code, permissionless use, no holder above 49 percent, autonomous operation, and working value mechanisms.

A system falls outside the DeFi definition if someone can control or censor it. The text also covers security councils, good faith holds, and a voluntary NIST program.

Meanwhile, the SEC asks the same questions through its March 2026 interpretation, staff FAQs and proposed Regulation Crypto Assets, not yet adopted.

Build the record today: every privileged role and its holder, key status, governance records, and a dated history of every upgrade. Issuers and service providers need hold tooling too.

Guardian maps every privileged role and upgrade path from your deployed contracts. Read the full article, or talk to Guardian at guardian.security.

The crypto market structure bill stalled in the Senate on September 15, 2026. It is not dead: a motion to reconsider was entered the same day.

The SEC applies control tests of its own. Under either path, the engineering work is the same: show who can change, pause or censor your system.

This article explains the technical and security side of H.R. 3633, the Digital Asset Market Clarity Act, as reported in the Senate. It is not legal advice; confirm how it applies to you with counsel.

Where the Bill Stands

Congress.gov and GovInfo's bill status file, last updated September 17, 2026, list nothing later.

As of November 5, 2026, the bill is pending on the Senate calendar. It is not law.

What a Motion to Reconsider Does

Senate Rule XIII lets a senator who voted with the prevailing side move to reconsider a decided question. The Defiant reported that Tillis voted no to keep that option open.

The motion is decided by majority vote. If it carries, the Senate votes on cloture again.

Under Rule XXII, cloture needs three-fifths of senators duly chosen and sworn: 60 with a full Senate. The September vote fell 11 short.

Cloture here would only end debate on taking up the bill. Both chambers must then agree to the same text before it can become law. The record sets no date for a second vote.

What the Senate Text Changed

Both versions ask whether anyone controls the system. They ask it differently.

Five indicia of coordinated control

Section 104(b) lists five indicia the SEC must consider when it defines coordinated control. Read as facts a team would want to show:

• Open: protocol and source code freely available, with the code recorded onchain.
• Permissionless: no one can unilaterally restrict or censor use; no hard-coded privileges favoring some users.
• Distributed: no person or group holds over 49 percent of tokens or governance votes.
• Autonomous: no one can unilaterally alter functionality, operation or consensus rules.
• Economically independent: the mechanisms meant to accrue value to the token work.

The SEC could deny a certification later after a material change in circumstances, so the record has to stay current.

Three DeFi exclusions

Section 601 adds Exchange Act section 15H. A DeFi trading protocol runs on predetermined, non-discretionary rules, and no one but the user holds the assets.

A system falls outside that definition if:

• A person or group can control or materially alter its functionality, operation or consensus rules.
• It does not run solely on pre-established, transparent rules in its source code.
• A person or group under common control can unilaterally restrict, censor or prohibit its use.

Section 301 has the SEC write rules for whoever controls a protocol that fails these tests. A decentralized governance system is not treated as a person or group.

Security councils

Sections 104 and 301 make narrow room for security council emergency powers. An emergency measure alone does not establish control if it is:

• Pre-defined, temporary and rules-based.
• Used only for a specific, documented incident or imminent threat.
• Authorized through publicly disclosed onchain mechanisms.
• Strictly limited in scope and duration.
• Exercised without unilateral control by any single person.
• Documented publicly, sufficiently in advance.

Section 301 adds that these powers cannot carry upgrades, governance decisions or economic changes unrelated to the incident.

Temporary holds and a NIST program

Temporary holds (Section 305). Stablecoin issuers and digital asset service providers that delay a suspect transaction or withdrawal in good faith get protection from private lawsuits.

A hold lasts up to 30 days, extendable by 150 on a qualified written request from law enforcement. Records of its basis are kept for three years.

Voluntary cybersecurity program (Section 306). NIST, consulting the SEC and CFTC, would set criteria for DeFi trading protocols after a request for information on threats and code audits.

Teams that qualify could display a NIST designation or seal. Agencies writing related rules or guidance must consider adoption as evidence of good-faith compliance.

The Administrative Path Meanwhile

Without a statute, the SEC applies control tests itself.

Our central party post maps the staff's examples to contract roles. Our comparison of decentralization tests sets the SEC beside the FCA, MiCA, FATF and IOSCO.

For the disclosure items, see Regulation Crypto Assets explained.

What to Prepare Now

The Senate text names the control facts plainly. Each phrase points to a record you can build today.

Then turn it into a record:

1. Role inventory: every privileged function on every chain, read from deployed contracts.
2. Key status: EOA, multisig, timelock or governor; threshold; signer affiliations.
3. Governance records: each proposal, its vote and its execution transaction.
4. History: every role grant, upgrade and parameter change since launch, dated.
5. Hold tooling: for issuers and service providers, a way to delay one transaction and log why.

Stamp each item with a block number. The same record serves either path.

How Guardian Helps

Guardian's regulatory and compliance work builds this record as technical evidence.

Its privileged role and upgrade path map covers every role that can move value, upgrade, pause, freeze or change parameters. Each comes with its holder, threshold and timelock, read from the deployed contracts.

Deployment verification matches deployed bytecode to the audited commit. Contract configuration drift dates every change to roles, parameters and upgrades, and risk monitoring tracks it.

Your counsel owns the legal reading.

Frequently Asked Questions

Did the CLARITY Act fail in the Senate?

Not finally. On September 15, 2026, the Senate did not invoke cloture on the motion to proceed, 49 to 50. Senator Tillis entered a motion to reconsider, so the Senate can vote again. The bill remains on the Senate calendar.

Is the CLARITY Act law?

No. The House passed H.R. 3633 on July 17, 2025, and the Senate Banking Committee reported a substitute on June 1, 2026. The Senate has not passed it, and the record shows no action after September 15, 2026.

What decentralization test does the Senate version use?

Coordinated control, which the SEC would define by rule using five indicia: open code, permissionless use, no holder above 49 percent, no unilateral power to alter the system, and working value mechanisms. DeFi trading protocols face three similar exclusions.

What should protocol teams do while the bill is stalled?

Build a dated record of every privileged role and its holder, every pause or censorship power, emergency procedures and governance history. The SEC's interpretation and staff FAQs ask about the same control facts today.

Sources

• Congress.gov: H.R. 3633, Digital Asset Market Clarity Act, all actions (latest action Sept. 15, 2026)
• GovInfo: H.R. 3633 bill status record (updated Sept. 17, 2026)
• GovInfo: H.R. 3633, reported in the Senate with an amendment, Calendar No. 423 (June 1, 2026)
• GovInfo: H.R. 3633, engrossed in the House (July 2025)
• GovInfo: Standing Rules of the Senate, S. Doc. 113-18, Rules XIII and XXII (2013)
• GovInfo: How Our Laws Are Made, H. Doc. 110-49 (2007)
• The Defiant: Senate Blocks CLARITY Act 49-50 With No Democratic Votes to Proceed (September 2026)
• Federal Register: Release No. 33-11412, Application of the Federal Securities Laws to Certain Types of Crypto Assets, 91 FR 13714 (Mar. 23, 2026)
• SEC Division of Corporation Finance: Frequently Asked Questions on crypto assets (issued Sept. 25, 2026; updated Nov. 2, 2026)
• Federal Register: Regulation Crypto Assets, proposed rule, 91 FR 54510 (Aug. 21, 2026)