Our Take
The author conflates legislative permanence with business readiness, then undercuts his own argument by proving incumbents already have workable conditions to move.
Why it matters
Bank treasurers and compliance officers are using regulatory gridlock as cover for inaction while crypto-native custodians expand market share. The cost of waiting is competitive, not legal.
Do this week
Compliance: map your digital asset service roadmap against the SEC-CFTC taxonomy and OCC custody guidance by end of month so you can flag gaps to your business unit that require statutory change versus those you can address now.
The regulatory clarity argument is stale
In May, Magnus Mareneck published a fair critique: the CLARITY Act would deliver statutory durability that SEC and CFTC interpretive guidance cannot match. He's correct on the law. But the article's own evidence demolishes the waiting argument.
The joint March guidance from the SEC and CFTC, paired with the OCC's moves on custody and distributed ledger participation, produced a shared five-part token taxonomy. Both agencies recognize it as the basis for how securities laws and the Commodity Exchange Act apply in practice. This is not placeholder guidance. For custodians and banks, the classification framework now exists to determine which infrastructure path an asset should follow, which controls apply, and how regulatory treatment might change over time.
Three data points matter here. BNY Mellon, founded in 1784 and not historically an early regulatory risk-taker, had a presence at Consensus Miami this year. State Street has been expanding digital asset capabilities for years. JPMorgan's blockchain infrastructure, Kinexys, predates most of the regulatory clarity that now exists. None waited for a statute. All determined that workable conditions had arrived and moved.
The real choice is between acting and falling behind
The framing in favor of waiting treats legislative passage as a binary event after which participation becomes possible. It ignores what crypto-native custodians have already proven. Those firms built foundational infrastructure (prime brokerage, settlement networks, custody platforms) under conditions far more ambiguous than any incumbent bank faces today. They never had a five-part taxonomy endorsed by both the SEC and CFTC. They never had OCC confirmation that custody and stablecoin activities were permissible without prior supervisory sign-off.
They built anyway. No bill signing will remove the head start that decision granted.
Mareneck is correct that secondary market problems remain partially unresolved and that CLARITY's explicit exemptions for qualifying digital commodity transactions would remove real residual risk. Statutory definitions would help. But the choice facing incumbent institutions is not between current guidance and the CLARITY Act. It is between acting on current guidance and falling further behind firms that have been operating in this space for years and will continue to do so regardless of what Congress does.
Private industry can fill statutory gaps faster than Congress
There is a model. More than 1,000 global member institutions in the OTC derivatives industry all operate under a standardized contract called the ISDA Master Agreement. Despite its acronym, ISDA is a private trade association, not a government agency. This demonstrates that statutory absence does not prevent the industry itself from developing unified standards and taking the reins.
The agencies have done what they can within existing law. That has been enough for some of the oldest and most deliberate institutions in American finance to commit resources and start building. Waiting for legislation is a strategy with consequences. The practitioners already moving are the ones who will own the infrastructure when the market matures.