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Rob Cunningham | KUWL.show
@KuwlShow
The SEC’s Nuclear Option: A Commission-wide Digital-Asset Safe Harbor on August 14, 2026?
Section 36 of the Securities Exchange Act gives the SEC remarkably broad exemptive authority.
The SEC itself describes it this way:
“…the Commission may, by rule, regulation, or order, conditionally or unconditionally exempt persons, transactions, securities – or entire classes of them – from provisions of the Exchange Act or its rules, provided the exemption is in the public interest and consistent with investor protection.”
Imagine the Commission voting August 14 for a sweeping Digital Asset Market Transition / Innovation Exemption establishing something like:
Until Congress completes comprehensive market-structure legislation, qualifying decentralized digital assets and qualifying transactions involving them may operate under a defined federal safe harbor and tailored securities-market framework, rather than being forced through securities rules designed for conventional issuers and intermediaries.
That would not literally enact the CLARITY Act. The SEC cannot legislate the CFTC into possessing powers Congress has not granted it, rewrite statutes, or enact CLARITY by administrative vote.
But within the SEC’s own statutory jurisdiction, it could potentially accomplish something economically similar in important areas.
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And there is precedent for thinking in exactly this direction. The SEC has already been actively exercising Section 36 authority in 2026, including conditional exemptions from Exchange Act requirements.
Now take that concept to its theoretical maximum.
The Commission could combine several actions into one enormous regulatory package:
1 Define the securities boundary much more sharply.
2 Establish that numerous crypto assets are not themselves securities merely because they previously were sold in an investment-contract transaction. The SEC has already issued a March 2026 Commission interpretation specifically addressing how federal securities laws apply to different types of crypto assets and crypto transactions.
3 Create a broad Section 36 transitional exemption.
Exchanges, broker-dealers, ATSs, custodians and other regulated entities could receive conditional relief allowing them to interact with qualifying digital assets and blockchain infrastructure without every legacy securities-market requirement mechanically applying.
4 Open regulated securities markets to on-chain infrastructure.
The really radical version would permit qualifying broker-dealers, exchanges, clearing organizations and other intermediaries to integrate tokenized securities, blockchain settlement and digital assets under specified conditions.
5 Create an innovation exemption for tokenization.
Instead of requiring every novel DLT architecture to wait years for bespoke regulatory accommodation, establish a principles-based pathway: meet custody, disclosure, anti-fraud, capital, cybersecurity and investor-protection conditions and enter the regulated marketplace now.
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6 Resolve the secondary-market problem.
The Commission could make unmistakably clear that secondary transactions in qualifying non-security crypto assets don’t somehow become securities transactions merely because an asset once figured in somebody else’s securities offering.
7 Normalize regulated custody and collateral treatment.
A coordinated package could remove major SEC-created obstacles to broker-dealer custody, tokenized collateral, digital-asset securities and institutional participation.
Source(s):
• https://x.com/KuwlShow/status/2087238412801638882
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