The SEC's $75 million crypto fundraising proposal and the Senate's CLARITY Act exemption differ on eligibility, investor limits, reporting, and resale rules, creating distinct legal routes for token issuers and buyers
Two competing approaches to U.S. crypto fundraising are taking shape, with the Securities and Exchange Commission (SEC) and the Senate each proposing frameworks that could reshape how token issuers raise capital and how investors participate. While both proposals set high-dollar thresholds-$75 million for the SEC and a greater-of-$50-million-or-10% formula for the Senate-their underlying mechanisms, eligibility criteria, and investor protections diverge in ways that could have lasting effects on the crypto market structure.
SEC Proposal vs. Senate Bill
The SEC's draft Regulation Crypto Assets would create two main exemptions for token offerings. The first, a "startup" exemption, would allow up to $5 million to be raised over four years. The second, a broader offering-and-reporting exemption, would permit up to $75 million in a 12-month period, but only if issuers meet disclosure, audited financial statement, and ongoing reporting requirements. Purchaser limits would generally restrict investors to buying no more than 10% of their financial capacity. Notably, the SEC's proposal would preempt state registration and qualification requirements for covered offerings and would not impose a general resale restriction on tokens sold under the $75 million route.
By contrast, Section 103 of the Senate's CLARITY Act would establish a statutory exemption for certain transactions involving "ancillary assets" sold under an investment contract. The annual fundraising cap would be the greater of $50 million or 10% of the issuer's outstanding ancillary asset value, measured over four years, with a $200 million aggregate ceiling. This formula means that for large projects, the effective annual limit could exceed $50 million, but the total amount raised under the exemption cannot surpass $200 million. The Senate's definition of "ancillary assets" is not identical to the SEC's covered assets, which could further complicate eligibility for issuers.
Eligibility, Reporting, and Resale Differences
For token issuers, the choice between these routes is not just about the headline fundraising limit. Legal counsel would need to analyze the nature of the asset, the structure of the transaction, and the issuer's relationships with affiliates or controlling parties. A token sale that qualifies under one exemption may not fit the other, depending on these factors.
The SEC's $75 million exemption would require detailed offering disclosures, audited financials for larger raises, and regular annual, semiannual, and current reports. Investors would face purchase caps, but there would be no general restriction on reselling tokens. The SEC also frames its exemptions as nonexclusive, allowing issuers to rely on other available exemptions if they qualify. The Senate's approach, meanwhile, requires an initial filing after the first sale and semiannual disclosures, while preserving federal liability provisions such as Securities Act Section 12(a)(2) and Exchange Act Section 10(b). Private rights of action would remain intact, and the bill clarifies that failing to meet the exemption does not automatically make an ancillary asset a security. Resale rules differ as well: the Senate bill places conditions on sales by related persons and coordinated groups, which could be especially relevant for founders and large holders.
Federal Preemption and Legal Uncertainty
Federal preemption is a key dividing line. The SEC proposal explicitly addresses state-level registration and qualification, while the Senate bill's preemption effects would depend on the final statutory language and how it interacts with existing SEC rules. If Congress passes a law that conflicts with an SEC rule, the agency would need to align its regulations with the new statute. For now, both proposals remain works in progress: the SEC's draft is open for public comment through October 20, 2026, and the Senate's framework is still moving through the legislative process, with multiple versions circulating in recent months.
These differences mean that issuers and investors cannot rely solely on the fundraising cap when evaluating which path to pursue. The legal object of the offering, the rights attached to the token, and the reporting and resale conditions will all play a role in determining eligibility and compliance. As the legislative process continues, the final shape of U.S. crypto fundraising rules remains uncertain. For context, recent developments in the CLARITY Act's legislative prospects-including the departure of key policy officials-have added further unpredictability, as discussed in EgonCoin's analysis of the CLARITY Act's political headwinds.
According to the SEC's published timeline, the public comment period for its Regulation Crypto Assets proposal will remain open until October 20, 2026. The Senate Banking Committee advanced a version of the CLARITY Act in May, with subsequent updates released in June and July. As of July 2026, neither the SEC's exemptions nor the Senate's statutory route are available to issuers or investors, and any legal conclusions will depend on the final enacted text and subsequent rulemaking.
Both the SEC and Senate frameworks reflect ongoing efforts to clarify the regulatory environment for crypto fundraising in the U.S. The SEC's approach emphasizes fixed annual limits, purchaser caps, and detailed reporting, while the Senate's proposal introduces a variable cap tied to asset value, a longer four-year window, and a different liability structure. The practical impact for token issuers and investors will depend on which, if either, framework becomes law and how the final rules are implemented.
In the context of U.S. crypto fundraising, the distinction between a regulatory exemption created by SEC rulemaking and a statutory exemption enacted by Congress is significant. A regulatory exemption can be modified or withdrawn by the agency, while a statutory exemption generally requires new legislation to change. This difference affects the stability and predictability of the legal environment for token issuers, investors, and market participants.
