TD Cowen: CFTC crypto rules face race against 2028 election clock

Analysts at TD Cowen say the Commodity Futures Trading Commission’s new crypto rulemaking may not be finalised before the 2028 presidential election, leaving the framework open to being rewritten or scrapped by a future administration.

The warning came in a note from Jaret Seiberg, managing director at the bank’s Washington Research Group, dated 12 October 2026. In his words, time is running out: the CFTC at best will get its proposal out in late Q1 2027 or early Q2 2027, and it could then take until early 2028 to finalise the rule.

What the CFTC actually put on the table

The agency’s move so far is an advance notice of proposed rulemaking, issued on 5 October 2026. An ANPRM puts nothing into effect: it asks the public to weigh in on a tailored federal framework for retail commodity transactions in crypto that involve leverage, margin or financing, with a 60-day comment period once it appears in the Federal Register.

Two draft regulations sit behind it. Regulation CTX would spell out which transactions fall under CFTC authority through Section 2(c)(2)(D) of the Commodity Exchange Act. Regulation CAM would create a “crypto asset markets” category within designated contract market registrations, giving leveraged crypto platforms a dedicated federal lane. The framework stops short of claiming jurisdiction over spot market transactions.

Why the clock matters

The Senate failed an initial vote on the Clarity Act, the market structure bill that would have given the CFTC broad spot-market authority, in September 2026. With legislation stalled, the CFTC and the Securities and Exchange Commission have stepped in with agency-level measures, including an innovation exemption. Chairman Michael Selig has described the agency’s approach as a temporary solution providing oversight while legislative efforts remain stuck.

TD Cowen’s argument is that agency rules are a poor substitute for statute: future commissioners can modify or eliminate them outright, so only legislation is durable. Seiberg also sees a trap on speed: he warns that expediting the process would increase the risk a judge blocks it on procedural grounds, and that even careful rulemaking could still face legal challenges extending beyond 2028.

The comment period clock has not yet started: the Federal Register publication date for the 5 October notice has not been announced.