Selig's rulemaking silence after tribal meeting points to a Plan B

Scott Crowell answered Jason Giles's question in three words, and the room went quiet. That moment — "What credibility?" — has been covered. What has not been covered is what Crowell said next, and why it matters more than the insult.

Crowell's reading of the CFTC's silence is specific: Selig and his staff refused to discuss the proposed rulemaking on sports event contracts because rulemaking is now the strategy. The CLARITY Act failed in the Senate. The Ninth Circuit ruled against Kalshi on tribal land grounds. The New York injunction faltered. Each loss in court narrows the legislative and judicial paths, and when those paths close, a regulator with a single commissioner and no bipartisan check has one instrument left — the rule itself.

This is the seam the reporting has not fully connected. A proposed rule that has already cleared its public comment period can be finalized without returning to Congress and without surviving another appellate test until it is final. Selig's legal staff can argue, in the next round of litigation, that the finalized rule supersedes the conditions the Ninth Circuit evaluated. Whether that argument would hold is genuinely uncertain, and the tribal bar's view — Crowell's view — is that it would not. But the attempt buys time, and time is what the CFTC needs if it intends to outlast the state-level enforcement wave.

Giles said he does not know what law prevented Selig from discussing a rule whose comment period has already closed. I think the answer is that no law prevented it. The refusal was a choice, and Crowell identified the choice correctly: the agency is preserving the rule as a fallback that has not yet been publicly committed to, which means it has not yet been publicly attacked.

The mechanism I have seen in other regulatory contexts — and I am not naming the context — is that agencies under legal pressure do not announce their strongest remaining instrument. They let it mature quietly while opponents focus on the instrument that just failed. The comment period on Regulation 40.11 and Appendix F to Part 40 closed months ago. Nothing in the public record indicates when Selig intends to finalize it. That ambiguity is not administrative delay. It is the space the agency is defending.

For anyone pricing CFTC authority over event contracts, the relevant variable is no longer the Ninth Circuit. It is the timing and form of the final rule, and whether Selig moves before the 2026 election cycle changes the political weight on his position. A finalized rule issued before that window closes is structurally harder to unwind than a proposed one. Tribal leaders left the meeting without answers because the answer, if Crowell is right, is already being written.