Fischer warns Clarity Act will fail as states gain power

Amanda Fischer told a room of derivatives executives that the Clarity Act will fail and states will win.

That is not a fringe position. Fischer is Better Markets' policy director, and her argument runs directly against the direction the CFTC's own chairman has been moving. Michael Selig's three-part regulatory roadmap, outlined at the Innovation Advisory Committee meeting in Washington, assumes federal authority over prediction markets is the question to be answered by rulemaking, not by a legislature that cannot pass the bill the president is asking for. Fischer is saying the legislature won't deliver, and when it doesn't, the states and tribes are already in position.

The Clarity Act has been stalled long enough that its stalling is itself a data point. Congressional calendars do not move faster because a president asks. The structural problem is that prediction markets touch too many committee jurisdictions, too many constituent interests, and too many state gambling compacts to clear in a single legislative session under current political arithmetic. Fischer did not need to say this in detail. The room knew it.

What the room may not have fully priced is what federal inaction actually costs. Selig's roadmap works if the CFTC can hold the preemption line through enforcement and rulemaking while Congress catches up. But the litigation running through the Ninth Circuit, the Sixth Circuit, the Connecticut federal court, and now a New Mexico tribal court is not waiting for the roadmap. Each case creates its own record. Some of those records are going to be unfavorable to the federal preemption argument before Congress acts, if Congress acts at all.

Fischer's specific claim about tribes is the part worth sitting with. Tribal gaming compacts operate under IGRA, the Indian Gaming Regulatory Act, and the jurisdictional architecture there is genuinely different from state commercial gambling law. Tribes have litigated their gaming rights for decades with more patience, more resources, and better results than most state attorneys general. If tribal jurisdictions begin asserting authority over prediction market activity on or near tribal lands, the CFTC's preemption argument faces a legal framework it was not designed to address. The Commodity Exchange Act was not written with IGRA in mind.

The self-certification process that Terry Duffy called out at the committee meeting — 2,500 certifications, none opposed since January 2025 — is the operational exposure Fischer is pointing at from the other side. Duffy thinks it invites manipulation. Fischer thinks it invites state enforcement. Both things can be true at once, and they are mutually reinforcing: every manipulation episode is evidence a state regulator can use to argue that federal oversight has failed and their own authority should fill the gap.

The standard that will determine whether Fischer or Selig is reading this correctly is whether the Commodity Exchange Act, as amended by Dodd-Frank, preempts state law comprehensively enough to hold off IGRA-based tribal claims and state public interest exceptions when the CFTC has declined to prohibit a contract class. Courts resolving that question will look at whether the federal scheme occupies the field or merely sets a floor.