前言

数字资产市场明晰法案旨在为一个快速成长且已大幅超越现有法律的产业建立明确规则。虽然多数观察者同意全面的加密货币监管已经刻不容缓，但正于国会审议的版本仍存在重大弱点。本文概述了五个具体漏洞，可能使不法分子和利益冲突破坏法案目标。通过说明真实案例与可行政策补救措施，目标是澄清法案必须加强之处，以便有效保护消费者、维护国家安全并保持公职廉洁。

懒散漏洞

《明晰法案》是向前迈出的一步，但目前包含了五项关键漏洞，可能促成制裁规避、洗钱与利益冲突。这些包括关于 DeFi 分类、匿名化工具、稳定币监控、司法辖区套利与公职人员道德规则的弱点。弥补这些漏洞将使法律与实际执法需求及现实威胁相符。

主体

The Digital Asset Market Clarity Act—having cleared the Senate Banking Committee—is intended to create regulatory clarity for an industry that has evolved more rapidly than the legal frameworks designed to govern it. Yet as the bill moves toward a Senate floor vote, five gaps remain that, if unaddressed, could substantially weaken the law’s purpose: preventing illicit finance, protecting consumers, and ensuring that public service is not used for private gain. Below we examine each gap, provide concrete examples of the risks, and propose targeted changes that would close those loopholes.

1. The Decentralized Finance (DeFi) Gap

Platforms or intermediaries that perform financial functions—moving, exchanging, concealing, or facilitating transfers of value—should not escape oversight merely by labeling themselves “decentralized.” Real-world abuse has highlighted this vulnerability: mixers and laundering services have been repeatedly exploited by sanctioned or criminal actors. For example, authorities have linked Tornado Cash to hundreds of millions of dollars in proceeds stolen by the Lazarus Group. When a platform behaves functionally like a financial intermediary, the law should treat it as such, subjecting it to appropriate anti-money laundering (AML) and sanctions safeguards. The Clarity Act should therefore include a functional test to determine regulatory status, so that responsibility follows activity rather than nomenclature.

2. The Anonymizing-Tool (“Tornado Cash”) Loophole

Some tools are designed to operate autonomously, continuing to facilitate obfuscation and laundering even after authorities identify illicit use. If AML obligations attach only to identifiable people and vanish when software performs the same task, the statute effectively codifies a workaround. That vulnerability is not hypothetical: U.S. authorities and international agencies have documented extensive use of digital asset infrastructure combined with front companies and exchange networks to hide proceeds of sanctioned actors. Congress should explicitly empower the Treasury Department’s Office of Foreign Assets Control (OFAC) and FinCEN to act against anonymizing or mixing tools used to evade sanctions, including the authority to designate and restrict software-based facilitators when they are materially used for illicit finance.

3. The Stablecoin Visibility Gap

Recent legislation established a framework for regulated stablecoin issuers, but it did not ensure that the broader ecosystem—DeFi protocols, offshore platforms, and mixers—cannot move stablecoins without meaningful controls. Sanctioned entities have already taken advantage of platforms that do not verify identity to move stablecoins across borders. To prevent stablecoins from becoming a go-to rail for illicit activity, the Clarity Act should require stablecoin issuers to implement reasonable, ecosystem-wide monitoring measures and reporting protocols that surface suspicious flows, even when those flows pass through third-party protocols or cross-jurisdictional venues.

4. The Jurisdictional Gap

Allowing platforms that serve U.S. customers or route transactions through the U.S. financial system to avoid AML and sanctions obligations by domiciling abroad creates perverse incentives. Cross-border laundering schemes—using bank accounts, exchange accounts, private wallets, shell companies, and transactions that touch the U.S.—illustrate how jurisdictional arbitrage can enable large-scale illicit finance. The Clarity Act should adopt a clear “U.S. nexus” standard so that entities facilitating transactions that meaningfully affect the United States are subject to AML and sanctions safeguards regardless of corporate headquarters.

5. The Ethics and Conflict-of-Interest Gap

Regulatory legitimacy depends on impartial rule-making. Recent reporting about major financial deals involving the family members of senior officials—and subsequent policy decisions—highlights the danger of overlapping personal financial interests and public responsibility. To ensure public trust and avoid the appearance or reality of self-dealing, the Clarity Act should bar public officials and their immediate family members from owning, promoting, sponsoring, endorsing, or soliciting investments in digital asset ventures while the official holds office. Clear prohibitions and enforcement mechanisms are essential to prevent governance outcomes driven by personal profit rather than the public interest.

These five gaps are grounded in current, observable activity: sanctioned states moving funds, foreign officials laundering bribes, hostile actors funding weapons programs, and private deals by those connected to policymaking circles. Congress now faces a pivotal choice. It can draft rules that genuinely protect consumers and national security, or it can leave room for exploitation that undermines those goals. The Clarity Act in its present form does not yet draw a sufficiently bright line between legitimate commerce and avenues for abuse. Closing these gaps would strengthen the legislation so that it fulfills the core functions of regulation—deterrence, detection, and accountability—while preserving innovation where it can safely proceed.

Ultimately, the debate is not about whether to regulate digital assets; it is about how to do so effectively. Lawmakers should seize this moment to refine the Clarity Act, incorporating functional definitions, expanded authority to address anonymizing technologies, ecosystem-wide stablecoin monitoring, jurisdictional reach where U.S. interests are implicated, and robust ethics rules for public officials. Doing so will help ensure the financial system is protected from misuse without needlessly stifling legitimate innovation.

关键见解表