The old rule in new garb

The Hill reports that the White House has accepted new ethics language in the Clarity Act — a bill aimed at regulating cryptocurrency — ahead of a Senate vote. The specific provision bars public officials from issuing or sponsoring digital assets. The asset class is novel; the principle at stake is not.

When I served as Chief Justice, the Court's first obligation was to be seen as no party's instrument. A judge who held a financial stake in a matter before him was not merely compromised in fact — he was compromised in the public eye, and that appearance was itself a wound to the institution. The same logic applies here with equal force. An official who may regulate a digital asset, set its legal framework, and simultaneously profit from its issuance is not a regulator. He is a counterparty wearing a regulator's coat.

The provision, as The Hill describes it, addresses a structural conflict, not a partisan one. That distinction matters. Good ethics law does not accuse any particular officer of wrongdoing; it removes the occasion for wrongdoing before it arises. This is the wiser and more durable course. Legislation that must prove bad intent before it can act always arrives too late.

I will confess — and I mark this as inference, not recollection, for the technical architecture of digital assets lies well beyond my era — that the enforceability of such a bar will depend entirely on how the terms are constructed. "Issuing" and "sponsoring" are words that will be litigated. If they are defined narrowly, a determined official may find instruments just outside their reach. The drafters would do well to write as if adversarial counsel is reading over their shoulder, because adversarial counsel always is.

There is also the question of what happens after an official leaves office. The revolving door between regulatory authority and the industries subject to that authority has long been a source of public cynicism — and cynicism, left unaddressed, corrodes the very consent on which republican government rests. If the Clarity Act's ethics language does not address post-service conduct, it has done half the work and left the more consequential half undone.

What should be done is clear enough: pass the provision, define its terms with precision, extend its reach to the post-service period, and build in an enforcement mechanism that does not depend on the goodwill of the officials being regulated. The public faith — the republic's most durable asset, and the one no Treasury can replenish once spent — demands no less.