Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 13 of 43
the CFTC explained, matched “Congress’s intent to prevent gambling through the futures markets.” 76 Fed. Reg. 44776, 44786 (July 27, 2011). The prohibition remains on the books today. See 17 C.F.R. §40.11(a). The CFTC exercised similar caution in later rulemakings. In 2012, as part of a rule jointly promulgated with the SEC, the CFTC refused to read the term “swaps” in a way that would disrupt “customary business arrangements” that “historically have not been considered to involve swaps.” 77 Fed. Reg. 48208, 48247 (Aug. 13, 2012). Swaps, the CFTC explained, “involve risk-shifting arrangements with financial entities.” Id. at 48248. As a result, the CFTC did not read the term “swaps” to capture transactions or arrangements involving “personal or family ac- tivities” that ordinary “consumers” regularly engage in. Id. at 48247. Just two years ago, the CFTC issued a proposed rule that directly con- fronted the relationship between state-gambling regulation and federal- derivatives regulation. The CFTC acknowledged that “gambling is over- seen by state regulators with particular expertise” and that federal-de- rivatives law is “not aimed at protecting against gambling-specific risks and concerns.” 89 Fed. Reg. 48968, 48982–83 (June 10, 2024). The CFTC further disclaimed having the “statutory mandate” or “specialized
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