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All About Oversight

House Republicans have pledged to conduct vigorous oversight of the Biden administration. What tools are at their disposal?

“Over the last two years of Democrats’ one-party rule in Washington, House Democrats have not lifted a finger to engage in oversight and accountability of the Biden administration’s actions and abuses of power. We [Republicans] will leave no stone unturned in order to deliver the accountability the American people deserve.”

That was then-U.S. House Minority Leader, now Speaker of the House, Kevin McCarthy on Dec. 6, 2022, shortly after Republicans learned they had won enough seats to take control of the lower chamber of Congress.

In the run up to the 2022 midterm elections and since, Republicans have not been shy about the fact that their priority over the next two years will be to shine a bright light on everything they believe President Joe Biden is doing wrong.

This stance is not uncommon when the White House and at least one chamber of Congress are held by different parties.

When Democrats took control of both the House and Senate in 2006 and President George W. Bush was finishing his White House tenure, Democratic party leaders, including then Speaker-to be Nancy Pelosi (D-Calif.), promised to hold the White House’s feet to the fire on everything from port security to the Iraq War. Rep. John Conyers (D-Mich.), who was to lead the powerful House Judiciary Committee said, “The American people sent a clear message that they do not want a rubber-stamp Congress that simply signs off the president’s agenda. Instead, they have voted for a new direction for America and a real check and balance against government overreaching.”

What’s old is new again. So, today, what tools do Republicans plan to use to be a “real check” against the Biden administration? Let’s take a look.

Hearings, Hearings, and More Hearings

While Republicans ran on a platform to curb government spending (including defense spending), a New York Times story this week reported GOP leaders intend to increase the budgets for standing committees in the U.S. House of Representatives so that Republicans can enhance oversight of the Biden administration.

But Republicans do not intend to only hold these discussions within the marbled hallways of the U.S. Capitol. They are taking the oversight hearings to the American people.

In other words: Republican chairs and lawmakers need more money to travel and to convene public oversight sessions across the country.

“Determined to take their message directly to voters at a time when they are hard-pressed to get anything concrete done on Capitol Hill, House Republicans are increasing the budgets of their congressional committees and going out on the road, planning a busy schedule of field hearings in all corners of the country aimed at promoting their agenda outside the Beltway,” The Times reported. “It is part of a well-worn political strategy to reach voters where they live and generate local media attention for activity that would most likely draw little notice in Washington.”

The House Committee on Ways and Means, which oversees everything from tax to trade to some health policy, already has had a field hearing in Pennsylvania to examine the economy in Appalachia. Members of that panel will soon be in Oklahoma to examine how families and businesses are faring in the plains states.

Republican members of the House Judiciary plan to travel to Texas to examine Biden administration immigration and border security policy, while the House Veterans Affairs (VA) Committee may conduct field hearings to see if the Biden administration has improved operations and care at VA facilities.

These hearings, of course, are mainly messaging events designed to attract voters’ attention in the run up to the 2024 presidential election. In an era of divided government, they will have little to do with actual legislation that will be enacted into law. But Republicans do have oversight mechanisms they could turn to try to roll back the Biden administration’s agenda.

What Is the Congressional Review Act?

As the Congressional Research Service (CRS), the nonpartisan research arm of Congress, explained in a 2021 paper, the Congressional Review Act (CRA) is a tool federal lawmakers can use to overturn some regulations issued by federal agencies. The legislation was meant to prevent outgoing presidents from enacting a bevy of last-minute rules before their terms end by giving Congress a mechanism to review and rescind those rules. It was part of a bill signed into law in 1996.

The CRA achieves this oversight by setting out a special set of procedures under which lawmakers can consider legislation to overturn executive branch rules. First, the CRA requires agencies to report on their rulemaking activities to Congress. After receiving a report from an agency on a major new regulation, members of Congress have a specified time period during which they can submit and act on a resolution disapproving of the rule.

If both chambers of Congress approve the resolution, and the president signs it into law, the rule is nullified.

And there you see the hitch: both chambers have to agree to overturn a rule and the president has to sign a CRA resolution into law. Current House Republicans can pass as many CRA resolutions as they would like, but their Democratic colleagues in the Senate are not likely to agree to the resolutions. Even if they did, President Biden would veto them. The fact that there are still checks and balance is probably why, as the American Action Forum has explained, the CRA “has been seldom used as to be successful.” In fact, it “typically must be used when a new president from a different party than the predecessor enters the White House and the new president’s party fully controls Congress.”

According to scholars from the Brookings Institution, the CRA was used to reverse only one regulation in its first 20 years: a U.S. Department of Labor (DOL) rule on ergonomics promulgated at the end of the Clinton administration that was reversed at the beginning of the Bush administration in 2001 by a fully Republican Congress. In all, the CRA has been used to overturn a total only 20 rules in the 27 years it has been on the books.

Those numbers have not kept House Republicans from trying to leverage the CRA this year. According to the American Action Forum, there are a handful of rules that currently are subject to the CRA that GOP leaders could seek to overturn. These include everything from a Fish and Wildlife Service regulation to add the lesser prairie chicken to the List of Endangered and Threatened Wildlife to an Environmental Protection Agency rule setting stricter emissions standards for heavy duty vehicles.

And, last week, the House voted 216-214 to block a Biden administration rule making it easier for retirement plan managers to consider environmental, social, and corporate governance (ESG) issues when making investments decisions. Not surprisingly, the Democratic Senate almost certainly will not consider that resolution.

But while the CRA may not be the most effective oversight tool available to the House GOP, federal appropriations could be.

Federal Budget As Oversight Tool

President Joe Biden has submitted his fiscal year 2024 budget proposal to Congress. As we explained in this column last week, that document does not have the force of law and probably ultimately will not reflect Congress’ eventual budget agreement.

That is because Congress – and the House in particular – holds the power of the purse. And Republicans have made it clear they intend to slash funding for the agencies and programs the Biden administration prizes. In fact, as Government Executive reported back in January, as part of the deal to secure the votes for his speakership, House Speaker Kevin McCarthy agreed to set forth a budget that cut federal agency spending by as much as 25 percent.

Speaker McCarthy also agreed to a rule that would allow individual lawmakers to reduce the number of federal workers at specific agencies or cut their compensation by amending an appropriations bill. As another Government Executive story explained, this legislative policy, known as “the Holman Rule,” dates back to the late 19th century.

During the Trump administration, Republican lawmakers used the provision to target Congressional Budget Office, State Department and Defense Department employees, but their amendments were unsuccessful. Democrats did not use the rule when they were in charge of the House in the 117th Congress.

According to Government Executive, lawmakers can target specific federal programs or offices, but the Holman Rule “does not allow for broad-ranging firing authorities; cuts must be aimed at specific entities and cannot be contingent on future events.” Additionally, lawmakers can cut the workforce or compensation for employees only at the agencies covered by the specific spending bill in which the provision or amendment is included.

To be sure, Democrats will fight any Holman Rule cuts Republicans try to make. But the federal budget is a negotiation in which both sides will have to accept the other’s priorities, making federal spending one area in which House Republicans will have the ability to exert significant oversight of the Biden administration.

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