Congressional Review Act: Democrats Leave Key Regulatory Tool on the Table--Why?
If you have been reading the inside the Beltway newspapers—or any newspapers, really—you know that many Democrats on Capitol Hill, and the party’s left flank, are itching to eliminate the legislative filibuster in order to get the Biden agenda into law. These voices are putting significant pressure on Senate Majority Leader Chuck Schumer (D-N.Y.) to act to change the Senate’s rules to allow a straight majority to move legislation onto the Senate floor and pass it.
While filibuster headlines rage, there also is another, less known, way the progressive wing of the party is eager to implement policy: the Congressional Review Act. The Trump administration and congressional Republicans wielded this tool skillfully in 2017 to overturn many Obama administration policies.
Why aren’t Democrats moving as swiftly this year?
What Is the Congressional Review Act?
Before answering that question, you might be wondering: what is the Congressional Review Act (CRA), anyway? Scholars at the Brookings Institution have offered one of the most concise and understandable definitions:
“Passed as part of the Contract with America Advancement Act of 1996, the Congressional Review Act creates a streamlined procedure by which Congress can disapprove and thereby nullify regulations promulgated by various federal government agencies. The CRA requires that all rules be reported to Congress. Upon receiving that report, Congress then has 60 legislative working days … to introduce a special joint resolution of disapproval of the rule.”
Perhaps let’s break that down further: after a new regulation is finalized, Congress has 60 legislative working days to vote to overturn it. The president needs to sign any resolution to overturn a rule, which means the CRA is most often reserved for use after a new president is elected—and only if Congress is held by the new president’s party. (In other words, the two branches must agree that a regulation has got to go.)
For Democrats in Congress and in the Biden administration, the 60 days for most end-of-the-Trump era regulations will elapse in early April. There simply is not much time left to use the CRA. Indeed, if House Democrats do not introduce a CRA resolution by April 4, the party loses its opportunity to kill Trump-era regulations. If the House does introduce and approve legislation, the Senate has until mid-May to act.
In 2017, Republicans Wielded CRA To Maximum Effect
But so far, House Speaker Nancy Pelosi (D-Calif.) and Sen. Schumer have not advanced any legislation to overturn Trump-era regulations. As a result, their supporters are chomping at the bit—and, as we will see, starting to get a little rowdy. Especially since the House already is out of session for the Easter recess and the Senate is expected to recess this week.
A Slate magazine headline, for example, recently shouted, “Democrats Are Blowing Their Opportunity to Rapidly Repeal Some of Trump’s Worst Policies.” The writer, a bit outraged, explained the CRA would afford Democrats the ability to “repeal every Trump [regulatory] policy finalized after Aug. 21, 2020.” The list of issues these regulations encompass is long and includes policies related to the preservation of endangered species, interest rates, greenhouse gas emissions, immigration, employment discrimination, and government grantees and their handling of LGBTQ rights.
The writer was particularly outraged, it seemed, because President Biden’s predecessor spent a significant amount of time undoing Obama-Biden administration policies during his first months in the White House.
The Slate article noted “In 2017, Republicans used the CRA a whopping 16 times to repeal the Obama administration’s regulations.” It also explained that, “before that point, it had been used just once, in 2001.” President Obama and Democrats did not use the CRA at all in early 2009 and President George W. Bush used it only to overturn an Occupational Safe and Health Administration (OSHA) rule regarding ergonomics.
The first rule Republicans overturned in 2017 was one offered by the U.S. Securities and Exchange Commission (SEC) that, as CRA sponsor Sen. Jim Inhofe (R-Okla.) explained, would have required oil and gas companies to disclose their “playbooks” outlining how they win deals. The Trump administration and the GOP Congress also used the CRA to undo OSHA and U.S. Department of Labor rules. Republicans also took action to get rid of two Consumer Financial Protection Bureau rules—an auto lending rule that was meant to protect minority customers from predatory borrowing practices and another rule that prohibited arbitration clauses in consumer finance contracts that barred class actions.
Why Are Democrats Reluctant To Use CRA?
If the GOP was so willing to wield this power in 2017, why are Democrats reluctant today?
One explanation is that, like in 2009 (again—a year in which the Obama administration declined to use the CRA even once), they have been busy with a health and economic crisis. Sen. Ron Wyden (D-Ore.) told Politico last week, “We’ve been pretty busy … We passed arguably the most significant piece of legislation in decades and now we’re pushing hard on the next steps—for example, infrastructure, and looking at tax reform. These are big issues and there’s only so many hours in the day.”
Another reason Democrats could be hesitant? Using the CRA now actually could hamstring Biden administration policymaking later. Politico also explained:
“[S]ome Democrats are wary of proceeding against Trump’s regulations now due to a legally untested provision that could limit the Biden’s administration ability to rewrite those rules. The law bars the rewriting of new regulations that are disapproved by Congress if they are ‘substantially the same form’ as the previous, vetoed regulations. In other words, if Congress scratches an October rule from Trump’s EPA rolling back methane limits on new oil and gas wells, some environmental advocates fear Biden would have his hands tied in rewriting it. That means that Biden and congressional Democrats need to closely coordinate on whether Congress should take action or leave it to the new administration.”
The time it takes to pass CRA resolutions, and the impact it could have on future policymaking, is why scholars from Ohio State University have argued Congress likely will not use the CRA to overturn Trump administration financial services rules, including the SEC proxy rule. (This regulation aimed to increase the transparency, accuracy, and completeness of the information proxy advisors provide to investors making proxy voting decisions.)
So is Congress likely to act?
Lawyers from the firm Kilpatrick, Townsend and Stockton don’t think so. In fact, they think there will be little, if any, action using the CRA. In a brief last week, the law firm concluded, “it is unlikely that the CRA will be a major tool to reverse environmental regulations of the Trump administration. Rather, the Biden administration will attempt to reverse regulations through freezing not-yet-published regulations, delaying litigation and reversing course when possible, and, in any event, through standard notice and comment rulemaking.”
The same commentators who are pushing for filibuster reform, however, might not be swayed by the reasons not to use the CRA.
Slate concluded, for example, that “it is puzzling to see how few lawmakers appear to care. Many Democrats have complained that the filibuster has stymied their agenda—yet they now have a brief opportunity to slash away at Trump’s legacy with a simple majority, and they are blowing it. If they let the clock run down, they will essentially concede that the CRA is just one more legislative maneuver that only Republicans are allowed to exploit.”