New Report: It's Time to Repeal the Congressional Review Act

by James Goodwin

May 02, 2018

Over the last couple of weeks, conservatives in Congress have continued their assault on public safeguards using the once-obscure and once-dormant Congressional Review Act (CRA). If their latest adventure succeeds, it will be the 16th public protection that these members, working with in concert with President Donald Trump, have obliterated over the last year, laying waste to a broad and diverse range of measures related to public health, safety, the environment, and consumer financial protection. 

The anti-safeguard lawmakers behind these CRA-fueled attacks have already demonstrated what a dangerous law the CRA is, especially in the wrong hands, but this latest action would take the law to an unprecedented and even more extreme level. It targets a 2013 "bulletin" by the Consumer Financial Protection Bureau (CFPB) aimed at discriminatory auto lending practices. As such, this would be the first time the CRA has been used to wipe out a so-called "guidance document" – a common type of agency action that seeks to promote regulatory certainty but itself does not have the independent force of law – and the first time the CRA has been used against an agency action that was not recently finalized. Sponsors of this attack are trying to create a new loophole in the CRA that would enable them to treat the CFPB guidance as if it was recently finalized and thus eligible for repeal under the CRA, throwing open a Pandora's box of potential assaults on additional public health, safety, financial, and environmental guidelines. 

The dangerous attack on the CFPB's critical guidance document underscores the important themes outlined in a new report out today, The Congressional Review Act: The Case for Repeal. The report provides the first comprehensive policy and legal analysis of the CRA, a "Contract with America"-era law designed to short-circuit Congress's deliberative process and allow narrow partisan majorities to attack broadly popular public safeguards on behalf of politically powerful interests. Based on this analysis, the report concludes that Congress should take immediate legislative action to repeal the CRA and to reinstate the rules that the law was used to revoke. 

The CRA creates a special form of legislation known as a "joint resolution of disapproval," a sort of legislative veto of regulatory agencies' work, that, once enacted, immediately repeals a recently completed regulation. The CRA further provides that these resolutions prohibit the agency from issuing another rule "in substantially the same form" without first receiving specific congressional authority to do so. This effectively ties the agency's hands so that it is no longer able to tackle the problem that it sought to address in the original regulation, regardless of any underlying statutory authority or obligation it may have in the given area. 

The CRA is best understood as a legislative gimmick, intended to undercut landmark protective laws like the Clean Air Act, the Clean Water Act, and more. Its real power comes from greasing the procedural skids so that attacks on common-sense protections can become law in a matter of just days or weeks with scant consideration or substantive debate – and almost no public scrutiny. The CRA helps ease the passage of these resolutions by exempting them from much of Congress's self-imposed deliberative process. Most significantly, the CRA exempts these resolutions from the most consequential chokepoint in the legislative process: the 60-vote cloture requirement in the Senate. 

The CRA-fueled assault on regulatory safeguards carried out over the course of 2017 and 2018 will leave all Americans – but especially the working poor and communities of color – less safe and secure. Among the safeguards Congress repealed through the CRA were measures to:

  • Ensure safe drinking water for economically depressed Appalachian communities;
     
  • Prevent mass shootings such as the 2007 Virginia Tech University massacre by strengthening existing efforts to stop individuals suffering from mental illness from improperly acquiring guns;
     
  • Secure the privacy of Internet users' browsing data against misuse by unscrupulous marketing companies;
     
  • Allow consumers a realistic avenue to just compensation when they are cheated out of money by a bank, credit card company, or other financial institution; and
     
  • Promote greater access to family planning and other health care services for women in low-income and other underserved communities. 

Beyond these direct harms against people and the environment, the report also details the lasting damage that such aggressive use of the CRA will have on Congress by further eroding its legitimacy as a governing institution. Its analysis of data on campaign contributions shows the close financial ties between the congressional sponsors of individual CRA resolutions and the industries that most directly benefited from the regulatory rollbacks the resolutions accomplished. Such close ties create a strong appearance of impropriety, one that invites corruption and weakens the public's esteem for our governing institutions even further. 

The report also uses empirical analysis of vote tallies to illustrate how the CRA empowers self-interested lawmakers to callously thwart the broader public will. On average, CRA resolutions passed the House by a margin of only 45 votes (at the time of the votes, Republicans held a 47-seat majority in the lower chamber) while passing the Senate by a margin of only four votes (at the time of the votes, Republicans held a four-seat majority in the Senate). These close vote counts stand in stark contrast to the wide margins by which the legislation that authorized or required the repealed rules passed Congress. On average, those authorizing bills passed by a margin of 240 votes in the House and 63 votes in the Senate. These abuses risk further inflaming the hyperpartisanship that has rendered Congress all but irrelevant as a policymaking institution. 

Finally, the report examines the various policy justifications offered by the CRA's defenders and finds them severely lacking. Despite the defenders' claims, the CRA provides neither an effective tool for congressional oversight of executive agency rulemaking nor a means for recalibrating the constitutional balance of powers between the executive and legislative branches. Rather, it seems that these policy justifications serve as little more than window dressing to obscure the real purpose of the CRA: the unimpeded elimination of regulatory safeguards that inconvenience industries with the largest megaphones and the fattest wallets. 

The CRA is an irredeemably bad policy tool with numerous disadvantages and no offsetting advantages. The report thus concludes with three recommendations for Congress:

  • The legislative repeal of the CRA;
     
  • A return to bipartisanship and "regular order" lawmaking as means for policymaking and conducting executive branch oversight; and
     
  • The reinstatement of all the rules that have been revoked using the CRA. 

Joining me in co-authoring the report are CPR Member Scholars Tom McGarity and Rena Steinzor and CPR Policy Analyst Katherine Tracy. You can find the report here. To see CPR's other work on the harms caused by the CRA, you can scroll down the report page to find our CRA By the Numbers content. We also invite you to join our webinar on Monday, May 7 at 1 p.m. Eastern time.

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Also from James Goodwin

James Goodwin, J.D., M.P.P., is a Senior Policy Analyst with the Center for Progressive Reform. He joined CPR in May of 2008.

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