The Congressional Review Act Assault on Our Safeguards
Since the arrival of the Trump administration, along with the first full Republican control of the policymaking branches of the federal government in over a decade, the dominant narrative in Washington has focused on the chaos and tumult that has so defined the Administration. But those willing to scratch beneath the surface will find that anti-regulatory conservatives in Congress have been quietly toiling to use a long-dormant law called the Congressional Review Act (CRA) to unwind critical public interest accomplishments from the last months of the Obama administration.
The CRA does not give Congress any extra authority. Indeed, Congress can pass legislation whenever it wants to repeal existing regulations, since those regulations are themselves the offspring of earlier congressional enactments. Instead, what the CRA does is – for a limited time – suspend much of the deliberative process, including committee consideration, conference committees to resolve differences between the two chambers’ respective legislation – and one procedural chokepoint – the Senate filibuster. To give the CRA even more reach, it includes a complex “carryover” provision that enables a new session of Congress to “reach back” into the preceding presidential administration’s term so that it can apply the CRA’s expedited legislative procedures to rules that were finalized in the last several months of that administration.
That’s the scenario now playing out on Capitol Hill. Conservatives in Congress have the simple majorities they need to muscle through CRA resolutions that attack safeguards from the end of the Obama administration, and a president willing to sign any resolutions they send his way. Anti-regulatory members of Congress have made full use of this opportunity, dedicating considerable legislative energies to targeting as many Obama administrative-era regulations as they can.
Because of the CRA’s expedited procedures, however, little deliberation is being exercised over whether these rules should actually be preserved. The whole process – from start to finish – takes a few weeks at most, a lightning-quick pace by inside-the-Beltway standards. The resolutions are not the subject of investigative hearings or even much in the way of floor debates.
In contrast, the rules being eliminated are often the result of several years’ worth of careful analysis, carried out by some of the leading experts in the relevant fields of engineering, law, medicine, and science.
0: Number of resolutions of disapproval currently awaiting President Trump’s signature.
41 percent. Nearly half of all the legislation Trump signed while the CRA window finally closed on May 18 (14 of 34 bills) have been CRA resolutions.
3 years vs. 41 days: On average, the 14 rules that were eliminated through the CRA had been in the works for roughly three years each. In contrast, it only took an average of 41 days to eliminate each of those 14 rules using the CRA’s procedures. Learn more
What We’re Losing
Using the CRA’s backdoor procedures, Congress is busy denying us all the considerable benefits that these rules would have otherwise delivered. Those benefits include more jobs, improved environmental protections, greater financial security, safer workplaces, and better stewardship of our tax dollars by government entities at all levels.
156: Number of additional jobs that would have been created on net per year between 2020 and 2040 by the Department of the Interior’s stream protection rule. Not only would this rule have created jobs, it would have also delivered significant environmental benefit to a region of the country that has been ecologically devastated by mountaintop removal mining. Among the rule’s environmental benefits, the agency projects that it would have improved water quality in 263 miles of intermittent and perennial streams per year and led to reforestation of 2,486 acres of mined land per year.
2: Number of rules that have been targeted for elimination by the CRA that were developed in response to Government Accountability Office (GAO) reports highlighting ineffective government programs. Learn more
9: Number of rules that have been targeted for elimination by the CRA that would have generated the benefit of saving some government entity – federal, state, or local – money by making more efficient use of their limited resources. Learn more
Politics Before People
When it comes to vote tallies, the contrast between the CRA resolutions and the statutes that authorized the rules being targeted for elimination could not be clearer. Thanks to the CRA’s expedited procedures, the anti-regulatory members of Congress are able to use their narrow partisan majorities to push through their agenda of defeating the implementation and enforcement of laws that enjoy broad public support.
46 and 5. These numbers represent the narrow margins, on average, by which each of the CRA resolutions have passed the House and Senate, respectively, so far.
By the narrowest of margins. So far, all the CRA resolutions that Congress has taken up have passed by slim, almost entirely party-line votes, underscoring what a nakedly partisan exercise these resolutions are. In the Senate, none would have mustered the 60 votes required for passage under regular Senate rules. Learn more
245 and 65. In contrast, these numbers represent the wide margins, on average, by which each of the main authorizing statutes for the rules that have been targeted by CRA resolutions passed the House and the Senate, respectively.
Thwarting the public will. Nearly all of the rules that have been targeted for elimination through the CRA were authorized or required by earlier legislation that passed with broad bipartisan support, raising the specter that these resolutions are being used to defeat the effective implementation of laws that enjoy strong public backing. If Congress couldn’t enact legislation to weaken these laws without causing a public uproar, should they being using a sneaky, backdoor route like the CRA to accomplish the same objective? Learn more
The beneficiaries of this assault on our safeguards are the anti-regulation forces’ corporate patrons. Financial disclosure data reveal that the lead sponsors of these CRA resolutions have received significant campaign contributions from the very industries that would most directly benefit from the regulatory rollbacks that the resolutions would accomplish. The secretive nature of these resolutions, combined with their direct benefits for favored corporate interests, creates the perfect breeding ground for corruption. Even if these CRA resolutions are not the result of an explicit or implicit quid pro quo, the appearance of impropriety they create is sufficient to weaken public esteem for our governing institutions, further undermining the legitimacy of our democracy.
$465,950. This is the total of campaign contributions that Sen. Jim Inhofe (R-OK) – the lead sponsor of the Senate’s version of the CRA resolution to repeal the SEC’s anti-corruption rule – received from the oil and gas industry between 2011 and 2016.
Pay to play. The lead House and Senate sponsors of many of the CRA resolutions that Congress has taken up have received significant campaign contributions from the industries that stand to benefit from the regulatory rollbacks. At worst, the CRA invites outright political corruption; at best, it creates an appearance of impropriety that threatens to do lasting damage to the legitimacy of our democratic institutions. Learn more