The Congressional Review Act Assault on Our Safeguards
The first several months of the Trump administration, along with the first full Republican control of the policymaking branches of the federal government in over a decade, were largely defined by a narrative of chaos and tumult. But those willing to scratch beneath the surface will find that during those months, anti-regulatory conservatives in Congress quietly toiled 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 that played out on Capitol Hill until the middle of May when the CRA’s expedited procedures finally “expired.” Conservatives in Congress had the simple majorities they needed to muscle through CRA resolutions that attack safeguards from the end of the Obama administration, and a president who was more than willing to sign any resolutions they sent his way. Anti-regulatory members of Congress made full use of this opportunity, dedicating considerable legislative energies to targeting as many Obama-era regulations as they could.
And while the clock has run out on CRA resolutions filed against Obama-era rules, Congress can still use the law to target standards and safeguards from independent agencies that aren't under the Trump administration’s thumb. Congress has already taken this step to strike down a rule limiting abusive “forced arbitration agreements” used by the financial services industry that had been issued by the Consumer Financial Protection Bureau (CFPB), which remains under the leadership of an Obama administration nominee.
Because of the CRA’s expedited procedures, little deliberation was exercised over whether Obama-era rules should have been preserved. The whole process – from start to finish – took a few weeks at most, a lightning-quick pace by inside-the-Beltway standards. The resolutions were not the subject of investigative hearings or even much in the way of floor debates.
In contrast, the eliminated rules were 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.
15: Number of resolutions of disapproval signed by President Trump. See the list
41 percent: Nearly half of all the legislation Trump signed between Inauguration Day and May 18, the day the CRA window finally closed for rules issued during the Obama administration (14 of 34 bills), were CRA resolutions. Since May 18, Trump has signed 1 additional CRA resolution.
3 years vs. 48 days: On average, the 15 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 48 days to eliminate each of those 15 rules using the CRA’s procedures. Learn more
What We’re Losing
Using the CRA’s backdoor procedures, Congress was 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 were eliminated through the CRA that were developed in response to Government Accountability Office (GAO) reports highlighting ineffective government programs. Learn more
10: Number of rules that were eliminated through 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 that were eliminated could not be clearer. Thanks to the CRA’s expedited procedures, the anti-regulatory members of Congress were 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.
45 and 4. These numbers represent the narrow margins, on average, by which each of the CRA resolutions passed the House and Senate, respectively.
By the narrowest of margins. All the CRA resolutions that Congress took up during the first several months of 2017 passed by slim, almost entirely party-line votes, underscoring what a nakedly partisan exercise the resolutions were. In the Senate, none would have mustered the 60 votes required for passage under regular Senate rules. Learn more
240 and 63. In contrast, these numbers represent the wide margins, on average, by which each of the main authorizing statutes for the rules that were eliminated through CRA resolutions passed the House and the Senate, respectively.
Thwarting the public will. Nearly all of the rules eliminated through the CRA were authorized or required by earlier legislation that passed with broad bipartisan support, raising the specter that these resolutions were 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 have used a sneaky, backdoor route like the CRA to accomplish the same objective? Learn more
The beneficiaries of this assault on our safeguards were the anti-regulation forces’ corporate patrons. Financial disclosure data reveal that the lead sponsors of these CRA resolutions received significant campaign contributions from the very industries that most directly benefited from the regulatory rollbacks that the resolutions accomplished. The secretive nature of these resolutions, combined with their direct benefits for favored corporate interests, created the perfect breeding ground for corruption. Even if these CRA resolutions were not the result of an explicit or implicit quid pro quo, the appearance of impropriety they created was 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 considered have received significant campaign contributions from the industries that stood 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