The Congressional Review Act: Trump's First-Year Participation Trophy

by James Goodwin

Perhaps because he has so few real accomplishments to his name, President Donald Trump has developed a nasty habit of embellishing his record. From the size of the crowd at his inauguration to the number of floors in Trump Tower, he simply won't let a little thing like "reality" or "facts" or even "cardinal numbers" get in the way of his estimation of his own self-worth. Expect this behavior to be on full display at tomorrow night's State of the Union Address, where Trump will no doubt make several baseless claims about his achievements during his first year as Commander-in-Chief. One success he may tout – use of the Congressional Review Act (CRA) to repeal 15 regulatory safeguards – is a good example of such a claim that withers under scrutiny. 

The CRA is 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. Specifically, 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 issued regulation. What makes the CRA especially powerful are the procedural shortcuts it creates for passing resolutions of disapproval. Under these procedures, CRA resolutions are temporarily exempted from much of Congress's self-imposed deliberative process – including, most notably, the Senate's 60-vote cloture requirement. 

Accordingly, the lion's share of the credit – or blame – for the enactment of these CRA resolutions belongs to Congress, not to Trump. After all, even with these expedited procedures, it was Congress that did the real heavy lifting. With the exception of two of the measures in which Vice President Mike Pence was called in to cast the deciding vote for them to pass the Senate, Trump did nothing more than sign the resolutions into law. Even then, the normally flashy Trump usually eschewed the public spotlight, signing several of the measures in closed-door ceremonies away from the public view, presumably to avoid media and public scrutiny of the actual substance of the repeals. 

Of course, one could hardly blame Trump for wanting to avoid such scrutiny. The CRA resolutions offer few benefits and come at a considerable cost – to public health, safety, the environment, and financial security, as well as to the integrity of America's governing institutions. 

Despite having decades to do so, conservative opponents of public safeguards have never been able to muster a coherent theoretical basis for their claim that dismantling the regulatory system will jump-start economic growth or job creation. Nor have they been able to marshal any credible empirical evidence to support these claims. To the contrary, the best available empirical evidence has found that strong protections are fully consistent with robust economic growth and have at least net neutral, or even net positive, impacts on employment

The CRA in particular provides a robust refutation of the "jobs vs. regulations" myth. One of the rules that was repealed, the Department of the Interior's Stream Protection Rule, was projected to create 156 jobs on net per year between 2020 and 2040. During a rare, and perhaps inadvertent, moment of candor, Marc Short, Trump's legislative affairs director, appeared also to reject this myth, conceding at a White House briefing that "not each one of these [CRA repeals] can you look at and say it is necessarily a job creator." 

What's not a myth, however, is the profound harm these CRA resolutions will cause. In addition to the Stream Protection Rule, the CRA was used to repeal several other critical safeguards, including the following: 

  • 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; and 
  • Guarantee consumers their right to a day in court if they are cheated out of money by a bank, credit card company, or other financial institution. 

The effect, then, of the 15 CRA resolutions is to shift costs from powerful corporations to the public – especially the working poor and communities of color – forcing them to continue bearing the harms that these and other repealed safeguards would have prevented. 

Moreover, in signing these resolutions, Trump has enabled Congress's own self-defeating efforts of corroding the public's esteem for our democratic institutions. The bulk of the CRA resolutions that were enacted have the conspicuous effect of delivering significant economic benefits to a few politically well-connected industries, sparing them the costs that the repealed rules might otherwise have imposed. Campaign contribution disclosure data I gathered reveal that the members of Congress who served as the lead sponsors of these CRA resolutions have strong financial ties to the very industries that most directly benefited from the regulatory rollbacks the resolutions accomplished. While not necessarily proving the existence of a quid pro quo, these close financial relationships do create an appearance of impropriety that risks further undermining Congress's legitimacy. 

To make matters worse, nearly all of the resolutions were passed along narrow party lines to override the provisions of the broadly popular statutes that authorized or required the regulations that were repealed. This politicized use of the CRA risks further contributing to Congress's dysfunctional state by reinforcing and even exacerbating the hyper-partisanship that has rendered the body all but irrelevant as a governing institution. 

In short, the CRA resolutions enacted this past year give Trump little basis for bragging – if anything, they should be regarded as a tremendous source of embarrassment for the administration. But with so little else to show for its first year in office, the Trump administration will be eager to add something – anything – to its dusty, cobwebbed trophy cabinet – even if it's a shameful participation trophy like the CRA-enabled assault on our safeguards.

© 2016 The Center for Progressive Reform