Article I Dysfunction and the Congressional Review Act

There are many reasons why Senate Republicans’ recent decision to defy the parliamentarian and repeal California’s Clean Air Act waivers using the Congressional Review Act (CRA) was objectionable. But one objection that hasn’t received enough — any? — attention is how legislative gimmicks like the CRA contribute to the broader problem of congressional dysfunction.

One of the few things that everyone across the political spectrum seems to agree on is that Congress has abdicated its constitutional responsibilities as the lead policymaking branch within our tripartite governing framework. The Founders based this design on the presumption that ambition would counteract ambition, leading to sound policy and the protection of individual rights. What they hadn’t counted on was that the Article I branch — which was supposed to be the first among equals — would renounce all pretense toward anything remotely resembling ambition.

The political story of the last few decades can be told through the cascading consequences of this fundamental breakdown in our governing order. Congress can barely muster the gumption to perform its basic task of funding the government, let alone respond to public demand for effective policies and programs that meet their evolving conception of our social problems. The results of this atrophy in statecraft — erosion of social trust, economic dislocation and stagnation, and democratic backsliding — have predictably ensued.

While nearly everyone agrees that Congress is broken, the proposed fixes notably break down along partisan lines. Bizarrely, conservatives cling to the notion that an increasingly super-charged administrative state has emasculated Congress — that somehow, despite our constitutional design of checks and balances, the assertion of ambition has provoked not a reaction of ambition, but one of timidity. But what this myth lacks in sense, it more than makes up for as a convenient platform for their preferred legal and policy reforms to weaken the administrative state — for example, ending Chevron deference — all while conspicuously offering little when it comes to actually empowering Congress.

It's long past time to consider a different pathway forward. The only way to fix Article I, and restore its policymaking primacy, is to fix Article I. And, as the California waivers fight illustrates, clearing out legislative gimmicks like the CRA will be a vital part of that agenda.

According to Senate Republicans, the California Clean Air Act waivers are an egregiously bad policy because they enable the state to set automobile fuel efficiency standards for the entire country. So, how would a truly empowered Congress to respond effectively to this problem? What would that look like? (This, of course, is not to endorse the view that these waivers are a bad policy.)

No doubt, it would involve members of both parties coming together to study and the debate the relative merits of potential alternatives for achieving a better balance between the need for a national automobile market and states’ ability to address their unique air pollution and transportation challenges. Better still, it might involve members of Congress passing comprehensive legislation to cost-effectively decarbonize the automobile sector across the entire economy in a way helps the industry maintain its strength while avoiding the worst consequences of climate change.

Conspicuously, though, the CRA resolutions Senate Republicans just rammed through do not even attempt to raise these questions, much less find acceptable answers. By leaving California’s ability to obtain these waivers in the future fully intact, their underlying problem remains unaddressed. Moreover, the CRA’s expedited procedures for passing resolutions all but foreclose any serious opportunities for meaningful deliberation.

But here’s the real problem with the CRA: The powerful loophole it creates through the Senate’s filibuster strongly disincentivizes lawmakers from availing themselves of the regular order legislative process to pursue lasting, expertise-informed policy solutions to our society’s greatest challenges. After all, why go to the trouble of building bipartisan support for lasting reforms to the Clean Air Act, when a narrow partisan majority is all you need to undermine the law’s implementation, even if just on an ad hoc basis? Indeed, legislation to amend the Clean Air Act to repeal its California waiver provision has pending since March but received no serious attention during the CRA waiver fight. (Not that I endorse that legislation, of course; but perhaps it could have provided a vehicle for bipartisan negotiations over sensible reforms.)

Instead, the incentive is for lawmakers to continue expanding the CRA’s loophole so that they can try to cram as much of their policymaking agenda through it as possible. If we’re being honest, is that what the fight over the California waivers was really about? The waivers didn’t meet the statute’s already capacious definition of a “rule” that would make them eligible for rescission through its expedited procedures. So, the “rational” response was to spurn the parliamentarian and press ahead by expanding the loophole. Other options — including amending the CRA itself to cover these kinds of waivers (which, also would have to overcome the filibuster) — were off the table.

It is more vital than ever that we attend to these corrosive effects that legislative gimmicks have on our republican form of government. We are now on the cusp of Senate Republicans taking advantage of another legislative gimmick to advance their policy agenda: budget reconciliation. As with the CRA, conservative lawmakers want to cram as much of their agenda into the narrow confines of reconciliation rules as they can (which also bypass the filibuster requirement), rather than to build the kind of bipartisan agreement and compromise that would be required for regular order lawmaking.

We will never fix Congress until we restore regular order lawmaking as the rule rather than the exception. If removing gimmicky loopholes past the filibuster won’t accomplish that, then perhaps we ought to get rid of the filibuster altogether.