The Congressional Review Act (CRA) provides Congress with an expedited procedure to review and potentially overturn final rules issued by federal agencies. CRA resolutions can be passed by simple majority and, if they become law, they prevent agencies from reissuing a “substantially similar” rule in the future. Despite being touted as an avenue for congressional oversight, the CRA is often deployed as a partisan tool that replaces agency expertise and democratic consideration with internal power plays relying on razor-thin majorities.
During this Congress, approximately 1 out of 5 resolutions included in the analysis below have become law, primarily targeting environmental, energy, financial, and consumer protection regulations. Without meaningful debate and with the stroke of a pen, years of careful consideration, hundreds of thousands of public comments, and painstaking research were undone in the span of mere days.
What does the CRA resolution landscape look like?
The figure below shows what the CRA pipeline looked like during the first few months of President Trump’s second term. Out of the 76 resolutions introduced covering agency actions from the last months of the Biden administration, Congress took 21 up for a vote, with 16 of those being taken up for a second vote and later becoming law. This means that 21 percent of the resolutions that were introduced made it to the president’s desk. The U.S. Environmental Protection Agency (EPA) was the most common target of joint resolutions (23), with the Department of Energy (DOE) and the Consumer Financial Protection Bureau (CFPB) with eight and seven, respectively.
By looking at those resolutions that were ultimately taken up for votes, is there anything that separates them from those that were not? It was hard to distill any conclusive information that allowed us to predict which resolutions would ultimately make it to the floor.
Perhaps unsurprisingly, the most reliable predictor seemed to be the level of support resolutions had. We see this reflected in two different ways: the number of cosponsors a resolution had when it was introduced, and whether a resolution had a companion bill in the other chamber.
When looking at the number of cosponsors, those resolutions that made it to the floor had an average of six cosponsors, versus 2.8 in the case of those that never received a vote. This represents a suitable proxy to gauge the initial level of intra-chamber support for a resolution. We also see that those resolutions that had a companion bill seeking to revoke the same regulation in the other chamber tended to be more likely to receive a vote, which we take to be a proxy for cross-chamber support (76 percent for those that received a vote vs. 53 percent for those that did not).
In total, those 76 resolutions targeted 47 different rules (lawmakers introduced companion resolutions in the House and Senate for many rules), which represents a 30.5 percent increase from the first Trump administration, when only 36 rules were targeted by CRA resolutions. The following figure breaks down these data by agency. Joint resolutions aimed to roll back rules developed by 24 departments and agencies, which is two more than in 2017 (22). Overall, Congress was more aggressive in its pursuit this time around, compared to Trump’s first term.
Although Congress targeted myriad rules, two main policy issues received a disproportionate amount of attention: (1) climate and environmental and (2) consumer and financial protections. Unsurprisingly, these categories of regulations have also long been among conservatives’ favored targets. As such, this use of the CRA underscores how the law is deployed more as a partisan weapon than as a tool of legitimate congressional oversight of the executive branch. The chart above captures this pattern clearly, with the EPA and DOE being the most common agency targets, followed by the CFPB. Out of the 47 rules targeted by CRA resolutions, 22 are primarily environmental or climate rules, and 17 are consumer protection or financial rules. These two categories alone account for almost 73% of regulations.
Significantly, a closer look at the rules that were repealed significantly undercuts any serious argument that CRA supporters make that the law is a crucial tool of Article I oversight that advances our constitutional system of checks and balances. The most controversial of the resolutions — the three California Clean Air Act waivers — are especially instructive, not least because they required an illegal expansion of the CRA’s scope to accomplish. Even still, the resolutions did not address what conservative opponents of those measures claimed was the core of the problem: that California should have the effective authority to set fuel economy standards for the nation. From this perspective, these resolutions are best seen as an act of pure destruction rather than an act of the kind of policymaking primacy that Article I of the Constitution assigns to Congress.
This basic feature characterizes many of the CRA resolutions from the current Congress. While most generally relate to environmental and consumer protections, as noted, an equally important distinguishing feature is just how random and low-stakes most of the rules are. One resolution targeted a rule that made a small change to the kinds of analyses that offshore energy development projects had to make — hardly a policy that presented a huge impediment to affected industries. Another made technical changes to how appliance efficiency standards are implemented. Still another limited motor vehicle use in a single national recreation area. That these are the kinds of policies that conservatives were being reduced to repealing under the CRA would seem to refute any notion that our regulatory system has come out of balance within our constitutional framework. On the contrary, these resolutions seem more indicative of individual lawmakers’ idiosyncratic pet peeves.
Another striking feature of many of this year’s resolutions is that they repealed so many rules — 6 of the 16 — that are explicitly required by law. In other words, the Trump administration (or more likely, a future administration) is still obliged to issue some replacement rule, notwithstanding the CRA’s bar on replacements that are in “substantially the same” form. Beyond this limitation, Congress, through the CRA, has given the responsible agencies zero guidance on what those replacements should look like. Fulfilling this basic responsibility would seem to be the bare minimum of policymaking responsibility that Article I expects from Congress. Yet, the CRA’s procedures do not require it, and, if anything, actively discourage lawmakers from honoring this responsibility.
Significantly, the vast majority of these resolutions addressed rules covered by the CRA’s unique “carryover provision,” which enabled the current Congress to introduce resolutions on rules issued late in the Biden administration. Though this phase of the CRA’s use has now ended, it does not mean that conservative lawmakers will not have other opportunities to target more agency actions from previous administrations with resolutions of disapproval.
For example, some in the conservative legal community have called for the administration or Congress to take action against older guidance documents that were not submitted for consideration under the CRA on the belief that they did not qualify as “rules.” (Congressional Republicans already began pursuing this strategy recently for a Resource Management Plan issued by the Department of the Interior for North Dakota.) Similarly, conservative policymakers may seek to continue using the CRA against agency adjudications or orders following the fight over the California Clean Air Act waiver.
Anti-democratic, anti-expertise
Agency rulemaking is a years-long, painstaking process that brings to bear agency expertise, careful deliberation, and significant public input to inform the final substance of a rule. One of the more troubling aspects of the CRA is that it nullifies all of this hard work and replaces it with a disapproval process that is nakedly partisan and discourages careful consideration. In short, it takes what’s best about the rulemaking process and replaces it with what’s worst about Congress.
The rules that were recently rescinded clearly illustrate the vast gap in policy expertise and deliberation — including the amount of time spent on studying and debating a given policy and potential alternatives — that exists between the rulemaking process and the CRA. On average, each CRA resolution that became law spent, on average, just shy of 82 days under consideration in Congress, with the quickest turnaround being 39 days and the longest being 136 days. By contrast, each regulation repealed by CRA resolutions spent an average of almost four years (1,411.3 days) from its first identifiable milestone (appearance in agency regulatory agenda, publication of the general Request for Information, or from the announcement of inquiry) to the final rule publication. (Notably, this approach to counting the length of time for rulemakings is necessarily an underestimate, given that the first identifiable milestone follows some amount of agency work.)
The lengthy rulemaking timelines reflect the extensive procedures that agencies undertake when developing new rules. Many of these procedures seek to ensure that rules reflect careful and expertise-driven consideration of the evidence available in the rulemaking record before the agency. As a result, rules typically are backed up by thousands of pages of regulatory impact analysis, as well as other profoundly detailed legal, technical, economic, and scientific analysis that can take years to produce. Agencies take special care in producing these supporting analyses, knowing that a failure to do so can lead to the rule being struck down on pre-enforcement judicial review, sending them back to the drawing board.
For example, EPA’s rule on emission standards for hazardous air pollutants from rubber tire manufacturing spent almost two and a half years in the making, while the resolution that rescinded it — H.J.Res.61 — took 87 days from its introduction to the president’s signature.
Even worse is the case of CFPB’s rule relating to “Overdraft Lending: Very Large Financial Institutions,” which took almost 13 years for the agency to complete and was struck down by a CRA resolution in just 85 days.
Other rulemaking procedures are aimed at promoting democratic goals of public engagement and incorporating the widely dispersed knowledge of the public into the final rule design. Notably, those rules that were overturned received a combined total of 240,596 public comments, in addition to requests for information, in-person and virtual meetings, webinars, and public hearings.
For example, the Overdraft Lending rule included more than 48,000 public comments, which led to extensive reviews of the original text of the rule. Similarly, the EPA’s “methane fee rule” (formally “Waste Emissions Charge for Petroleum and Natural Gas Systems: Procedures for Facilitating Compliance, Including Netting and Exemptions”) received over 50,000 public comments during the rulemaking process.
In contrast, the CRA establishes expedited procedures for approving resolutions with limited debate or deliberation among lawmakers. For instance, the CRA requires lawmakers to act within a certain timeframe, which discourages careful fact-finding and study. CRA resolutions need not go through a markup or other legislative hearing. In fact, one of the provisions in the law empowers a small minority in the Senate to move a resolution out of committee and directly onto the floor. The CRA also strictly limits the language that resolutions can contain. So, lawmakers are discouraged from discussing or considering preferable alternatives to the rule being targeted for rescission. It also limits the debate on the Senate floor, which prevents members from trying to persuade each other on the relative merits of the rule.
Comparing the voting margins for the individual CRA resolutions to those voting margins for the statutes that authorized the regulations that were ultimately repealed using the CRA provides another indicator of the democratic deficit that the CRA creates. In general, the pattern that emerges is that these authorizing statutes (for which data were readily available) enjoyed broad, bipartisan support. On average, authorizing statutes passed by a margin of 221 votes in the House and 49 votes in the Senate. In contrast, the CRA resolutions typically passed by narrow, partisan margins. In other words, the broader anti-democratic story of the CRA is that it enables narrow partisan votes to sabotage the hard work of bipartisan majorities of earlier congresses.
With the exception of two outliers (H.J.Res.25, which passed by a 160-vote margin, and H.J.Res.88, which by an 82-vote margin), the vote margins for most of the CRA resolutions were relatively small and partisan. The overall average margin was 30 votes, while excluding the two outliers brings the average margin down to 17, which is close to the partisan distribution of seats in the House.
In the Senate, the average margin was 10 votes. Again, though, this number is skewed by two outliers: S.J.Res.3 (which passed by a margin of 43 votes) and H.J.Res.25 (which passed by a margin of 42 votes). Removing these yields an average vote margin of seven, which is close to the Senate’s current partisan breakdown.
Putting the public at risk of harm
The most immediate impact of these CRA resolutions is that they will rob the public of the protections that the rules were intended to provide. That means increased emissions of toxic air pollution, greater risk of customers being cheated by dishonest banks, and more money wasted on unnecessary energy costs.
According to the available documents, the aggregate economic benefits of just a few of these rules would have been over $5 billion each year. The rescinded environmental and energy rules would have generated significant ecosystem and public health benefits by sharply reducing industrial emissions of a wide variety of air pollutants, including carbon dioxide, sulfur dioxide, nitrogen oxides, methane, mercury, and volatile organic compounds (VOC).
For example, energy conservation standards for walk-in coolers and freezers would have generated public health benefits worth up to $3.33 billion from reductions in sulfur dioxide, nitrogen oxides, and mercury.
CRA resolution sponsorship and contributions from special interests
Powerful special interests are the ultimate beneficiaries of this assault on our regulatory system. Financial disclosure data retrieved from OpenSecrets.org reveal that the sponsors of this year’s CRA resolutions received significant campaign contributions from the very sectors that are set to benefit the most from these rollbacks. These contributions do not necessarily prove the existence of an explicit or implicit quid pro quo, of course. But the appearance of impropriety they create risks further undermining public confidence in the integrity of our governing institutions.
The following three charts — each focused on different categories of rules targeted by CRA resolutions — help provide a detailed visual accounting of the contribution “ecosystem” surrounding the use of the CRA in the current Congress. By plotting data on the extent of contributions made to every CRA sponsor during their most recent electoral cycle, they produce “heat maps” showing where the financial relationships between individual lawmakers and relevant sectors are most intense. Overall, these data reveal a strong correlation between intensity of financial relationship and CRA resolution sponsor.
Energy and environmental rules were the most common target of CRA resolutions, and the oil and gas sector was the biggest contributor, having poured almost $8 million in campaign contributions in the past electoral cycle. In fact, the top ten recipients (out of 25) account for almost $7 million, showing how these contributions are targeted and strategic. Real estate is the next big contributor with $7.4 million. Other important contributors are automotive ($2.7 million), general contractors ($2.2 million), crop production and basic processing ($2.2 million), and electric utilities ($2 million). Overall, senators tend to receive the largest contributions, which correlates to their institutional power and the length of their electoral cycles.
Geography is another key driver of campaign contributions, as the fossil fuel industry illustrates. Senators from states with a large industry footprint — such as Texas (Sen. Ted Cruz, the largest recipient), Louisiana (Sen. John Kennedy), Oklahoma (Sen. Markwayne Mullin) and West Virginia (Sen. Shelley Moore Capito) — are some of the top recipients in our dataset. Moreover, all of them sponsored CRA resolutions that targeted rules aimed at curbing greenhouse gas emissions, from different sources.
In the House, Rep. August Pfluger (TX) provides an especially noteworthy illustration of this dynamic. Compared to other lawmakers, he is heavily dependent upon the oil and gas industry, with their contributions making up 23 percent of the total funds he raised during the last electoral cycle. Pfluger introduced H.J.Res.35, which undid the EPA rule implementing a methane fee for oil and gas operations, delivering a big win for the oil and gas industry. Pfluger has introduced similar legislation in the past, further showing the intimate alignment between his behavior in Congress and the fossil fuel industry.
The second most common targets were financial and consumer protection rules. For this category, campaign contribution data reveal a strong overlap between CRA resolution sponsors and the industries that would potentially benefit from the regulations targeted by those resolutions. Contributions from the securities and investment sector (stockbrokers, bond dealers, hedge funds, and private investment firms) reached a combined total of over $11.5 million. Other important industries in this category are insurance ($4.8 million), lawyers and law firms ($4.6 million), commercial banks ($3 million), business services ($1.9 million), and miscellaneous finance ($1.9 million).
The top recipient in this category of rules is South Carolina Sen. Tim Scott, who received more than $12 million from industries with interests over financial and consumer protection rules — nearly 50 percent more than the next closest senator who cosponsored a relevant CRA resolution. Scott’s specific contributions include $3.6 million from the securities and investment sector, $1.5 million from insurance, $1.2 million from lawyers and law firms, $0.9 million from pharmaceuticals and health products, $0.7 million from commercial banks, and $0.6 million from miscellaneous finance. Critically, Scott sponsored S.J.Res.18, a resolution that overturned the Consumer Financial Protection Bureau’s Overdraft Fees Rule, allowing financial institutions substantially more discretion in structuring overdraft fee programs to impose additional costs on their customers. The companion resolution in the House was sponsored by Rep. French Hill (AR), who is also a top recipient of financial interests.
Another important category of regulations relates to toxic substances and labor protections. Although none of the resolutions for these rules was taken up for a vote in either chamber, sponsoring legislators still received important contributions from benefiting sectors. For example, Rep. Andrew Clyde (GA), who sponsored a resolution targeting the regulation of decabromodiphenyl ether and phenol (a plasticizer and flame retardant commonly used in electronics, aviation, industrial machinery, and the automotive industry), received almost 20 percent of his total campaign contributions from the miscellaneous manufacturing, electronics, and aviation sectors.
Conclusion: The CRA should be repealed
A careful analysis of how the CRA has been used during the current Congress raises troubling questions about the law’s usefulness and relevance. The data confirms that the CRA fails as a congressional oversight mechanism.
Overall, the collection of repealed rules was remarkably random, achieving very little of this Congress’s policy agenda on their own. Many of them were highly esoteric and relatively “low stakes.” The few that did have enormous ramifications were left vulnerable to the CRA due to unusual circumstances — such as the EPA’s methane fee rule — or involved abuses of the CRA itself – such as the California Clean Air Act waivers. Moreover, 6 of the 16 repealed rules must still be replaced, though with little guidance on how that ought to be accomplished. Again, this shows how ineffective the CRA is as a deregulatory tool.
The above analysis also reveals the various harmful consequences that flow from the CRA’s use. The CRA undermines democracy by removing public engagement and public knowledge, as well as agency expertise, by replacing careful and expertise-driven consideration of all available evidence with partisan-driven maneuvers that rely on the thinnest of voting margins and little, if any, public debate.
If effective congressional oversight of executive branch agencies is the ultimate goal, lawmakers should work to repeal the CRA and find better tools for overseeing agencies, without putting the public, the environment, and our democratic values at risk.
Data from OpenSecrets.org is used under Creative Commons license Attribution-Noncommercial-ShareAlike 3.0 United States.
