March 3, 2017

No time constraints for rolling back regulations

By Jeffrey W. McCoy Attorney

One key provision of the Congressional Review Act (CRA) requires streamlined procedures in the Senate when it votes to overturn an agency regulation. Specifically, when a resolution is referred to the Senate floor, it cannot be amended nor filibustered, and debate on the resolution is limited to a maximum of 10 hours.

Some reporters and Hill staff, however, mistakenly believe that the maximum 10 hour period for Senate debate cannot be reduced further without unanimous consent or a supermajority vote. This is incorrect. The relevant CRA provision limits debate on a CRA resolution  “to not more than 10 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate is in order and not debatable.” So, any Senator can move to limit debate time to under 10 hours.

Because such a motion is “not debatable,” it must be immediately voted on and only requires a simple majority to pass. Under traditional Senate procedures, a vote on a motion or resolution only occurs with unanimous consent or after 60 Senators vote to “invoke cloture,” which is a special motion to cut off debate. But when a motion cannot be debated, no cloture vote is required to cut off debate on it. As a result, a majority of Senators can vote to set the debate time on a CRA resolution of disapproval to any amount under 10 hours, including setting no debate time.

Senators should not feel constrained by a perceived requirement to give every CRA resolution 10 hours of debate time. Some rules may merit that much attention before an up-or-down vote, but the resolutions of disapproval themselves are not amendable, and the Senate rarely allocates 10 hours of debate to an unamendable, one-paragraph resolution.  Ultimately, the CRA allows a bare majority of senators to decide the amount of precious floor time each resolution will receive (up to 10 hours) and how many regulations are rolled back.

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