June 29, 2017

Three Cheers for the Congressional Review Act

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

After more than 20 years of dormancy, Congress finally started to use the Congressional Review Act as intended this year — to seriously oversee the federal bureaucracy. So far, this Congress and President Trump have used the CRA to pass 14 laws disapproving regulations issued at the end of the Obama administration, and many more rules remain vulnerable because they were not previously sent to Congress, as the CRA mandates. Fans of the regulatory bureaucracy are not pleased; some are seemingly apoplectic.

The CRA requires agencies to submit all rules to Congress for review before they may go into effect. Congress then has 60 legislative days from the later of the rule’s publication or submission to disapprove the rule, using expedited procedures: The CRA specifies the text of the resolution; amendments are not allowed; and there can be no filibuster. If Congress acts and the president signs the resolution into law, it blocks the rule and forbids any substantially similar rule in the future without a subsequent congressional authorization in law.

The enactment of the CRA was a small but significant step toward restoring democratic accountability over the administrative state. Not only do elected officials have a meaningful opportunity to review agency rules without supermajority roadblocks, but voters also can hold them accountable for their use or nonuse of that power.

Until recently, the CRA was nonpartisan. It was signed into law by President Clinton after being co-sponsored by Senator Harry Reid — who claimed the CRA as one of his major accomplishments in his farewell address to the Senate last December. But the CRA has become unpopular with opponents of President Trump and those who dislike increased democratic control over costly regulations. Senators Cory Booker (D., N.J.) and Tom Udall (D., N.M.), along with Representative David Cicilline (D., R.I.), have introduced a bill to repeal the CRA. The bill is merely symbolic, but it is still surprising that elected officials would attack a statute that increases political accountability.

In a recent post for the Regulatory Review, Lisa Gilbert and Amit Narang of Public Citizen also bemoan the CRA. They describe Congress’s use of the CRA as a corporate conspiracy against the environment, the economy, and every American value except apple pie. Once you get past the overheated rhetoric that masks the absence of a serious argument, their CRA criticism boils down to two things: 1) that elected representatives can second-guess bureaucrats too easily; and 2) that the CRA’s anti-circumvention prohibition barring rules that are “substantially the same” as the ones disapproved is vague.

The first criticism lacks any logic. Congress cannot and does not invoke the CRA lightly. Many hundreds of rules submitted to Congress at the end of the Obama administration were eligible for disapproval. A target list of more than 200 rules was compiled for possible disapproval, but resolutions were introduced for only a few dozen. A mere 15 of the most controversial rules received serious consideration, resulting in 14 resolutions passing and one failing by a slim margin. This shows that careful deliberation went into deciding what rules to review and how to vote on them. If supposed corporate fat cats who hate all regulations controlled Congress, as the detractors allege, why weren’t 500 rules killed?

If supposed corporate fat cats who hate all regulations controlled Congress, as the detractors allege, why weren’t 500 rules killed? The CRA’s streamlined procedures are vital and prudent. Resolutions of disapproval require an up-or-down vote for rules, which should have an extensive record of comments on their merits and costs. Congress can hold hearings on CRA resolutions, but that is rarely necessary, especially since their text cannot be amended. The agency created a record supporting each rule. Thus, hearings would be the most help to those who seek to dispute that record, and hearings would be scheduled if the case for disapproving the rule was not already clear.

Since the text of the resolution is fixed, and extensive debate about the rule already took place in the agency rulemaking record, unlimited legislative debate would serve no point except to promote gridlock. By moving to a vote after a finite period of debate, Congress actually weighs in on policy choices, rather than leaving those decisions to unelected, unaccountable bureaucrats. That’s what democracy requires, even if activist groups such as Public Citizen oppose it.

Gilbert’s and Narang’s second criticism fares even worse. They claim that the CRA’s ban on rules that are “substantially the same” as a disapproved rule is too vague to be good law. If that phrase gives you heartburn, don’t read the hundreds of statutory provisions delegating broad power to agencies, authorizing them to regulate everything under the sun using extremely vague standards like “appropriate” or “in the public interest.” If “substantially the same” is so vague that the CRA should be repealed, then hundreds of other statutes will have to go, too — including most of those granting power to the administrative state.

Without the anti-circumvention provision, the CRA would not have been worth Clinton’s signature, because bureaucrats could easily defeat the law by reissuing disallowed regulations with only cosmetic changes. That would fundamentally defeat Congress’s and President Clinton’s effort to bring some democratic accountability to the administrative state. Gilbert and Narang close with a sideswipe on a use of the CRA that Pacific Legal Foundation and its partners advocate through their Red Tape Rollback project. Agencies have consistently failed to honor their obligation to submit many rules to Congress, wrongfully depriving our elected representatives of their opportunity to review them. For these rules, the window for Congress’s review has not yet begun. Thus, they remain vulnerable under the CRA once they are belatedly submitted.

Any different interpretation would be unworkable. If an agency’s violation of the submission requirement shields its rules from congressional review, why would an agency ever comply? Submission triggers Congress’s ability to propose resolutions of disapproval and starts the clock for the streamlined procedures. As the OMB and GAO warned for years, submission of rules to Congress is not optional. The CRA’s submission requirement is no more a “minor paperwork requirement,” as Gilbert and Narang characterize it, than is the filing of income taxes — or any other filing requirement mandated by regulators. Bureaucrats can’t require Americans to follow their rules until they first follow Congress’s rules and allow Congress a realistic opportunity to pass on their work.

The recent revival of the CRA has allowed the statute to achieve its purpose. At long last, Congress is more politically accountable for agency regulations. That’s evident through not only the praise of supporters but also the sharp criticisms of Public Citizen and other pro-regulation groups, which are the real “special interests” opposed to democratic action. We should continue to praise or criticize Congress’s use of the CRA as appropriate and let the voters be the judge.

Published by National Review

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