Kevin Dietsch/Pool via AP
Senate Majority Leader Chuck Schumer speaks during a news conference following the Senate policy luncheon on Capitol Hill, March 23, 2021.
Democrats in Congress have had months to comb through the archives of late-in-the-game Trump administration regulations and determine which ones to try to overturn using the Congressional Review Act. Under this 1996 legislation, Congress can, with a simple majority vote in both chambers, nullify regulations finalized in the previous 60 legislative days (in practice, this means anything Trump’s agencies finalized after last August).
The deadline for introducing such “resolutions of disapproval,” as they are called, was this past Sunday, April 4. A coalition of advocacy groups identified 28 different notable regulations that would be eligible and desirable for repeal, affecting a host of areas like immigration, the environment, LGBTQ and racial discrimination, critical habitats for wildlife, financial regulation, and long-haul trucking.
In the end, only six resolutions were offered. These resolutions have until May 21 to advance to the president’s desk in order to be eligible for nullification.
Unless and until the Senate changes the filibuster rules, there are no other pieces of legislation other than CRA resolutions that will both be ready in the next six weeks and need only a majority vote in the Senate. Democrats can certainly busy themselves with executive branch and judicial nominations while the mammoth American Jobs Plan and a to-be-announced social welfare companion are developed. But that leaves time to roll back harmful Trump-era rules, without subjecting Biden’s executive branch to lengthy, time-consuming, and legally vulnerable administrative procedures to reverse them.
However, Senate Majority Leader Chuck Schumer’s office has thus far not committed to giving all six of these resolutions a vote, after a query from the Prospect. And even this set of resolutions is quite a bit reduced from the last partisan transfer of power in Washington. After the Obama-Trump changeover, 16 rules were killed through CRA action. Republicans did not delay when put in this situation; the first CRA resolution passed on February 14, 2017, and by this time four years ago, 11 resolutions had advanced.
So why did the CRA process yield such a small set of options this time around, when the partisan roles were reversed? Obviously, Democrats weren’t certain they would control the Senate until after the Georgia elections in January, and between a late organizing resolution for the 50-50 chamber, an impeachment trial, confirmations for the entire Cabinet, and a $1.9 trillion COVID relief bill, there hasn’t been a lot of available floor time.
But a lot of the problem has to do with the difference between Democrats and Republicans in Congress when it comes to regulatory matters. Most Republicans have a regulatory reform staffer in their offices. Most Democrats don’t. As a result, the process was a scramble, funneled through a House and Senate Democratic leadership that had a muted, at best, interest in using the tool. Strong pushback outside of Congress finally yielded the handful of resolutions that did manage to beat the deadline. But even if this landed in a not-disastrous place, it’s an ominous signal that congressional Democrats are not fully committed to maximizing their power.
According to sources with knowledge of the process who asked to remain anonymous because of their ongoing work, Democratic leadership in coordination with the White House determined the scope of CRA. And the White House didn’t really deliver as much input as Congress expected, leaving a staff with limited knowledge of and interest in CRA to figure out what to do with it.
Introducing a CRA resolution does not commit Congress to a vote. Members could have been encouraged to introduce whatever CRA resolution they wished, and then build support for passage through advocates and among the caucus. That was not the path taken. Staffers for Democratic members were led to believe that “there is a cost to asking to do a CRA resolution,” according to one source. In other words, only resolutions given the green light by leadership would make it to the introduction stage.
This all presupposes that Democrats had a good set of goals for CRA. Although at least one House committee chair, Rep. Raúl Grijalva (D-AZ) of Natural Resources, told me that his committee was looking into what Trump-era rules to overturn even before the election, leadership didn’t go through the committees with the best knowledge of the relevant rules. Instead, they designated two members with nominal jurisdiction over CRA—Rep. David Cicilline (D-RI), whose House Judiciary subcommittee covers administrative law and procedure, and Sen. Gary Peters (D-MI), who chairs the Senate Homeland Security and Governmental Affairs Committee—to outline a universe of possible resolutions.
The process was a scramble, funneled through a House and Senate Democratic leadership that had a muted, at best, interest in using the tool.
On the House side, a memo explaining the process and its various deadlines went out. But because of the way the leadership was handling the process, the Senate necessarily had to make the calls. Leadership tried first to determine what resolutions could pass Congress, and then allowed only those resolutions to be introduced. They worked backward from the expected result, in other words. And if all that work had to be handled up front, then it was inevitable to get into a position where, a couple of weeks out, no resolutions were introduced.
Outside groups with expertise were also counseled, but asking them to elevate one priority over another put them in impossible positions politically. Most of the outside groups on regulatory issues operate in coalition, and asking them to make such choices would necessarily damage that partnership.
What ended up making it through had either significant congressional champions or broad coalition support. Reversing the Equal Employment Opportunity Commission (EEOC) “conciliation” rule, which damages the pre-litigation process where the agency tries to work out settlements with employers on anti-discrimination claims and makes costly litigation for victims more likely, was a priority of Sen. Patty Murray (D-WA) and Rep. Bobby Scott (D-VA) for some time. Literally hundreds of consumer protection groups demanded Congress act on the Office of the Comptroller of the Currency’s “fake lender” rule, which lets lenders launder high-cost loans through federally chartered banks to evade state interest rate caps. Trump’s Environmental Protection Agency rule rolling back monitoring and prevention of methane leaks at oil and gas wells had near-universal opposition among Democrats, making that a no-brainer CRA resolution.
Schumer formally committed last month in a letter to colleagues to using CRA for the EEOC and methane rules. The other resolutions—the fake-lender rule, a “sunset” rule that would require the Department of Health and Human Services to let all its regulations expire if they don’t submit a five-year review, a Securities and Exchange Commission rule that raised the threshold for investors to force a shareholder vote, and a Social Security Administration rule that changed administrative law hearings to make it harder to appeal decisions denying Social Security benefits—do not yet have that commitment.
Rep. Chuy Garcia (D-IL), one of the sponsors of the CRA resolution on the fake-lender rule, told Reuters that there is majority support in both chambers on that resolution. Of course, the way the process unfolded, it’s likely that all six of these have majority support, or they wouldn’t have been introduced.
Four of the six resolutions involve rules from independent agencies, where Biden may not have majority control for a while. Industry is split on methane, with companies like BP and Shell trying to green their image and opposing the Trump-era rule; that lack of unified opposition makes it easier for Democrats to pass the resolution. Similarly, many health care providers don’t want things like beneficiary payments to be subject to sunset every five years, putting obvious standards for children’s health programs and food safety on the chopping block. There aren’t likely to be many opponents there.
Some Democrats feared that, because under CRA a rule subject to disapproval cannot be reissued in “substantially the same” manner, this would hamstring the Biden administration in rulemaking. But Trump reissued rules that were stricken through CRA and nobody batted an eyelash. Plus, you would want to block the issuing of rules that enabled high-cost lending, or stopped shareholders from exercising their rights to raise proposals, or allowed polluters to spew harmful greenhouse gases like methane into the air.
Even if all six resolutions pass and all six harmful Trump rules get nullified, the process seemed unnecessarily cramped and poorly thought out, and required way too much outside pressure to get things moving. It’s hard to conclude from observing the process that Democrats wanted to get much done with CRA, despite it being a powerful tool that is not reliant on breaking a filibuster. It’s symptomatic of a party that should pay more attention to the inner workings of governance.
“Democrats get owned on regulatory issues day in and day out,” said one observer. “The problem is they didn’t want to do the work.”
