The Congressional Review Act: The Case for Repeal

Download PDF
by , , and

In the current congressional majority’s push to dismantle safeguards for health, safety and the environment, no tool has been more useful than the once-obscure Congressional Review Act (CRA). The law allows for the repeal of duly enacted regulatory safeguards using procedures that bypass meaningful deliberation and scrutiny – skipping committee consideration and sidestepping the Senate’s 60-vote cloture requirement.

As of spring 2018, it had been used to repeal 15 such safeguards that protected safe drinking water; kept weapons out of the hands of people suffering from mental illness; secured the privacy of Internet users’ browsing data; allowed consumers a realistic way to fight back when cheated by banks, credit card companies and other financial institutions; promoted greater access to family planning and other health care services for women in low-income and under-served communities; and more.

To make matters worse, congressional leaders, with enthusiastic support from corporate backers, have launched an effort to expand the reach of the Act to cover the “guidance documents” agencies create to help regulated industries understand how specific rules will be interpreted and enforced.

In The Congressional Review Act: The Case for Repeal, CPR’s Thomas McGarity, Rena Steinzor, James Goodwin, and Katherine Tracy write that the CRA is “designed to short-circuit Congress’s deliberative process and allow narrow partisan majorities to attack broadly popular public safeguards on behalf of politically powerful interests. … By unwinding the significant public health, safety, environmental, or financial security protections these safeguards would have otherwise delivered, each CRA resolution that is adopted boils down to a direct assault on the public interest.”

The report details the 2017 and 2018 CRA targets, examines the affected industries’ campaign contributions to key Members of Congress supporting repeals, compares the narrow margins by which the CRA repeals were adopted with the broad support for the underlying legislation the rules seek to enforce, and focuses in on the hasty process by which the repeals were “considered” and adopted.

As the authors conclude, “If there were any doubts about what a dangerous law the CRA is, the first year of the Trump administration surely laid those doubts to rest. Nearly every American will experience some harm – to their health, safety, or pocketbook – as a result of the frequent abuses of the CRA’s procedures. Moreover, these abuses will only further corrode public esteem for Congress as a policymaking institution while reinforcing the strong partisan divisions that have reduced Congress to a paralyzed and dysfunctional mess…. In short, the CRA has proved to be an irredeemably bad policy tool, with numerous disadvantages and no offsetting advantages.”


CRA by the Numbers

With Astonishing Speed

Because of the CRA’s expedited procedures, little deliberation was exercised over whether Obama-era rules should have been preserved. The whole process – from start to finish – took a few weeks at most, a lightning-quick pace by inside-the-Beltway standards. The resolutions were not the subject of investigative hearings or even much in the way of floor debates.

In contrast, the eliminated rules were often the result of several years’ worth of careful analysis, carried out by some of the leading experts in the relevant fields of engineering, law, medicine, and science.

  • 16: Number of resolutions of disapproval signed by President Trump. See the list.
  • 41 percent: Nearly half of all the legislation Trump signed between Inauguration Day and May 18, the day the CRA window finally closed for rules issued during the Obama administration (14 of 34 bills), were CRA resolutions. Since May 18, Trump has signed 1 additional CRA resolution.
  • 3 years vs. 48 days: On average, the 15 rules that were eliminated through the CRA had been in the works for roughly three years each. In contrast, it only took an average of 48 days to eliminate each of those 15 rules using the CRA’s procedures. The 16th agency action that Congress rolled back using the CRA – the Consumer Financial Protection Bureau’s auto lending bulletin – was a guidance document rather than a rule. (Because guidance documents do not have the independent force of law and are often intended to reduce regulatory uncertainty for affected industries, this form of agency action typically does not undergo the same extensive development process as rules.) It took a total of only 33 days to eliminate that action using the CRA’s procedures. Learn more.
What We’re Losing

Using the CRA’s backdoor procedures, Congress was busy denying us all the considerable benefits that these rules would have otherwise delivered. Those benefits include more jobs, improved environmental protections, greater financial security, safer workplaces, and better stewardship of our tax dollars by government entities at all levels.

  • 156: Number of additional jobs that would have been created on net per year between 2020 and 2040 by the Department of the Interior’s stream protection rule. Not only would this rule have created jobs, it would have also delivered significant environmental benefit to a region of the country that has been ecologically devastated by mountaintop removal mining. Among the rule’s environmental benefits, the agency projects that it would have improved water quality in 263 miles of intermittent and perennial streams per year and led to reforestation of 2,486 acres of mined land per year.
  • 2: Number of rules that were eliminated through the CRA that were developed in response to Government Accountability Office (GAO) reports highlighting ineffective government programs. Learn more.
  • 10: Number of rules that were eliminated through the CRA that would have generated the benefit of saving some government entity – federal, state, or local – money by making more efficient use of their limited resources. Learn more.
Politics Before People

When it comes to vote tallies, the contrast between the CRA resolutions and the statutes that authorized the rules that were eliminated could not be clearer. Thanks to the CRA’s expedited procedures, the anti-regulatory members of Congress were able to use their narrow partisan majorities to push through their agenda of defeating the implementation and enforcement of laws that enjoy broad public support.

  • 46 and 4. These numbers represent the narrow margins, on average, by which each of the CRA resolutions passed the House and Senate, respectively.

By the narrowest of margins. All the CRA resolutions that Congress took up during the first several months of 2017 passed by slim, almost entirely party-line votes, underscoring what a nakedly partisan exercise the resolutions were. In the Senate, none would have mustered the 60 votes required for passage under regular Senate rules. Learn more.

  • 224 and 60. In contrast, these numbers represent the wide margins, on average, by which each of the main authorizing statutes for the rules that were eliminated through CRA resolutions passed the House and the Senate, respectively.

Thwarting the public will. Nearly all of the rules eliminated through the CRA were authorized or required by earlier legislation that passed with broad bipartisan support, raising the specter that these resolutions were used to defeat the effective implementation of laws that enjoy strong public backing. If Congress couldn’t enact legislation to weaken these laws without causing a public uproar, should they have used a sneaky, backdoor route like the CRA to accomplish the same objective? Learn more.

Corporate Influence

The beneficiaries of this assault on our safeguards were the anti-regulation forces’ corporate patrons. Financial disclosure data reveal that the lead sponsors of these CRA resolutions received significant campaign contributions from the very industries that most directly benefited from the regulatory rollbacks that the resolutions accomplished. The secretive nature of these resolutions, combined with their direct benefits for favored corporate interests, created the perfect breeding ground for corruption. Even if these CRA resolutions were not the result of an explicit or implicit quid pro quo, the appearance of impropriety they created was sufficient to weaken public esteem for our governing institutions, further undermining the legitimacy of our democracy.

  • $465,950. This is the total of campaign contributions that Sen. Jim Inhofe (R-OK) – the lead sponsor of the Senate’s version of the CRA resolution to repeal the SEC’s anti-corruption rule – received from the oil and gas industry between 2011 and 2016.

Pay to play. The lead House and Senate sponsors of many of the CRA resolutions that Congress considered have received significant campaign contributions from the industries that stood to benefit from the regulatory rollbacks. At worst, the CRA invites outright political corruption; at best, it creates an appearance of impropriety that threatens to do lasting damage to the legitimacy of our democratic institutions. 

Hear More

Listen to report author James Goodwin discuss the CRA on KALW Radio in San Francisco, or on Federal News Radio, or on the Bradcast (Pacifica) (starting at around 20:10).