Won't Get Fooled Again
Breaking down the CRA, and its implications for the Biden regulatory agenda
I try to reserve The Reef for those times when I have something worth sharing—something that adds value, something deeper than an ambient thought unleashed in 280 characters. This is one of those times.
If you’re deep enough into politics, policy, and process to read this site, you have probably at least heard of the Congressional Review Act (CRA). But what is it really, and why does it matter?
This week on The Lobby Shop I sat down with a group of my Bracewell colleagues to break down the law and its implications for the current moment. I promise if you care about policy it’s 30 minutes well-spent.
What is the CRA?
The CRA is a means by which Congress is afforded the opportunity to review executive branch regulations, and—if it finds a given rule lacking—pass a resolution of disapproval that, if adopted by both chambers and signed by the President, overturns the rule and ensures that the agency in question cannot promulgate a “substantially similar” rule in the future.
When is the CRA in effect?
Under the CRA, Congress always has the ability disapprove of newly promulgated rules within 60 legislative days of them being published in the Federal Register, and indeed the Senate just disapproved of two of them during the most recent work period. Even before the most recent spate, President Biden had already vetoed nine such CRA resolutions in the 118th Congress alone. Due to its privileged nature, a disapproval resolution may not be filibustered, and any member can offer a non-debatable motion to proceed. As a result, when the Senate isn’t otherwise busy, which is often, floor time tends to be filled with nominations and CRA votes.
So why are we talking about it now?
Two reasons. First, because of the distinct possibility of a change in administration. No President is going to sign a resolution unwinding his own regulatory agenda, nor that of his party; but the possibility of losing the White House to the other side creates significant tail risk under another key provision of the CRA, the look-back period. If Congress doesn’t have a full 60 legislative days to review a given rule before departing sine die, the clock starts anew under the next Congress, creating exposure for an incoming majority of the new President’s party to go on a deregulatory CRA spree. (Note: the nature of the law, and the implications its “substantially similar” prohibition render the CRA a fundamentally asymmetrical tool. There’s a reason the GOP trifecta of the 115th Congress nuked 16 Obama regs and the Democratic majorities under Biden disapproved of just 3 from the Trump era.)
And second, because it explains the administration’s race to get every possible rule to the Federal Register in its final form before it might be exposed to look-back risk as early as late May.* Just this week the Biden EPA rolled out the cornerstone of its green regulatory agenda, requiring power plants to dramatically limit carbon emissions by 2032, part of a series of rules released ostensibly for Earth Week, but really out of an abundance of CRA-minded caution.
*-This is a subject of some debate, and the date had a wide range of outcomes heading into previous Presidential elections. In 2016, the Congressional Research Service pegged the relevant date as June 13; in 2020 they estimated it to be significantly later, August 21. This discrepancy owes to a more active pandemic-era lame duck session, and the necessity of employing pro forma days in a divided Congress. Smart people whose analysis I trust (like Ringwiss below) believe the real date will fall later in the Summer. At any rate, OMB is pressuring agencies to get rules out the door so as to avoid any potential exposure.
But Republicans are going to lose the House anyway…
I wouldn’t be so sure about that, nor is that a bet the Biden administration is willing to make. While it’s possible to envision a scenario where a razor thin Trump victory could coincide with just enough Democratic pickups in blue states like California and New York, it is nonetheless very likely that the House outcome will mirror that of the Presidential. These outcomes are happening on the same night among the same voters, after all. Erroneously compartmentalizing congressional and presidential projections is precisely what got handicappers into trouble in 2020. And with the Senate looking very likely to go Republican in any event, the unthinkability of a GOP House is a dubious reason to take that sort of risk with core elements of the administration’s regulatory legacy hanging in the balance.
The lesson is one they learned the hard way, as a flat-footed Obama administration took a Hillary Clinton win for granted, while failing to ensure that its election-year rules were sufficiently protected. And it’s easy to see why—for the first 20 years of its existence, the CRA was only used one time, on a long-forgotten OSHA ergonomics rule; but in the wake of Trump’s upset victory, the intersection of partisan appetite and political opportunity turned a once-sleepy law into Republican’s favorite and arguably most effective tool.
Win or lose, they won’t get fooled again.
We cover all this and a lot more in the episode. Give it a listen.
Media Roundup
Some recent hits you may have missed
The Lobby Shop: Liam and company discuss what’s left on the Congressional agenda
Liam’s interview on The Daily Blast with Greg Sargent of The New Republic
Liam on the Politicology Weekly Roundup
The common error in calculating the 60-day lookback period is to forget about pro-forma sessions. A legislative day is still a legislative day even if no legislative business is conducted. You need to account for two pro-forma sessions during each week of a district work period.
The date of 22 May seems to be floating around; that is definitely wrong. My rough estimate is that the cut-off will be sometime in mid-August. (Last year, CRS worked it out to be 12 September; it will be earlier this year because Congress won't be in session—using that phrase loosely, of course—in October.)