It’s the Final Countdown: The Congressional Review Act explainer you didn’t know you needed
In light of the recent FCC decision to rollback protections for ISP consumers, pro-net neutrality advocates haven’t given up on reversing current FCC Chairman Agit Pai’s decision and are now drumming up support among their base to put pressure on Congress to use a little-known but increasingly used weapon called the Congressional Review Act (CRA). This law is designed to give Congress additional tools to issue a formal disapproval of federal agency rulemaking decisions like the FCC rule, thus nullifying the decision. The problem with this strategy? It ignores the law’s inherent flaws as a tool designed to pass legislation that otherwise wouldn’t have seen passage. You will see by the end of the article that if Congress wanted to disapprove of a federal rulemaking, then they’d just use their usual legislative methods, which makes the CRA kind of useless.
But first, some context
The CRA doesn’t give Congress any new powers; it has always been Congress’ prerogative as the chief lawmaking body in the country to check federal agency “rulemaking” — the rules executive agencies like the FCC and EPA develop — to comply with the laws Congress pass. Rulemaking can be thought of as fleshing out the details that a provision in passed law left vague (either on purpose or accidentally). It’s an essential feature in our federal government to provide the law enough flexibility to adapt to changing circumstances. Still, federal agencies can and do take liberties with their interpretation of the legal code, and so Congress can step in and “realign” federal agency execution of law. This is the way our system works, or at least is supposed to work.
The CRA merely provides Congress with an additional vehicle to more easily (quickly) carry out this constitutional checking power. Congress does this by issuing a“disapproval” through a joint resolution, genetically the same as a House or Senate bill but used for unique situations like this one or slightly cooler situations like amending the constitution. But since joint resolutions also require the approval of both houses and the signature of the president, some constitutional scholars have argued that the CRA does not provide as much expediency as advertised. This is highlighted by the fact that most of the provisions in the Act affect the Senate, not the House who already has a method for pushing legislation quickly through: the House Rules Committee (but more on that in another article).
Suffice to say, the CRA is not the Deux ex Machina method that rulemaking abolishers were hoping for. For starters:
Congress can and does take more than 60 days to “disapprove” a rule
Most people who have heard of the CRA know there is a 60-day limit by which Congress must issue its disapproval, but actually the counter is broken up into three pieces and each piece counts days differently. Each ‘piece’ is a phase, triggered by different events.
The first phase is the initiation period in which the disapproval resolution must be submitted in either house within 60 “non-recess” calendar days of the agency’s formal announcement of the rule (not to be confused with the agency’s enactment date for the rule). In other words, any day in which either the House or Senate meets or any day in which the House or Senate is in adjournment (not in session) for 3 days or less counts. So if the House convened on a Friday and that following Monday, all four days (Friday, Saturday, Sunday, and Monday) would count. But if either the House and Senate met on a Friday but neither house met until the following Wednesday, then only that Friday, Saturday and Sunday would count. Basically, recess days are excluded from the count. Make sense?
Keep in mind that that was only to get a joint resolution into existence. Once it’s in existence in either house, the initiation period ends. Next is the action period which only concerns the Senate. To be clear, if the measure started in the House, then the action “counter” has not yet begun. It’s only for the Senate the count would start the day the measure were to cross over from the House or if the measure originated in the Senate. But there doesnt have to be only one resolution floating around Congress; the House and Senate can introduce their own joint resolutions such that both bodies have two disapproval resolutions being considered.
How are the days counted this time? By legislative days in session. Basically, only count the days the Senate convened. If the Senate held session for Monday, Wednesday and Thursday for that week, then the day-count is 3. So now you see why the counters may have different numbered days; the initiation phase is supposed to run out first.
But wait! The day-count is reset if Congress were to adjourn for the season like they almost always do at the end of summer or right before the winter holiday season. In that case, the day count for either the initiation or action period (depending on where the resolution was in the CRA process) would start back at zero on the 15th legislative day. In other words, that would be the 15th time either house were to convene after the previous adjournment.
All of this means that technically Congress could have an infinite number of days to pass a disapproval resolution if the action “counter” never reached 60 days (not that this would likely ever happen but it’s fun to think about).
So though the CRA process isn’t the fast-track mode net neutrality advocates were hoping for, it might not matter. After all, you would want Congress to have enough time to consider the resolution(s) and the rule it would seek to nullify, especially if it’s a particularly controversial one like this most recent FCC rule. And you wouldn’t want deliberation to be cut short just because the federal agency rulemaking announcement happened to be within, say, ten days before Congress was planned to go into seasonal adjournment. But all of Congress’ effort would probably be in vain because…
The President can and probably would veto any disapproval measure
Since the disapproval takes the form of a joint resolution, it needs the president’s signature which means the possibility of a veto, something the president would do if s/he thought the federal agency rule was sound (almost always) or if the provisions in the rulemaking were overly limiting. When a veto happens, Congress then has 30 legislative days to override the veto or present something more amenable to the president.
So one could argue, as I do here, that the joint resolution format weakens the very intention behind the CRA to rebalance power between the Legislative and the Executive. A joint resolution means a president’s signature, but the president is the head of the Executive Branch whose authority includes the federal agency issuing the rule, so there would be a high chance that the president would want to keep the rule intact especially if that rule is as overreaching as many are these days. If you were the president and you had an opportunity to attain more power, would you at least want to hold on to the option to exercise that power? By the way, this will surely be what happens if any joint resolution disapproving the FCC’s rollback decision makes it as far as the president’s desk; FCC Chairman Agit Pai is Trump’s appointee, so why would Trump vote against his own self interest? All the more reason why I predict that if any pressure on the FCC is created, that it comes from the states.
This might explain why the CRA only created one resolution of disapproval in the first 20 years of its life, one that was signed into law by President Clinton late into his last term and quickly reversed by President Bush in the beginning of his. Not exactly the greatest track record.
The CRA method doesn’t even pertain to the House
Remember what I said about the House Rules Committee? They are the primary body with which House leadership gets their priority legislation quickly out of committee, onto the floor, and passed expeditiously, CRA not required. Let me explain: normally each bill is subject to a certain “standard” debate rules that ensure each side of the aisle gets their fair say, but the Rules Committee provides a mechanism vis a vis a simple resolution attached to that particular bill that gives the bill unique debate rules applicable only to that bill. For instance, say you want to pass a tax bill in the House. If you’re Speaker of the House Paul Ryan, you’d first make sure it received due attention in the Republican-majority Ways and Means Committee. Then you’d have the chairman of the Rules Committee draft a simple resolution ensuring that when the bill reaches the floor it can only be amended in certain ways that would hurt minority party members’ ability to attach amendments to it or, more importantly, introducing needless amendments just to stall time.
This happens all the time and it’s probably why the CRA hardly mentions the House. The Senate, on the other hand, being the stalwart “deliberative” body that it is, would be in need of a method to quicken its normally slow process. But what if the House takes its time deliberating the bill, or doesn’t introduce one at all? No matter how fast the Senate may be in passing its joint resolution of disapproval, if the House doesn’t respond then it’s game over.
But even if both houses want to play ball, they may run into snags because…
The CRA is full of untested provisions that could throw the process in disarray
Normally a federal rulemaking is enacted 30 calendar days after it is promulgated (written into) the Federal Register or the date the rule is written to be executed if it’s a later date, but the CRA creates an exception for “major rules” that gives Congress a total of 60 calendar days to prevent the rule from becoming enacted. Yes, another 60-day counter to consider. This is the third phase, the waiting period. And you thought I made an error in my listing three phases earlier, didn’t you?
To be fair, the CRA defines a “major rule” as any rule whose enactment would have significant economic activity as defined by the Congressional Budget Office. Okay, but let’s go back to how waiting period days are counted.
For those of you keeping track of how each of the phases are counted, you might have already noticed an unintentional error in the language and execution of the law. Calendar days under the waiting period run out faster than legislative days under the action period since calendar days also include days in which the House/Senate didn’t convene. This means, technically, a federal rulemaking decision with “major rule” implications could faithfully wait until its 60 calendar days are up but still be subject to Congressional disapproval since Congress’ 60-day action period (which doesn’t count days met in session) hasn’t yet run out. In practice, what this means is a freezing of federal agency execution of law as those agencies wait for the real timer to run out, all the while law is not being faithfully executed.
The CRA still has its uses, though
There are a couple of provisions hiding within the CRA that could make it attractive to use over normal congressional deliberation. Though both the House and Senate may run competing joint resolutions, as long as both resolutions disapprove of the rulemaking’s major aspects, there is no need for Congress to enter into conference to iron out the details of each resolution. Another provision enables the resolution to avoid the Senate filibuster, making it easier to pass legislation even in Senates whose ideological makeup prevents either party from attaining 60 or more seats, something all too common lately.
So really the CRA is useful for when both houses and the president are in ideological alignment, as they are now (pre 2018 midterms) which might explain why the 115th Congress has passed 15 resolutions of disapproval (as of November 1, 2017).
Still, one has to question whether the CRA really proved the difference between 10 new resolutions or if those resolutions would have come about under such an ideal House-Senate-President alignment to begin with. One thing is certain: this latest FCC rulemaking is highly unlikely to be reversed using the CRA, though other unrelated rules may soon be on the chopping block.
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