Congressional Review Act (CRA) Vote Explanations
Over the past three months, congressional Republicans are using a legislative tool called the Congressional Review Act (CRA) to roll back many of the critical safeguards that were enacted by the Obama Administration to protect Americans from dirty water, polluted air, unsafe working conditions, abusive financial institutions, among others.
The CRA was first used in 1996 by former Speaker Newt Gingrich, and gives Congress 60 legislative days to overturn a final rule after it has been submitted to Congress by the Administration. Under the CRA, both the House and Senate must pass a resolution of disapproval that is signed into law by the President. Not only does this overturn years of work, but the CRA also prohibits agencies from ever submitting a substantially similar rule again. This is not an effective way to govern, and abuses the separation of powers established in the Constitution by preventing the Executive Branch from doing its job. Regulatory reform is needed, but this is a dangerous way to try to do it. Democrats and Republicans should come together to address over-regulation in a thoughtful and collaborative way that protects the American public, not big business.
In the past month alone, congressional Republicans have used the CRA eight times. Up until this year, the CRA has been used only once to overturn a rule during the 21 years since it was first enacted. There used to be bipartisan respect for the fact that this was a bad idea.
Below are my vote explanations for all of the CRAs that have passed the House thus far:
Vote Explanation H.J. Res 36 — Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the final rule of the Bureau of Land Management relating to “Waste Prevention, Production Subject to Royalties, and Resource Conservation”
I voted against this legislation, which would overturn the Bureau of Land Management’s “Methane Waste Final Rule,” which sets limits on oil and gas extractors’ intentional leakage and burning of natural gas that is produced on federal lands. While we already permit producers of oil and gas to develop assets on federal lands as a source of revenue and natural resources, I think it is important that producers are subject to reasonable requirements related to how they extract these natural resources.
The methane rule was projected to save 41 billion cubic feet of natural gas per year, and is not only important from an environmental perspective (in terms of wasted gas and greenhouse gases released into the atmosphere), but it is also wasteful from an economic perspective. The intentional leakage and loss of this gas, as opposed to the capture, conservation, and use of it as a fuel, is a forfeiture of enough energy to power 740,000 households and earn up to $14 million in revenue. This was a commonsense rule, and I strongly oppose the GOP effort to overturn it.
Vote Explanation for H.J.Res. 37 — Disapproving the final rule submitted by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration relating to the Federal Acquisition Regulation
I voted against H.J.Res. 37, which would roll back important transparency standards in federal contracting. Specifically, this congressional disapproval resolution would roll back a rule enacted by the Obama Administration requiring disclosures of violations during the past three years for companies bidding on contracts worth $500,000 or more.
Under the final rule, a prospective contractor would have to disclose whether it was subject to a civil judgment, arbitration decision, or administrative determination for violating one of 14 labor laws, such as the Fair Labor Standards Act or the Occupational Safety and Health Act (OSHA).
Business groups say that this so-called “blacklisting” rule would violate due process rights and impose an undue burden. However, numerous studies by the Government Accountability Office (GAO) and other researchers show that federal contractors with histories of serious, willful, and repeated violations of labor, employment and non-discrimination laws continue to win contracts. A 2013 report from the U.S. Senate Committee on Health, Education, Labor & Pensions found that:
- The federal government purchases more than $500 billion in goods and services from the private sector each year. Companies that receive government contracts employ an estimated 22% of the American workforce, approximately 26 million workers.
- Almost 30% of the top violators of federal wage and safety laws are also current federal contractors.
- 42 American workers died (from 2007–2012) as a result of OSHA violations by companies holding federal contracts in 2012.
- 32 federal contractors received back wage assessments among the largest 100 issued by the Wage and Hour Division of the Department of Labor between 2007 and 2012.
- 35 of these companies violated both wage and safety laws.
- The amount of taxpayer dollars spent on contracts has more than doubled since 2000, with most of the growth occurring in the area of contracts for services.
Services purchased include weapons development and assembly, human resource services, health care, information technology systems development and implementation, and a wide range of service-employment such as janitorial services, call centers and security services.
The federal government should not be doing business with contractors that do not comply with high labor standards. Frankly, I cannot find a reasonable justification for repealing a regulation that increases transparency and ensures worker protections. Congressional Republicans are setting a dangerous precedent with this legislation, and I will continue to oppose these efforts to undermine our bedrock labor laws.
Vote Explanation for H.J. Res 38 — Disapproving the rule submitted by the Department of the Interior known as the Stream Protection Rule
I voted against H.J.Res. 38, which would overturn the Stream Water Protection Rule. This regulation was finalized by the Office of Surface Mining Reclamation and Enforcement in December 2016.
The Stream Protection Rule (SPR) updates decades-old mining regulations to protect the public health of surrounding communities from the impacts of mountaintop removal mining. It would protect and restore 6,000 miles of streams and 52,000 acres of forest over the next 20 years. It’s worth clarifying that this rule only prohibits mountaintop removal if streams and rivers would be destroyed by these mining practices. The rule was the result of thirty years of activism from West Virginia coal miners who saw their homes covered in coal ash and their countryside destroyed as coal mining companies began dumping debris and waste in nearby waterways.
This is a commonsense rule and Republican opposition to it is nothing more than a giveaway to coal companies — often at the expense of coal miners and their families — that fails to recognize the environmental and public health consequences of repeal.
Vote Explanation for H.J.Res. 40 — Providing for congressional disapproval under chapter 8 of title 5, United State Code, of the rule submitted by the Social Security Administration relating to implementation of the NICS improvement Amendments Act of 2007
I voted against H.J. Res 40, which would overturn a rule enacted by the Social Security Administration (SSA) that would require beneficiaries of Social Security Disability (SSDI) who have long-lasting and pervasive mental impairment to be submitted to the National Instant Criminal Background Check System (NICS). This rule simply fulfilled a statutory requirement that federal agencies submit records for those individuals who are deemed incapable of administering their own benefits, and are accordingly assigned a third-party advocate, to NICS to prevent them from purchasing a firearm. Simply put, this rule would prevent those with severe mental impairment from purchasing a weapon.
Critics argue the rule stripped Second Amendment rights from people who are not mentally ill to the point of being a danger to themselves or others. However, people entered into the system are currently able to file an appeal or be adjudicated if an individual was incorrectly placed on the registry.
The rule was implemented after police discovered that the Virginia Tech shooter would have been prevented from buying a firearm had NICS been properly operational. The Obama Administration strengthened the sharing provisions between agencies to ensure shooting incidents like the one that took place at Virginia Tech never happen again.
The Social Security Administration is now prevented from ever promulgating another rule that would implement this information sharing. For all the reasons outlined above, I strongly opposed the repeal of this common sense gun reform action.
Vote Explanation for H.J.Res. 41 — Providing for congressional disapproval under chapter 8 of title 5, United States Code, of a rule submitted by the Securities and Exchange Commission relating to “Disclosure of Payments by Resource Extraction Issuers”
I voted against H.J. Res 41, a Congressional Review Act that would overturn a bipartisan anti-corruption amendment of the Dodd Frank Wall Street Reform and Consumer Protection Act. The amendment requires public companies registered in the United States to disclose payments of $100,000 or more made to foreign governments for resource extraction.
This boils down to U.S. oil and gas producers disclosing payments made to foreign governments. It is a simple anti-corruption measure strongly supported by international and domestic aid organizations, including the Catholic Council of Bishops, who have said that overturning such a provision would have “moral and human consequences as well as economic and political impact.”
It is worth noting that these payments often go to extra-governmental accounts, which prevents the average person in these nations from benefitting from the sale of these resources. This is an example of the “resource curse,” whereby resource-rich countries have less economic growth, less democracy, and worse development outcomes than countries with fewer resources due to the corruption of top-level officials.
This was a good governance provision aimed at curbing corruption, and improving the management of public finances. As Isabel Munilla, a senior policy adviser to Oxfam America put it, “anyone who believes that corruption is wrong should vote against this resolution; a vote for this resolution is a vote for corruption.” I strongly believe overturning this rule will increase corruption and detrimentally impact citizens of these resource-rich nations.
Vote Explanation for H.J.Res. 42 — Disapproving the rule submitted by the Department of Labor relating to drug testing of unemployment compensation applicants
This CRA would repeal a Department of Labor (DOL) rule finalized in August 2016 specifying that state unemployment compensation (UI) programs can drug test an applicant if their most suitable job would be in a limited number of occupations that routinely require drug tests for workers.The DOL was directed to issue a rule governing drug testing of unemployment compensation applicants by the Middle Class Tax Relief and Job Creation Act of 2012. The law stipulated that state unemployment compensation programs could drug test applicants only if they had been fired from their last job because of illegal drug use, or if their occupation routinely requires drug tests.
House Republicans want to strike this rule to give states the ability to drug test any jobless Americans applying for unemployment benefits. However, courts have generally considered drug testing a form of search and seizure and held that it is unconstitutional to require it without reasonable suspicion unless the government can show a special need. There is no evidence of higher drug use among jobless Americans, and this legislation stigmatizes unemployed workers who have earned the right to access UI through their service to their employer.
Despite the argument that this measure will help people come to terms with substance abuse, most states that have tried drug testing programs do not offer or fund treatment for people struggling with substance abuse.
For these reasons, I voted against H.J.Res. 42.
Vote Explanation for H.J.Res. 57 — Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Education relating to accountability and State plans under the Elementary and Secondary Education Act of 1965
I voted against this resolution, which would overturn a rule issued by the Obama Administration on school accountability standards following passage of the Every Student Succeeds Act (ESSA).
Specifically this regulation outlines and clarifies several measures of school success for states to use in their accountability systems, including academic outcomes and school quality. States can choose their own indicators to measure school quality as long as they are supported by research that shows a positive effect on student learning. States would also have to identify schools in need of comprehensive improvement or targeted improvement, which includes consistently underperforming subgroups of students.
While there was some stakeholder opposition to this rule as it was being drafted, the final rule made significant improvements and garnered the support of teachers unions, the National Governors Association, and the School Superintendents Association.
With this resolution, we are rolling back important accountability metrics that help to ensure that our kids receive a high-quality education, which is one of the best investments we can make in our future.
Vote Explanation for H.J.Res. 58 — Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Education relating to teacher preparation issues
H.J.Res. 68 would repeal a Department of Education rule issued by the Obama Administration that requires states to use specific performance indicators to measure the effectiveness of teacher preparation programs. These metrics include placement and retention rates of graduates, student learning outcomes, and surveys of teachers and their employers.
The rule helps ensure that no state rate a program as effective or higher absent evidence that teacher candidates go on to generate satisfactory student learning outcomes in K-12 classrooms. Under the regulation, states and schools would be required to include the new ratings on the annual report cards that are submitted to the Education Department and the state, respectively. The information also must be made available on their websites.
In addition to repealing this important accountability tool, H.J.Res. 58 also limits the eligibility for federal Teacher Education Assistance for College and Higher Education (TEACH) grants. TEACH grants provide as much as $4,000 a year to eligible college students who must agree to teach for four years in a high-need field at a school serving students from low-income families. This CRA would limit TEACH grants to students only in programs that states have designated as effective for at least two of the previous three years.
House Republicans introduced this CRA because they think the rule takes a “one-size-fits-all approach to how teachers are prepared for the classroom.” One of the primary responsibilities of the Department of Education is to maintain high standards for educators in our public schools. This CRA would remove the transparency and accountability we need to ensure that all of our students have equitable access to great teachers.
Final Passage of H.J.Res. 66 — Disapproving the rule submitted by the Department of Labor relating to savings arrangements established by States for non-governmental employees
I voted against H.J.Res. 66, which would overturn a Department of Labor (DOL) rule that supports state efforts to appropriately establish retirement savings plans. Due to congressional inaction to address the retirement security crisis, thirty states, including Massachusetts, have responded by implementing or pursuing the establishment of state-based retirement programs.
State programs automatically enroll employees who are not offered a workplace savings plan and enable them to establish an IRA through a payroll deduction. Additionally, state-based programs allow employees to opt out if they do not wish to participate, and minimal administrative burdens are imposed on employers.
Republicans argue the DOL’s rule could discourage small businesses from offering their own plans and lead to fewer worker protections. For the party that supports states rights, it is ironic that they would be pushing forward with legislation that would preempt the work being done at the state level to provide retirement security to the 63 million American workers without access to employer-based plans.
Vote Explanation for H.J.Res. 67 — Disapproving the rule submitted by the Department of Labor relating to savings arrangements established by qualified State political subdivisions for non-governmental employees
This CRA would repeal a DOL rule that supports eligible state political subdivisions’ (cities or counties) efforts to establish retirement savings plans — less than a month after it went into effect. The rule facilitates programs that require employers to automatically enroll their employees into individual retirement accounts (IRAs) managed by a city or county.
It does so by providing a safe harbor for IRAs managed by certain state political subdivisions from the requirements of the Employee Retirement Income Security Act of 1974 (ERISA). ERISA sets standards for employer-based retirement plans and typically preempts state and local laws related to employee benefit plans. Cities and counties may qualify for this safe harbor if they: have the authority under state law to require employer participation in the program; have a population equal to or greater than the least populous state (Wyoming); aren’t within a state that has its own auto-enrollment program for private sector employees; have a retirement plan for their own employees.
According to the DOL’s final rule, only three cities — New York City, Philadelphia, and Seattle — were identified as having potential interest. In fact, New York City’s Comptroller has noted that 57 percent of the city’s private sector workers do not have access to a retirement plan at their place of employment.
Given the millions of private sector workers who do not have access to employee-sponsored retirement plans, this CRA would undermine efforts underway by cities and municipalities throughout the country to provide these workers with access to retirement savings. That is why I voted against this misguided legislation.
Vote Explanation for H.J.Res. 83 — Disapproving the rule submitted by the Department of Labor relating to “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness”
I voted against H.J.Res. 83, a CRA that would overturn an Occupational Safety and Health Administration (OSHA) rule clarifying that employers have a continuing obligation to record injuries and illnesses in the workplace, even if they fail to comply with OSHA’s recordkeeping requirement at the time the injury occurred.
The Occupational Safety and Health Act (OSH Act) of 1970 authorizes OSHA to prescribe regulations requiring employers to maintain accurate records of work-related deaths, injuries and illnesses, other than minor injuries. OSHA requires employers to record injuries on the “OSHA log” (a form listing each incident) within seven days of the injury, develop a case summary with the details of each incident, post an annual summary of the OSHA log, and maintain these records for five years.
Since 1972, every Administration has interpreted the employer’s obligation to make and maintain accurate records to be ongoing from the date of the injury or illness until the five-year retention period expires. A 2012 D.C. Circuit Court of Appeals decision (known as Volks Constructors) upended this 40-year precedent.
The Court held that OSHA did not have the authority to issue a citation for the “occurrence” of a violation that continued beyond the 6-month statute of limitations set forth in the OSH Act. Additionally, the Court stated that OSHA’s regulation provided no continuing obligation for employers to record injuries and illnesses, even if they fail to comply with OSHA’s recordkeeping requirement at the time the injury occurred.
However, Judge Merrick Garland issued a concurring opinion in the case in which he disagreed with the majority opinion’s reasoning. In his view, OSHA’s practice came from the way it implemented its previous recordkeeping regulation and not the statute itself. Citing this opinion, OSHA finalized a new rule on Dec. 19, 2016, to clarify its “longstanding intention to fully implement that authority.”
Overturning this rule would potentially allow employers to avoid any penalties for systematic injury underreporting over many years and mask longstanding workplace hazards that need correction. OSHA is only able to inspect a workplace, on average, once every 140 years, due to its limited resources.
OSHA needs reliable injury and illness data to target its scarce resources to those workplaces that present the greatest hazard to workers. That is why I opposed this legislation.