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Feb. 9, 2025 01:50-02:51 - CSPAN
01:00:53
Discussion on the Congressional Review Act
Participants
Appearances
r
reginald dwayne betts
00:43
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Speaker Time Text
unidentified
Democracy.
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Next, a look at how the Trump administration may use the Congressional Review Act on Biden administration policies.
On the panel, congressional investigation lawyers, a political science professor, and a representative from the U.S. Chamber of Commerce.
The legislation gives Congress the ability to review and vote on any federal regulations within 60 days.
This was hosted by the Federalist Society.
Good afternoon, everyone.
Oh, sorry loud.
Thank you all for joining us.
My name is Setlana Gans.
I'm a partner at Gibson Dunn and the co-chair of the Federalist Society Antitrust Executive Committee.
We are a proud sponsor of today's event, along with the Financial Services Practice Group, Administrative Law Practice Group, and the Telecommunications Practice Group.
So we are pleased that you're all here with us.
Before we get started at introductions, I wanted to share my sincere thanks with fellow Executive Committee Member Tom DeMatio from the Senate Judiciary Committee for hosting us today and providing this exceptional space for today's important discussion.
I will be introducing the moderator and the panelists very briefly and turn it over to our moderator, Mike Fergoso, who is going to lead our discussion on the Congressional Review Act.
Mike previously served as a chief counsel to Senate Republican leader Mitch McConnell and as chief counsel for the nominations and constitutional law on the Senate Judiciary Committee.
We have Steve Bella, who is Associate Professor of Political Science, Public Policy, and Public Administration and the co-director of the George Washington Regulatory Study Center.
It has a wealth of information on its website and a handout has been provided to you as a sample of its important work on this issue.
Steve currently serves working on several projects related to congressional oversight of regulatory policymaking and transparency and participation in state rulemaking.
Next, we have Amanda Neely, who is counsel at Gibson Dunn and a member of the Public Policy Congressional Investigations and White Collar Practice Groups.
Amanda has extensive previous Capitol Hill experience including serving as the Director of Governmental Affairs for Senate Homeland Security and Governmental Affairs and General Counsel to Senator Rob Portman.
She also served in other Capitol Hill offices including as oversight counsel for the House of Representatives Committee on Ways and Means.
Next we have Kim Ham.
She leads Mayor Brown's congressional investigations practice and also provides strategic counsel to financial institutions on key regulatory and legislative matters.
She formerly held high-level government positions including chief counsel to the chairman of the SEC and general counsel to the speaker of the U.S. House of Representatives.
Next, we have Tom Wickham.
He is a former parliamentarian of the U.S. House of Representatives and currently serves as Vice President and Managing Director of Governmental Affairs at the U.S. Chamber.
Tom's career on Capitol Hill spanned over 25 years, beginning under Speaker Newt Gingrich and concluding under Speaker Nancy Pelosi.
So we are all thrilled that you are here today.
We will have a QA session at the end.
This session is for you, for you to learn about the CRA process and procedure.
So, we want to make sure that we answer any questions you may have.
So, at any time during this conversation, we encourage you to ask any questions, and we will be glad to take them.
So, with that, thank you so much for being here.
And I'll turn it over to the moderator, Mike Fragoso, to start our discussion.
Thank you.
Thanks for Svetlana.
Thanks, everyone, for being here.
This is obviously a timely issue that we're starting a new administration with unified government eight years ago.
I think it was really in February that this really got going with CRAs.
We did about 17 of them during the last Trump administration, reversing Obama rules.
And so, hopefully, the Senate and the House are ready to hit the ground running to get rid of some of these Biden rules over the coming months.
So, I guess to start with, we'll go to Amanda over here as to what is the Congressional Review Act?
What are the relevant rules?
What kind of impact can it have?
Thanks, Mike.
It is so great to be back here, and thanks very much to Svetlana for organizing this event and to FedSOC for hosting it.
I think it's an important event to hold at this moment because I remember being in your shoes in 2017 when the CRA was kind of a not a new statute, but it had been a very sleepy statute for a long time.
And we all kind of learned it together.
Mike and I were here on the Hill together, and it was a little bit baffling at first, and then we got it underway, and I think it was 16 or 17 CRA resolutions back in 2017.
So, I think that will be a very productive part of your year this year.
So, it's great for you and your bosses to get a good understanding of how the CRA works.
So, if you weren't here in 2017, the CRA is a kind of a tricky little statute.
It's a transparency statute and a statute that gives Congress just more oversight of the administrative state.
It requires federal agencies to submit final rules to Congress and to the Government Accountability Office before the rules can take effect.
And in fact, actually, back before 2017, there was a question, a bunch of agencies kind of forgot that part of the process of having rules take effect.
So, there was a question actually if the look back period on these rules could go much farther back than just 2016 because a lot of them had never actually been submitted.
I think probably the administration has figured that part out now.
So, after a rule is submitted to Congress and the GAO, any member of Congress can introduce a joint resolution to disapprove of that rule.
If it's finalized within the last 60 days of the Senate session days or 60 legislative days of the House during one session of Congress, Congress gets a renewed look back session in the new Congress.
And that's where we are right now.
And Steve's going to go into a lot more detail about these timelines.
I know that didn't sound all that clear, but you've got a handout in front of you that I think talks about that.
And Steve will also dive into that.
And Congress really, it can consider a CRA resolution at any time.
The only time that it really happens very often is when you have change of the president to a new party and then also both houses of Congress being controlled by that same party.
So it's a somewhat rare configuration of alignment, but it is what we saw in 2017 and is now what we see today.
And so after introduction, the joint resolution is referred to the appropriate committee of jurisdiction depending on the topic of the regulation.
The House then follows more or less its usual course, and it can pass a CRA resolution by majority vote, as it normally can.
And then the Senate, because it is the Senate, has some special procedures.
How many of y'all are actually Senate staffers versus how many of you are Senate staffers?
Okay, and then how many are House staffers?
Thank you for walking over here.
We really appreciate it.
So for the U House staffers, This is a little bit less relevant, but it is helpful to understand these fast-track procedures.
Also very helpful.
I'll put a plug-in for understanding the Senate procedures during reconciliation.
That's another topic that will be coming up for you sometime soon, and the Senate has a lot of special procedures there.
But back to the CRA.
Once the CRA resolution is sent to a committee, if the committee does not report that resolution, 30 senators can band together and file a petition to discharge the resolution from a committee.
So if you happen to see a CRA resolution sitting around a committee and you think, gosh, this isn't moving fast enough, and my boss really wants to get this discharged, then work to get 30 or 29 of your colleagues together, write a letter, get it discharged.
Then it will go to the floor.
And then the CRA resolution is privileged, meaning that the Senate cannot proceed to other business.
The vote can't be postponed.
So you're going to be considering that CRA resolution.
Debate on CRA resolutions is really quick.
It is limited to 10 hours divided equally between either side.
Of course, the Republicans probably are going to say we don't really need five hours of debate on this.
They can also pass a non-debatable resolution or motion to limit debate.
So some of the debate can happen very, very quickly on the CRA.
So if you're writing vote recs for your boss, be on top of the CRA resolutions because those votes are going to come up really fast.
Make sure that you're signed up for the cloakroom emails that are telling you when these votes are coming up so that you can get those vote recs out.
The joint resolution itself may not be amended, and then the Senate can pass it by a majority vote.
And then one other interesting aspect to the CRA, which we will be getting into later on the panel, once Congress passes a disapproval resolution and the President signs it, the agency may not reissue a rule that is in substantially the same form, that's the quote, substantially the same form, unless Congress passes a law authorizing that rule.
What substantially the same form means is kind of an open question.
So in some cases, your bosses might look at a regulation and say, well, I like half of this, or I like kind of the direction they're going in here, but I want some things changed.
Because we don't know what substantially the same form is, exercise caution in passing a CRA resolution where you think that there does need to be regulation in that space going forward because we don't know what courts might do with a new regulation that is written without congressional authorization.
So with that, I'll pass it over to Steve to give you more of the nuts and bolts of how this works.
Great, thank you.
Before descending to the depths of the CRA, I'd like to say just a couple of things about big picture, some principles, some purposes to keep in mind.
And the way I view it is there are two uses, main uses of the Congressional Review Act.
The one that we're here today to talk about, because of the configuration of a new Republican administration with Republican majorities in both chambers, we're here to talk about the use of the CRA to disapprove late-era Biden regulations, if you will.
But I want to highlight that there's a different purpose, and that is the CRA and resolutions of disapproval are often used as messaging devices, as instruments to signal a policy stance, as position-taking, however you might want to think about it.
So the reason I mentioned this is that over the history of the Congressional Review Act, which dates back to 1996, there have been a total of 20 regulations disapproved.
16 of those came during the first Trump administration, three during the Biden administration, and one during the Bush administration, George W. Bush administration.
So that's 20 of examples of that usage.
In that time, though, there have been 461 resolutions of disapproval introduced in either the House or the Senate.
And that usage has been increasing exponentially in recent years.
So in the 118th Congress, that one Congress accounts for 208 of the introductions that I just mentioned, so nearly half of all of the resolutions introduced in CRA history.
And if we drill down even further, in 2024, last year alone, 158 introductions.
All of those, or not all of those, yeah, all of those were introduced outside of what we'll talk about with this look back period.
None of them, to put it differently, were introduced in the transition from a president of one party to a president of another party who's coming into office with same party majorities in both the House and the Senate.
And that specific situation is really essentially about the only condition when we'll see resolutions of disapproval become law.
There's one exception to that.
One of the 20 resolutions of disapproval that has been enacted occurred outside of this transition period.
We could talk about that.
It's an interesting case.
But by and large, that's when the tool is used for disapproval.
Yet we see all kinds, really the vast majority of congressional action on the CRA, if you will, has occurred outside of this transition, outside of this look back period.
And so I just want to highlight that as really the most common use of resolutions of disapproval.
Now, to get to the task at hand today, according to the House parliamentarian, the look back window opened on August 16th.
So what that means is that any rule issued from August 16th till the end of the 118th Congress, that is now treated as being issued last Friday, January 31st.
And so in other words, Congress's look back window opened just a few days ago for all of those rules issued since August 16th, again until the end of the 118th Congress.
I would suggest, highly plug GW, our Regulatory Studies Center, we have a CRA dashboard.
You can see that in your handout.
There are 1,337 rules that are eligible for disapproval.
Of course, not all of them are going to be interesting.
Just to slice and dice it a bit, 37 of the rules in the look back window are economically significant, those rules that have the biggest projected annual impacts on the economy.
There are 74 other rules that are significant for some other reason.
And again, all of that, you can find information about all of those rules on our website, and the handout steers you in that direction.
If we look back to the first Trump administration, there were 16 disapprovals.
And I want to highlight, because if we think that past might be prelude to the future, where were Where was the interest?
Where was the action in disapproving regulations at that time, eight years ago?
Areas of policy where there was more than one rule disapproved.
Labor and employment, finance, financial sector regulations, environment and natural resources, education.
So those might be areas that you could imagine would be of interest to the new Congress, to the Trump administration.
Specifically, and this is also in your handout, with some colleagues at the Regulatory Studies Center, we've been tracking potential rules that we think might be of interest.
So I'll just highlight a couple of those.
There's an EPA rule on charges for methane emissions, an HHS rule on Head Start, an EPA rule on drinking water and lead pipes, the so-called lead pipe rule.
There's an FDA rule on tobacco and minors.
So you might look to our website.
Certainly members of Congress have talked publicly about rules that are on their radar screens, so to speak.
There are groups around town who are advocating for particular positions who are also circulating their lists of rules that they'd be interested in targeting under the Congressional Review Act.
So noting that, one last thing I'll say is that there have been a handful of resolutions of disapproval introduced already in this Congress, and some of those are rules that I've mentioned, the lead pipe rule, for example.
So in sum, what I'd expect, and why we're here today, is in this look back window period that started on last Friday, now this is that limited window when Congress can take action to actually use the tool to disapprove rules.
What I will expect to have happen after this look back window closes in a couple of months, then you will see Democrats using the CRA as a messaging tool to signal the rules coming out of the current administration's agencies that they're unhappy with.
You'll see a swing, I think, from most of the interested action being on the Republican side.
It'll switch and Democrats will be the prime movers in introducing resolutions of disapproval.
Thank you, and I'm happy to answer questions about any of these details, either during the session or afterwards.
Thank you.
And yeah, I think it's worth noting you have all these potential rules out there to be disapproved.
If you're interested in them, the way to do it is, I mean, there's a lot of rules out there.
There isn't a whole lot of time to disapprove them necessarily.
So you want to avoid traffic jams.
So you want to talk to Thune's office if you're in the Senate.
You want to talk to the parliamentarian to figure out the timing.
And then you want to talk to the Committee of Jurisdiction on it.
And the Committees of Jurisdiction should all be working on this already.
But that goes to some differences between the Senate and the House.
What are the differences between the House and Senate procedure here?
Tom, you're the expert on House procedure.
Thank you so much for having me on this important topic.
I was served in the House Parliamentarian's Office for 26 years, including at the outset of the Congressional Review Act.
My tenure started in 1995.
The act was enacted in 96.
And throughout that time, as Steve mentioned, thousands and thousands of regulations have been subject to Congressional Review Act disapproval.
Yet only 20 of those regulations have been disapproved using that act.
And I'd like to think that one of the factors is the procedures associated with the Congressional Review Act.
And I'm glad that we have this forum to kind of demystify that procedure.
It really is a tale of two procedures.
The day counts that Steve referenced associated with the look back period and the day counts associated with how long the fast track is open are obscure and tedious.
And for a parliamentarian to tell you something is obscure and tedious, you can really take that to the bank.
But by contrast, the other side of the coin, the procedures attached to the joint resolutions of disapproval that your bosses will be introducing are rather simple and attractive.
The text of the joint resolution is static.
It is established by the law.
And it's very rare that I can read you the entirety of a bill in a setting like this, but I will do that for the joint resolution of disapproval.
Every one of them will read the same that Congress disapproves the rules submitted by the Agency X relating to the Rule Y and such rule shall have no force in effect.
That's it.
That's all it can say.
It's not amendable and it's not subject to the filibuster.
So that simplicity is something that has made it attractive and as Steve pointed out was really seized upon in that first Trump administration with seeing 16 of the 20 overturned during that time period.
Then following that, the first years of the Biden administration seeing three rules overturned in that segment of unified government.
The differences between the House and the Senate are pretty clear.
There are very few, a very minimal amount of procedures associated with the CRA in the House.
The only one is that a Senate product, a Senate joint resolution of disapproval that is passed is held at the desk.
And that changes the calculation in the House with regard to a discharge petition, but it's really of no consequence to a large amount of these activities.
Instead, in the House, a joint resolution of disapproval will most likely be considered under a rule from the Rules Committee, just as most of the other legislation is brought forward.
On the Senate side, as was pointed out by Amanda, there is a timeline whereby the expedited procedures of discharge from committee apply and that Discharge and the consideration of a joint resolution is limited to a mere 10 hours on the Senate side.
So, her advice was very good in that you need to be very vigilant with regard to you see a CRA coming up, it's going to come up and there will be a vote on it in a very timely fashion.
Once again, I would say that in the practice of a consideration of a joint resolution of disapproval, checking with that committee of jurisdiction is so critical.
And once again, there's something simple about this.
That has already been determined.
Every regulation that is submitted to Congress under the Congressional Review Act has already been referred to committee on the House side.
So, you already know which committees that you're dealing with.
And then, that kind of three-legged stool of checking with the committee, checking with the leadership, checking with the parliamentarians, is made a little simpler by the fact that everybody knows the text and everybody knows that that text is not changing.
My current employer, the U.S. Chamber of Commerce, has targeted three rules for overturning via the Congressional Review Act.
Those are in your handout, and along with Steve and his mentioning of some of the regulations that are available due to the look back period, I'm available to answer questions on the specifics of those if folks are interested.
Thank you.
As you say, these are pretty simple things to write.
But, Tom, Kim, are there any further best practices for writing one of these resolutions that you would recommend?
Well, I'll start.
As Tom mentioned, the best practices are mandated in the statute, so that's the text of the resolution.
I do think there are sometimes questions.
Should you put in a preamble?
You know, members might want to message why they're disapproving.
I think Tom can explain why a preamble isn't a good idea.
But, you know, the other thing that comes up that is sort of a drafting point is what if you want the rule to be reissued?
What if there was a statutory mandate?
We've seen this a few times.
There was a statutory mandate to issue a rule.
Congress disapproved it.
How do you provide guidance, if any, to the agency to reissue that rule?
And so you will see, and we'll talk about some of these in a bit.
You know, the SEC had a rule that was disapproved and reissued, the resource extraction rule.
And when the SEC went to reissue the rule, it looked at things that Congress had said in the congressional record.
And so I think there are opportunities if members want to message why the disapproval was made to do that.
But I might just turn it over to Tom to explain the preamble point, which is important.
Yes, as we said, the text is required by statute.
And any addition to that text, preamble, report, sense of Congress, any of that is going to knock it off the fast track.
So these things that may have entered the legislation in terms of findings or preamble is something that is going to need to be included in your boss's statements on that.
Kim brings up a very important point, one that we keep assessing at the U.S. Chamber of Commerce is what is the consequence if your disapproval regulation is enacted?
What does the agency revert back to?
And that can be a strategic question for you all as to whether or not you're going to pursue a joint resolution of disapproval.
or another one of the legislative tools that's available to you.
And having that answer for your boss before they ask that question or before someone from the agency or an opponent to your joint resolution says, oh, we like that because it's going to revert back to this old rule, which we either like better or that the agency is going to interpret in a way that may be of consequence to the debate.
So that's just a helpful practice tip.
And Kim is really the expert for when a joint resolution of disapproval is enacted, what does the agency do next in terms of addressing that subject matter?
One of the unique features of the CRA is that it doesn't just kill the rule that's in its crosshairs, but it ostensibly has preclusive effect on any substantially similar rules in the future.
The contours of that are really kind of unclear.
For example, one that we did during the Trump years, we got rid of the FCC privacy rule that included, as part of it, a number of data breach reporting requirements, which the current FCC has simply taken those and enacted those as a separate rule.
Are those precluded because we killed it as part of a previous one?
It's currently in litigation in the Sixth Circuit.
Kim, you've dealt a lot with this.
How should people think about the preclusive effect?
How important is it?
How does it wind up getting dealt with by the agencies, by the courts?
Sure.
So in some sense, the question of whether the preclusive effect is real or strong is answered by the fact that very few rules have been reissued after they've been disapproved.
But I don't think you can stop the analysis there, as Mike just mentioned, because a rule can be disapproved and the agency might say, well, I'll get to that policy choice or that requirement a different way.
Maybe I'll reissue part of the rule.
Maybe I'll, you know, look at my enforcement or examination authorities.
Maybe we'll issue guidance.
And so it's not, I think it would be really interesting if someone did an analysis of each of the rules that have been disapproved and what really happened in practice at the agencies.
There have been a couple of examples, though, where rules have been reissued.
The two that I'm aware of are our rules.
There was a DOL rule about drug testing for unemployment benefits, drug testing by the states, and the SEC resource extraction rule that I mentioned before.
Both of those rules had statutory mandates, though.
So to just give a little bit of background, it's helpful to understand the SEC's approach.
Dodd-Frank imposed a requirement for the SEC to issue rules relating to the disclosure of payments to foreign governments or the United States government by resource extraction issuers.
And these are essentially publicly traded companies in the United States that are engaged in oil, gas, mineral development.
The purpose of this rule was really anti-corruption, global anti-corruption, transparency.
It was not something within the mission of the SEC.
And I think part of that is why the SEC struggled with this rule so much.
So the rule was, final rule was issued in, I think, 2010, was vacated by the courts.
Second final rule issued in 2016, disapproved in 2017 with the wave of the first Trump administration disapprovals.
Third rule was reissued when I was at the SEC in 2020.
And the way the agency approached it was took very seriously that the statutory mandate had not gone away.
So there had been a disapproval resolution for a rule that was intended to meet this mandate, but that doesn't negate the statutory mandate.
So you have that on the one hand.
And then we looked at the rule in 2016 and we thought about the substantially the same language and thought, well, what does that mean?
Can we change things around the margins?
Can we just change some of the timing or little parts of the disclosure requirement?
And we ultimately concluded that that would not be enough to make sure that the rule wasn't substantially the same as 2016.
Some of the commenters, and ultimately the Commission rejected this approach, said, well, you can just change the economic analysis.
You can have essentially the basic contours of the disclosure regime that was required in 2016, but if you change the economic analysis and the rationale, then it's not substantially the same.
And the Commission said that that's not right.
The basic requirements are still the same as the earlier rule.
So the Commission looked at sort of the core parts of the 2016 rule and some of the ancillary aspects of the rule and said, you know, the core parts, we're going to have to change some of that.
And essentially, there were sort of two main parts of the rule.
The SEC kind of changed one of them, kept some other aspects of the rule.
But very helpfully, I think, and it's a good approach for other agencies, actually put a table in the final release that said, here's what the 2016 rule said, and there were, you know, several sections.
Here's the 2020 rule.
Is it the same or different?
And it really was a visual representation of what were the changes.
And when you looked at it together and you sort of added it up, the conclusion of the SEC was that it was substantially the same.
That was not a unanimous vote by the SEC, though.
But ultimately, it was successful.
As the chairman said at the time, the goal was to create a final rule for the final time, to create a rule that would not be subject to litigation again and that would not be disapproved.
And ultimately, the rule met the mandate and was not disapproved and was not vacated by the courts.
Thank you.
Going back to one of the earlier things that was said about what the range of targets here is, I mean, you've got the classic version, which is rules get sent to the House and GAO.
But obviously, agencies engage in all sorts of regulatory actions that aren't final rules.
And so there's, I believe, other methods to get at those where members can send stuff to GAO and get a ruling on that.
Steve, could you talk a little bit about that?
And Amanda, anyone else chime in?
Are people limited to final rules that are sent here, or is there a much broader realm of possible targets that they could be looking at?
The short answer is there is a much broader set of potential targets.
And I'm assuming I might be the only non-lawyer on the panel.
The rest of you can conclude me if I play a little bit fast and loose.
You know, correct me if I'm a little fast and loose with how I describe things, but I believe the GAO gets to make the determination of what counts as a rule under the Congressional Review Act.
And if I'm remembering my facts correctly, fact check me on this one.
I believe there has been one guidance document that has been disapproved under the CRA.
That's one of the 20 disapprovals that has occurred.
So certainly the CRA is not limited to those canonical final rules that have been published in the Federal Register after notice and comment, et cetera, et cetera.
So other agency actions, including guidances, would, you know, by past practice would be potentially eligible for disapproval.
Of course, that would require, I believe, a ruling from GAO on a case-by-case basis.
And I think when the GAO issues that ruling, that's when the disapproval window opens.
And so normally, when does the disapproval window open?
When the rule is submitted.
But in the case of a guidance document, it would be in that other situation when the GAO's report is read into the congressional record.
I think I have that all or mostly correct.
It's a very textualist interpretation of the CRA.
I would confirm that.
And when I read the statute and it said the text of a joint resolution has the agency and the date and name of the rule,
in the case of one that is challenged and GAO submits an opinion that something should have been submitted as a regulation, that GAO determination becomes part of the text.
And then as Steve said rather correctly, that date starts the clock in the Senate.
Can I raise one more issue on this real quick, and that is this could get open a can of worms, but I believe there are potentially a very large number of agency actions that were never submitted under the terms of the CRA.
And so normally we think about the look back is very, very limited chronologically.
But if the rule was never submitted, that potentially, you know, Tom, you mentioned how many thousands and thousands of rules have been issued since the CRA was enacted in the mid-90s.
If they haven't been submitted to Congress and GAO, theoretically, at least, the clock hasn't started ticking.
And so the look back could possibly go back decades in the context of thousands of rules.
That's something that there's been a fair amount of discussion of, at least informally, for the last few months or so.
So I'd be curious people's thoughts on that, whether you can sort of do offensive resubmissions of previous administration ones, rules that had not been submitted, submit them now to put them in the crosshairs.
But what you're calling rules are really guidance documents.
I mean, these are not actual rules that you're saying have not been submitted to GAO.
There's also, I think, rules that haven't been submitted.
I think in 2017, there was an effort to clean up some of that.
I feel like some of them were all kind of resubmitted in a big package at one point.
I could be wrong about that.
So Allie, you were here in 2017, if you happen to remember.
I don't recall.
Research point to take home.
But for the guidance documents ones, they would actually have to go through APA notice and comment rulemaking, and then they would have to submit it, right?
Well, I think the argument would be...
Sorry.
I think the argument would be something similar to what happened with the staff accounting bulletin guidance that was issued by the SEC a few years ago.
So this was a staff-level guidance document, not voted on by the Commission, that basically provided guidance to companies that custody crypto assets and how you're supposed to account for that on your balance sheet.
It sounds very dry, but it was very controversial at the time.
And what happened was members asked GAO, isn't this a rule?
It wasn't notice and comment, and it wasn't at the commission level.
The commissioners never voted on it.
It was the Office of Chief Accountant at the SEC.
And GAO said, it's a rule.
It should have been submitted.
And then the GAO letter, I think, was put in the congressional record.
The time period started.
It was disapproved on a bipartisan basis, and Biden vetoed it.
So I think the theory here would be, will the Trump administration go back and look for other things like that that they look at now and say, actually, we believe those are rules because the CRA is not limited to rulemaking.
It's very broad.
That's right.
And just as a practical matter, we're getting into the weeds here, but the parliamentarian's office will often lay out the practical roadmap.
You have a rule or a regulation.
You're looking for the date it was submitted.
That's going to be the text that you will use to start the procedure.
That will be the date that is used to count the fast track.
But if you say, what about this thing that has not been submitted?
We believe it's a reg.
The very next stop should be the GAO.
They're the ones that make that determination, right or wrong, and then the agency and the Congress pivot from that decision.
So I think what would happen in this example is new agencies would submit to GAO as though it was something that had just been adopted by the agency, right?
And then GAO is supposed to issue a report.
I've forgotten the contours of it, about whether certain procedures have been followed.
So I think here it wouldn't, I think what you're asking is it wouldn't be that someone would ask GAO for the opinion.
The agency would just say, oh, we found this guidance document from two years ago.
We forgot to send it in.
Here you go.
And see if, and then submit it to GAO, submit it to the House, submit it to the Senate, and see if that could trigger the time period.
So is there any benefit to the administration doing that versus a member finding that document and just sending it to GAO themselves to get a ruling?
GAO might disagree.
And I think the theory might be you could bypass GAO.
And I haven't really considered that.
But if you ask GAO for an opinion, they might disagree.
And they have.
I mean, as you know, they sometimes don't agree that it's a rule.
Now, tell me if this sounds right or wrong, like strategically.
One recommendation would be focus on the Biden administration rules that are in the current open look back window, because that window is closing in a couple of months.
And after that, the use of the CRA to disapprove those rules, you're done with that.
If this issue comes up, address that after the current look back window opens.
Because the theory would be that the current congressional majorities really can only use the CRA in the next couple of months, and then it goes away as a tool.
But all of these other uses we're talking about, like if you want to try to open a look back window, deal with that after the current look back window closes as a way of continuing to use this tool to target regulations for disapproval.
And one reason for that is we talk on the Senate side about expedited procedures, but still every resolution of disapproval has 10 hours of floor time, and that's a precious commodity that's only going to be used a limited number of times.
And so, you know, there is the possibility of thinking about creative uses of the CRA, I would think, after this look back window closes.
But also for the guidance documents, the administration can also go in and make their own changes to some of those guidance documents without needing Congress's help with that.
There was another hand.
Look back window, right?
And the administration is going to come in and do a lot of deregulatory efforts, take a lot of these really bad rules that are outside of the look back window off the books.
Is there any talk, is this like possible?
I know we're still waiting on the Sixth Circuit to define substantially similar.
Why not reissue a substantially similar, weaker rule, and then you can CRA that, and it kills both the rule that just got substantially similar and like forecloses this vein of regulatory space forever, and then you don't have to deal with this again.
So is that something that's been tried before?
Or is that like possible?
I don't think it's been tried before, but it's an interesting idea.
I think it all sort of depends on what the proclusion, how strong the preclusion actually is, which is something that we really just don't know yet.
And I mean, an interesting aspect of the CRA is that all these examples of it being used in the 118th Congress and all that, Republicans use it, Democrats tend not to.
And the explanation I've gotten from Democrats for why is that they don't want to preclude rules.
They're a little afraid of this brooding omnipresence of preclusion that's out there.
So that could be a good idea if we know more about how strong preclusion actually is.
This gets to another issue that I guess we didn't really talk about here, but I'd be curious, Amanda, Kim, your thoughts on it.
The availability for judicial review on CRA is very, very limited.
The law itself purports to say it's not subject to judicial review.
Does that include preclusion?
I guess we're going to find out relatively soon.
Before the big gut glut of 2017 CRAs that were successful, courts really tried hard to avoid dealing with this.
There was a Kavanaugh opinion that was basically very maximalist on lack of judicial review.
But does that complicate any of this as a practical matter?
It will be something the Sixth Circuit has to address, right?
I mean, whether they decide to go forward with it, I think it remains to be seen.
But I will say another, I love the creative ideas for how to use the CRA.
The one other issue is that in Congress, the one constant is that Senate floor time is so limited.
So even though you have this 10-hour debate window and you can even vote to abridge that, You only saw 16 CRAs go through under Trump 1, and that's because, in part, I mean, there's just this limited time on the floor, you've got to process all the nominations.
So, do choose your CRAs wisely and make sure that you prioritize them.
There was a good example of this.
There was a methane rule.
It's interesting that there's another methane rule coming back, but in 2017, there was a methane rule that they decided to proceed with the CRA resolution on it, and it was controversial and it was a really tough vote for a number of more moderate Republicans, and it wound up failing.
CRA resolutions should be layups when you control both chambers and the presidency.
But I feel like this should not be something where, I mean, I feel like the senators were lobbied really hard on this for three or four months.
It's made it a really tough vote, and CRAs generally shouldn't have to be very tough votes.
You might disagree with me on that, but I mean, they frequently wind up being tough votes, but that's why you have to move on them pretty quickly.
And yeah, it's leadership's not going to want to put up something that's going to fail.
And as you say, you're absolutely right, floor time is precious.
And so, that's why if you're interested in any of these, you got to confer with leadership and the committee of jurisdiction because they're going to be in the position of just sort of you know being the cop in the middle of the road, making sure that everyone's able to get through.
So, one of the things that has occurred over my career has been the front-loading of procedural issues.
One example is reconciliation in February of 2024 at the Republican retreat.
They devoted a whole panel to reconciliation in order to hit the ground running.
Similarly, being able to identify rules that may or may not be in the look back window that should be targeted.
My organization, U.S. Chamber of Commerce, has identified three.
As Steve pointed out, there are thousands out there, but we've done a lot of that front-loaded work to identify these regulations that most affect the business community.
I might just make one quick point about resource allocation because I think Amanda makes a great point about floor time is precious, but from the agency's perspective, too, how much time do you want to devote to this in a new administration?
So, the idea of submitting a bunch of the old maybe guidance documents or policy statements that weren't submitted before, you're going to spend a lot of time sort of arguing and fighting about that, whereas you could just rescind them depending on what they are, like fairly easily.
Or, you know, redrafting new rules with the goal of getting a rule disapproved, it just takes an enormous amount of agency resources as well.
And so, I think you know, but both sides have to really think about the priorities and the resource allocation there.
I would just add on resource allocation, the simplicity of the joint resolution of disapproval.
It's not amended, the Texas set.
That makes it very attractive to those committees that are just getting on their feet, want to tackle much more ambitious things, but have to deal with an amendment process with other committees.
This is very straightforward and therefore very attractive in a new Congress.
Any other questions?
I have a quick question for Tom and Amanda, for everyone, really.
When we talk about August 16th, this is something that just bedeviled me when I was at an agency.
Do we mean the date it was delivered to the House parliamentarian, the Federal Register date, the date the parliamentarian noted the delivery as an executive communication?
What is August 16th?
Because the, you know, agencies can issue a rule and it can take any, it can take sometimes weeks before it gets into the Federal Register.
Does that matter?
It does not.
Traditional position of both parliamentarians' office has been the later of those dates, therefore giving Congress the most time to react to an agency action.
So all of those steps that you indicated, issuance, delivery, stamp, et cetera, it's going to be the latest of those dates because sometimes the delivery and demarcation in the congressional record will be different for the House and the Senate.
One thing I'll mention is there's been a lot of conversation about consulting with leadership and the things to do when contemplating rules under the CRA.
And what was interesting to me when I looked back at the 16 rules that were disapproved under the first Trump administration is a very small group of those were economically significant.
I was looking for some larger, deeper message about priorities and maybe unfairly, I'm not sure, but my own reading was it seemed to be a collection of rules that various members for one reason or another wanted to target for disapproval.
And that struck me at the time as potentially missing a larger sort of coordination effort that could be more consistent in targeting rules agency-wise or in terms of their impact on the economy or otherwise.
And so this talk of, I think, coordination and leadership, that strikes me just as good practice this time around.
Yeah, I mean, in 2017, it was very, it was coordinated by leadership, but it was in the end member-driven.
Because to get one of these over the finish line, you need a member who cares about it, who's willing to do the work necessary to work with the cloakroom to get the 30 signatures, to get it out.
We did the FCC privacy one, which was highly controversial.
My boss had to spend a lot of time my directing him to members that he had to talk to about it.
And we didn't get cleared for it until McConnell was satisfied that we had done enough of that.
So I think it's a lot of leadership wants to make sure that its members are getting what they need, but it also wants to, as Amanda said, you want it to win.
And so you got to make sure that it's not sort of half-baked CRA proposals that the people who are championing these things are really putting in the work.
And so that's why I take your point that, yeah, having a more of a strategic posture to it of trying to get at areas of the economy that are being adversely affected or whatever makes sense at the same time, especially Senate leadership, is, in spite of criticism to the contrary, kind of democratic in that members are powerful and they need to be appeased.
A question for you, Steve, about the messaging side.
I think that's an important point that you made at the outset, that yes, there's live-fire CRAs that take out targets, but then there's also the messaging component.
We did tons of these during Biden, and we knew that he'd veto them, even if they passed.
But the thing that we found towards the end was the fact that he was going to veto them made them free votes for a lot of Democrats.
And so in 2024, you started to have guys like Senator Brown, Senator Tester voting for these CRAs and putting them in campaign ads.
And then there was a sudden sort of drop-off in how many of these wound up getting to the floor.
Do you see this?
The kind of thing that could wind up happening in the next administration?
I think it would probably depend politically on how comfortable Republicans are voting against the president and a priority of his, but it's kind of a double-edged sword, right?
You can bring the message to the forefront and potentially give Republicans a tough vote if the issue's unpopular, but you can also give them a get-well vote if they're up for reelection.
I mean, it's interesting the Republicans, excuse me, the Democrats who you mention going along with some of these resolutions of disapproval.
And you would expect in the Trump administration, the Republicans who might be interested in going along with these symbolic messaging resolutions of disapproval that will surely come after the look back window closes.
I think it will be the more moderate Republicans who will use that as a free vote to demonstrate independence from the administration or from the party.
And so I would certainly expect a similar thing on the other side of the aisle.
So for sure.
And that's one of the interesting things about the CRA is there are all of these uses that I don't know were contemplated in the legislative history.
And there's so much interesting creative behavior that I think has coalesced around both the disapproval side, but also the messaging side of the act.
And so I think we're only beginning to understand how far and what directions the CRA might be pushed and pulled.
So one of the things that was mentioned earlier was that historically the CRA has been the province of Republicans.
And certainly all but three of the 20 resolutions of disapproval that have become law were signed by Republican presidents.
And if you look at the number of introductions over the history of the CRA, two-thirds, three-quarters of them, something like that, have been introduced by Republicans.
But I think that's slowly changing.
I think Democrats maybe have been a little bit slow to embrace the CRA.
And I think there are certainly elements in the Democratic Party that do not want to embrace the Congressional Review Act and would like to see it abolished, certainly on the progressive wing of the Democratic Party.
But I do think there's more and more of an appetite in other wings of the Democratic Party to be involved in at least the symbolic free vote aspect that arises at certain points in the electoral calendar.
So I would certainly expect to see, once this current look back window closes, to see, quote, record-breaking Democratic introductions.
But I do think in the end, that distinction between Republicans and Democrats historically, I do think this conversation is right in that it's the substantially similar provision that has been particularly frightening from the Democratic point of view.
Well, thanks everyone for being here.
I think we're coming up on our hour.
Thanks everyone on the panel for this very engaging discussion.
Hopefully you all found it useful and hopefully you can all hit the ground running over the next couple months to make some hay out of the Congressional Review Act.
So thank you.
Sunday night on C-SPAN's Q&A, ex-convict, award-winning poet, and Yale Law School graduate Reginald Dwayne Betts is our guest.
He wrote the afterword for a new commemorative edition of Dr. King's Letter from Birmingham Jail and talks about the book and the work done by Freedom Reads, an organization he founded that builds libraries in prisons.
reginald dwayne betts ▲ ● ▼
You know, the judge might have been under no illusion that sending me to prison will help, but he did say I could get something out of it if I tried.
And I think that this is a testament, not just that I got something out of it, but that I came home to a world where it might feel overwhelming.
It might feel like it is absolutely hard to make a way when you have hurt somebody in the past.
But I also came to a world that has radically changed and shifted and created more and more opportunities for people to reflect on the ways in which they've changed and to be welcomed back into what I like to think of as King Said, the beloved community.
unidentified
Reginald Duane Betts, Sunday night at 8 p.m. Eastern on C-SPAN's Q ⁇ A. You can listen to Q&A and all of our podcasts on our free C-SPAN Now app.
Next week on the C-SPAN Networks, the House and Senate are in session.
The House will consider legislation establishing new penalties for evading U.S. Border Patrol agents in car chases.
The Senate continues voting on President Trump's cabinet nominees, including Tulsi Gabbard as Director of National Intelligence and Robert F. Kennedy Jr. as Health and Human Services Secretary.
The chair of the Federal Reserve, Jerome Powell, will give the semi-annual monetary policy report before two committees, first on Tuesday before the Senate Banking Committee, and then on Wednesday before the House Financial Services Committee.
Also, C-SPAN continues our comprehensive coverage of confirmation hearings for President-elect Trump's cabinet nominees.
The Senate Health, Education, Labor, and Pensions Committee will hold hearings for two cabinet nominees.
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