COVID-19 & CRA Jeopardy

May 19, 2020

Download this Commentary (Yale Journal on Regulation)

We’ve covered the issue of Congressional Review Act (CRA) disapprovals quite closely here on the blog, so readers might recall that Congress can use the CRA to disapprove federal agency rules using fast-track procedures during a special window of time following the rule’s issuance. What we’ve surely never talked about on the blog is how a pandemic might effect the dynamics of this unusual legislative tool.

The COVID-19 pandemic has resulted in fewer days in D.C. than usual for Congress. One consequence of this decision is that, due to a quirk in how it’s calculated, the CRA window has likely expanded, placing more rules in jeopardy than expected.

The upcoming presidential election has already brought CRA disapproval up from the back burner. Disapproval is generally most feasible immediately following an election where the White House changes parties and the incoming president is politically aligned with both chambers of Congress. (That’s because the resolution of disapproval must get a majority vote in each chamber, and a sitting president would likely veto any disapproval of a rule from his own administration or that of a prior president from his party.)

While forecasting election results is entirely outside of my skill set, analysts (e.g., Politico) think there’s a chance Democrats will retain a House majority, could possibly flip the Senate, and could retake the White House in November 2020. That means there’s a chance the stars will align for CRA disapprovals when the 117th Congress gavels in on January 3, 2021. So the question is, which rules will be in CRA jeopardy at that point?

Daniel R. Pérez, my colleague at the GW Regulatory Studies Center, estimated back in December that the CRA window would likely open on May 20, 2020. But that was before the COVID-19 pandemic threw Congressional schedules into disarray. This matters because the CRA window is not based on regular calendar days but on what we call “working” days. (The CRA has more types of “day” than you can shake a fist at, so just trust me on this one.)

The House calendar has historically determined the count, for reasons I won’t digress into here. Due to the pandemic, the House has had fewer working days (technically: “legislative” days) than usual this spring. Fewer working days translates to a longer CRA window, since it will take more calendar days to rack up 60 working days. (You see what I mean about the days?) The punchline is that the CRA window could have started as early as April 20, 2020, according to Dan Goldbeck at American Action Forum, who ran the numbers in April. It all depends on how Congress handles its calendar; if the fall has more working days than usual, perhaps the window will shrink again. Among the many unknowns: how might last week’s historic rule change to allow proxy voting in the House affect the number of legislative days? We don’t know yet.

Now, whether Democrats will actually be willing to use the CRA to disapprove rules, and for which ones, would make an excellent topic for a future post. So would an assessment of whether Republicans might be willing to cross the aisle to vote for certain disapprovals, should they retain control of the Senate but lose the White House. Until then, just know that rules rolling out now could very well already be in CRA jeopardy and therefore up for grabs in the November election.