What is the Congressional Review Act?

Bridget Dooling joined AEI's Understanding Congress podcast with Kevin Kosar

November 01, 2021

Link to Podcast (aei.org)


 

Kevin Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute and hosts the Understanding Congress podcast. In this episode, Bridget Dooling joined Kevin to discuss the Congressional Review Act.

For more on the Congressional Review Act: https://regulatorystudies.columbian.gwu.edu/congressional-review-act.

 


Audio Transcript: 

The topic of this episode is, “What is the Congressional Review Act?”

My guest is Professor Bridget C. E. Dooling of George Washington University’s Regulatory Studies Center. She has a deep background in regulation. Previously, Bridget worked for the Office of Information and Regulatory Affairs in the Office of Management and Budget. She also has clerked for an administrative law judge and worked in the U.S. Department of Justice.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

It is to Professor Dooling we turn to learn about the Congressional Review Act, a tool for Congress to abolish regulations. Welcome to the show.

Bridget Dooling:

Thank you so much. I’m glad to be here.

Kevin Kosar:

Before we get into the Congressional Review Act, or CRA, let’s start with something basic. What are regulations, and why do they matter?

Bridget Dooling:

Regs are great, and studying them is even better. Regulations are everywhere. They shape our world, but not necessarily in obvious ways. Knowing about regulations is like having a decoder ring for why certain things are the way they are. Like, why do you need prescriptions for some things, but you can help yourself to whatever supplements like vitamins that you want? It’s because there’s a regulatory line there. You can’t see it when you’re in the drugstore, but it absolutely affects the way you live.

Kevin Kosar:

Yeah. Regulations really, to a degree, I guess they’re specifications of laws, particular applications. Is that a fair characterization?

Bridget Dooling:

Yep.

Kevin Kosar:

Now, if listeners want to see these things, these regulations, where should they go? Where can they find a list or collection of regulations?

Bridget Dooling:

Yeah, there’s a few ways. One is that you can look at legislation, because that’s where Congress tells the agencies what they’re allowed or required to do. And then you can also look at what the agencies themselves produce. So for rules that are in the process of being made, there’s a website called regulations.gov. That’s a great place to start, so if you hear that a rulemaking is coming down the pike, that’s a great place to go check its status and see if it’s open for public comment, for example. So that’s regulations.gov. And for rules that are already on the books, you’d want to look at something called the Code of Federal Regulations, which pulls all that regulatory text into one place so you can read it all in one spot.

Kevin Kosar:

Excellent. Now our listeners know. So let’s turn to the Congressional Review Act. Congress enacted it in 1996. Democrats and Republicans alike voted for it. President Bill Clinton signed it into law. In most basic terms, what is the CRA?

Bridget Dooling:

The Congressional Review Act allows Congress to disapprove federal agency rules using fast track procedures, during a special window of time following the rule’s issuance. And perhaps the most important of these special fast-track procedures is that resolutions of disapproval can’t be filibustered. And if it’s enacted, this disapproval resolution effectively wipes the relevant rule from the books and the regulations revert back to whatever existed previously. Now, if an agency was to set about going back and undoing its own rule, that could take years. Congress can move much faster than a regulatory agency can by using the CRA to basically short circuit that rule.

To be enacted, however, both chambers of Congress must pass the resolution and the president needs to sign it. And because a president’s unlikely, very unlikely to sign a resolution disapproving a rule that was issued during his or her own administration, or that of a president from the same party, the Congressional Review Act is especially salient following a presidential election in which the incumbent or same party nominee loses. If that happens, and if both chambers in Congress are aligned with the incoming president, the potential for enacted resolutions of disapproval increases dramatically.

Kevin Kosar:

So let’s pause for a moment. What we’re talking about is a legislature passing a law to wipe out a regulation. The listener might say, Okay, well, why do we need the Congressional Review Act to do that? Couldn’t have Congress just done this without creating an act to create an act?

Bridget Dooling:

Yeah, you’re exactly right. Congress could always pass regular legislation to overturn an agency’s rule, or another way they could handle it is by placing riders on an agency’s appropriation in a way that could prohibit an agency from working on a particular rule. In either case though, that would require a filibuster-proof margin. And that’s why the CRA offers an enticing procedural option for lawmakers interested in undoing an agency’s rule.

And you mentioned earlier that the CRA was enacted in 1996. I really think it’s helpful to think about when the CRA was enacted to understand its context, which was part of the Contract with America Act. Around that time, legislators were looking to reclaim some power from the executive branch, and the CRA was just one of the ways that it did so. This was also in the aftermath of INS v. Chadha, which was the decision that struck down the use of legislative vetoes on logic that this violated presidential presentment requirements. So in the CRA you see Congress coming up with a method that allows them to check the executive branch, but only if the president agrees or if they have the votes to overcome a veto.

Kevin Kosar:

Yes, yes, that’s right. In your initial answer, you mentioned that fast track provision, and that’s so key. Especially to anybody who’s watching Congress in recent years, the struggles to get legislation enacted, the threats of filibusters and holds and other such things — the CRA, therefore, is a quicker way to get done what otherwise might be done through a standard statute. Now I want to drill down for a sec. You referenced an interesting dynamic about when the CRA tends to get used. If you have a new president coming in from a different party, and perhaps if Congress is also different, is that the sort of time when we see the CRA get used?

Bridget Dooling:

Yeah. So I mentioned before that the CRA is most salient following a presidential election in which the incumbent or same party nominee loses, and when the new president is in alignment with both chambers of Congress. This has happened a few times since the CRA was enacted. One of the times was at the start of the George W. Bush Administration. And at that time, Congress used the Congressional Review Act to disapprove a workplace safety role on ergonomics that had been issued late in the Clinton Administration.

The next real opportunity to disapprove regs with the stars aligning in the way we described was at the start of the Obama Administration. The Congress didn’t turn to the CRA then. This helped create some speculation that the CRA was a tool that Democrats just weren’t interested in using — perhaps because once a rule is disapproved an agency can’t go back and do it again until Congress lets them. In the Trump Administration, Congress really leaned into the CRA. They disapproved 16 rules, which was a historic number given the way that the CRA had been used in the past. And then at the start of the Biden Administration, the stars were aligned to use the CRA, but the question was, would Democrats use it? And ultimately they did. They disapproved three rules under the Congressional Review Act, somewhat complicating the earlier narrative that the CRA just wasn’t a tool that Democrats like to take advantage of.

Kevin Kosar:

The CRA was little used for so many years. And then some of us told Congress some years back, “Psst, hey, the Congressional Review Act exists, you should use it.” You’ve got a long scope look at the history of this act. On the whole, does it strike you as particularly effective?

Bridget Dooling:

So that’s probably going to depend on who you ask, right? Because it depends on what you’re trying to achieve with something like the Congressional Review Act. To the extent that its goals were to pull some authority back to Congress, to oversee the executive in a more assertive way, the CRA clearly has allowed legislators to do that. And they have taken advantage of those tools now in three administrations to disapprove rules. I think we’ve tended to only think about the CRA — to the extent that anybody does, but if you’re listening to this podcast, you might actually be a person who thinks about the CRA — you’ve tended to think about the CRA as being used only when it leads to the disapproval of a rule.

Now I’m working on some research with a couple of colleagues at GW, Steve Balla and Daniel Perez, that looks much more closely at the introduction of resolutions of disapproval, which is in the hundreds of instances, not in the low double digits, which is what you’ve got when you sum up the total number of disapproval resolutions that have been enacted. So if you look at the full range of times when legislators introduce these resolutions and then how those resolutions fare in the legislative process, it’s another way to understand how legislators use the CRA even when a resolution really doesn’t have a chance of being enacted. So there’s lots to learn about the way that legislators do use the Congressional Review Act, even when those resolutions don’t actually result in disapproval of a rule. And that’s part of what our new research is looking at.

Kevin Kosar:

That’s fascinating. If I could ask and if it doesn’t get too presumptuous before you’ve got all the results in, are legislators able to sway agencies to perhaps rethink a rule by introducing these disapproval resolutions? Is it kind of a dialogic sort of thing, or is it more of legislators just taking a position to please an interest group or folks back home and introducing these? Is there utility there?

Bridget Dooling:

Yeah, I think these are two of the hypotheses that we’re interested in looking at, because you’re right — the introduction of a resolution is a way to signal both to an agency as well as to other legislators, or to key constituencies, that the legislator’s aware of the rule, that they want to take action to address the rule. And so those are, the two ideas that you lay out there are two that we’re looking at in terms of understanding why legislators might reach for the CRA, even when they know that the stars aren’t aligned for the resolution to be enacted. I think also in the bigger picture, given all of the attention on other procedural issues in Congress — close to mind is the filibuster of course — the time just feels right to me to look at how legislators use shortcuts when they have access to them and what that ends up looking like as that plays out. With the CRA you have an interesting example of a situation where legislators are somewhat more free to pursue the resolutions that they want to pursue.

Kevin Kosar:

Great. If I could back up for a sec, just to ask about an important but complicated point that may have slipped right by our listeners’ ears: When it comes to regulations that can be struck down through the Congressional Review Act process, can it be just any regulation, any issue area? And can it be regulations of any possible age? You know, something that was done in the 1970s — can that be struck down through the Congressional Review Act?

Bridget Dooling:

Right. So as a general matter, no, there is a time limit on when Congress can use this tool, but the CRA does apply generally to rules. So there’s no subject matter limitations or anything like that, but there is a timing limitation. Congress needs to, if it’s going to use the CRA to revoke a rule, it needs to do it within a certain time period after that rule has been issued. Now there’s been some shenanigans with that, looking at when the clock actually starts for certain documents where it’s a little tricky to figure out when that time period starts running for Congress. But as a general matter, you can think of the CRA as a tool that’s available to Congress only for a period of months following when a rule is issued by an agency. So as a general matter, they can’t reach back decades to use the CRA to undo something that has been settled law for an extended period of time.

Kevin Kosar:

Got it. All right. Well, continuing with this theme about the CRA as a tool, last time I counted, there were something like 180 executive agencies, nearly all of which can produce regulations. And I think the last time I looked at the code of federal regulations, there was something like 180,000 pages of regulations. When thinking about the number of CRAs that have been passed through Congress and signed to a president, it seems quite minuscule compared to that great corpus. Are there other tools or policies that might help Congress, the first branch of government, better oversee regulation? Because as you mentioned at the very start of this podcast, regulations are important. They are specific applications of the law.

Bridget Dooling:

Yeah, you’re right. You know, if you were thinking about measuring the effectiveness of the CRA as compared to the number of rules that come out and saying, we’re in the double digits on disapproval resolutions that have been enacted, but we’ve got thousands and thousands of rules on the books — I suppose you could say that the CRA hasn’t been effective. However, there’s a possibility that its existence serves a tempering function. The agencies know that it’s there, and so it’s plausible that when they craft their regulations, they’re doing it with an eye towards the fact that Congress could come back and revoke them using the CRA or other procedures. So in that sense, the existence of the oversight pathway could be triggering some responses at the agency level even if you don’t see that in the form of disapproval resolutions being enacted. Basically if it’s doing a good job of keeping the agencies in line, then you hope it wouldn’t get to a disapproval resolution that after all is quite wasteful. I mean, the agencies might have gone through many years of policy development and public engagement, setting expectations for what they’re planning to do. To have Congress come back at the end and upend that with a resolution of disapproval is really a shame in my mind. I mean I hope that there would be ways to work out the policy disagreements, such that it doesn’t often come to that. But in general, and let me just digress a little bit to say that if this is something that interests you and your listeners in terms of potential reforms, the Administrative Conference of the United States has a new project on the Congressional Review Act. Jesse Cross is the consultant and his draft report is available ACUS.gov. So if you’re interested in following what ACUS might ultimately recommend in terms of ways to change the Congressional Review Act, I recommend keeping an eye on that project, not least because Professor Cross has put together a wonderful draft report that goes through all kinds of the exact parliamentary procedure that I wouldn’t be able to get into with you today. I mean, he’s just really done a remarkable job of mapping out how the CRA works in practice.

So that’s a great report, but to your point, Kevin, I mean rulemaking is law intensive and super technical. And the policy areas that agencies take on via rulemaking also are intensive and technical. So it’s really important that members and committees have professional staff that can monitor what the agencies are up to on regulation, or at least have the toolkit to track down issues when constituents bring them to their attention. So one way to stay on top of what’s new in regulation is to sign up for our weekly digest, which gives you a snapshot of the week’s most important regulations and analyses about those regulations. And you can find that free digest if you search Regulatory Studies at George Washington University.

Kevin Kosar:

Excellent, excellent. To help Congress’s capacity, in addition to them being able to draw upon your newsletter, it sounded like you intimated that having dedicated staff either at the personal office or committee office to be able to keep an eye on regulations would be valuable?

Bridget Dooling:

Yeah, I definitely think that’s key. Not least because when constituents come in with concerns, it’s better I think if the staff have a framework to think about those concerns and that they know where to look up regulations, they know how to check in on their status, they know which agency is responsible for which regulations, and maybe even have relationships back with those regulators so that they can get answers to the questions that are coming in.

Kevin Kosar:

Well, Professor Dooling, thank you for enlightening us about the Congressional Review Act today.

Bridget Dooling:

Thank you so much for having me. It’s been very good fun, and I appreciate the chance.

Kevin Kosar:

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Elayne Allen and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. We hope you have a great day.