Regulatory policy going forward may be in jeopardy because of the Congressional Review Act (CRA), which can be leveraged in the right political environment to unwind major regulatory actions.
There are several laws that get little visibility in the public spotlight yet have a tremendous impact on policymaking and the regulatory environment. The Congressional Review Act (CRA) is one of those laws that can be leveraged in the right political environment to unwind major regulatory actions. Depending on the outcome of the 2020 election, regulatory policy going forward may be in jeopardy because of this little-known law and this month will likely mark the start of a critical review period for those hoping to use the CRA for their own regulatory advantage.
Republicans won new majorities in the House and Senate in 1994 on a platform to reform the federal government, known as the “Contract with America.” The CRA was passed as part of the Contract with America Advancement Act of 1996, which implemented much of the agenda outlined on the campaign trail.
The intent of the CRA was to provide some balance between Congress and the executive branch as federal agencies issued new regulations. The law allows for Congress to introduce a joint resolution of disapproval on new federal regulations within 60 legislative days of the regulation being finalized. Of course, this is politically difficult because it requires majorities in both the House and Senate to pass the resolution and the President to sign it.
However, if the political landscape aligns, this can be a very powerful tool. The CRA has been effectively used to reverse seventeen rules since the law was passed – one during the 107th Congress and sixteen during the 115th Congress when the White House, House, and Senate were led by Republicans and they were able to reverse regulations issues in the last 60 days of the Obama Administration.
Democrats took note of how Republicans leveraged the CRA in the last Congress. If Democrats win the White House and a majority in the Senate in the upcoming election, they will quickly turn to the CRA as a vehicle to upend some of President Trump’s regulatory agenda.
At some point this month (potentially as early as May 20th) Congress will likely only have 60 legislative days remaining in the 116th Congress, which officially triggers CRA opportunities for next year. Any regulation issued during the last 60 legislative days of this session would be eligible for a CRA resolution of disapproval next year. As federal agencies work to finalize new regulations, Democrats will look to the CRA as their last hope to reverse them, but only if they have big wins in the Senate and the White House in November.
It is worth watching two important factors when considering if the CRA will be useful next year: one, the regulations issues over the next 60 legislative days and, two, the outcome of the 2020 election.