December 16, 2016
One of outgoing Senate Majority Leader Harry Reid’s greatest legislative achievements will come back to haunt Democrats early next year.
President-elect Trump has promised to repeal two federal regulations for every new one issued, and the Congressional Review Act, which Reid co-sponsored in 1996, will give him a running start.
The law gives Congress the power to rescind any unwelcome late, so-called “midnight” regulations from an outgoing president through a simple majority vote in both chambers of Congress.
Since its passage as part of House Speaker Newt Gingrich’s Contract with America in 1996, it has only been successfully used once, but Republicans are promising to leverage its full power in January to kill rules the Obama administration has issued in its last months in office.
In his 77-minute farewell address on the Senate floor last week, Reid included the Congressional Review Act as one of his top accomplishments in the Senate, along with passage of Obamacare, the 2009 stimulus bill, a taxpayer bill of rights and several other measures.
Reid openly acknowledged that his work on the seldom-used law has perplexed Democrats because Republicans are known for targeting what they consider overly burdensome environmental and labor regulations and Democrats generally want to increase the government protections.
Republicans, with the help of the Congressional Research Service, have compiled a list of roughly 50 regulations they could go after early next year. Likely victims include a rule requiring federal contractors to allow their employees to take sick leave and another requiring the safe storage of chemicals and gas after last year’s deadly fire at a chemical plant in Texas.
The NFIB and Republicans are waiting for Congressional parliamentarians to determine if the timing provided in the act also allows them to rescind overtime rules finalized May 23. The new regulations expand the time and a half payment requirement to some 4.2 workers, what conservatives say could hurt small businesses, forcing some of them out of business.
Most Democrats understood the reasons behind Reid’s decision in 2013 to go “nuclear” and change Senate rules to end the minority party’s ability to filibuster presidential nominations for all but the Supreme Court. Democrats were tired of Republicans blocking Obama’s appointments to the lower courts and were willing to risk the turn-about that comes now that they have no power to block most of Trump’s nominations.
But Reid’s role in handing Republicans’ a cudgel to kill outgoing Democratic president’s rules has had his Democrat colleagues scratching their heads for years, Reid admits.
“I know some of my Democrat colleagues say, ‘Why did you do that?'” Reid said during his final speech on the Senate floor. “Here’s what I did. I worked with Republican Sen. Don Nickles from Oklahoma … Don and I talked about this. We knew that the administrations would change and it would affect every president, Democrat and Republican.”
“It was called the Congressional Review Act,” he continued. “What that said is the president promulgates a regulation, Congress has a chance to look it over to see if it’s too burdensome, too costly, too unfair … That was legislation that I did, and it was great when we had Republican presidents. Not so great when we had Democratic presidents. But it was fair.”
James Goodwin, a senior policy analyst at the Center for Progressive Reform, a left-leaning group that advocates for greater environmental and labor protections, said the only explanation he can think of for Reid’s work on the act is to prevent an even more expansive bill Republicans had planned at the time.
“The [law] is asymmetrical, politically speaking,” he said. “It offers a lot more to Republicans than to Democrats.”
Reid also failed to mention is that Democrats have never used the law at all. The only opportunity they had was in early 2009 when Democrats controlled both the House and Senate during the early days of President Obama’s tenure.
At the time, they could have tried to revoke regulations from the George W. Bush administration but decided not to because the act includes a provision that prevents a federal agency from writing a similar regulation in any form once Congress rescinds the existing one. Democrats wanted to strengthen, not roll back Bush-era regulations, so they opted forego use of the Congressional Review Act in early 2009.
The way the law works ensures its use only in the rare circumstance that one party controls both houses of Congress and has just won the White House from the other party.
It then allows lawmakers who oppose regulations to write separate resolutions to overturn each one. These resolutions operate under easier rules than normal bills. They need only a simple majority to pass both the House and Senate and so cannot be filibustered, which requires 60 Senate votes to overcome.
Congress has only successfully used the law once, in 2001, to overturn the Clinton administration’s Occupational Health and Safety Administration rule on ergonomics. During the Obama years, Republicans have tried to use the review act to make political points targeting labor, environmental and financial regulations, but Obama vetoed those efforts, as expected.
With Republicans controlling Congress and the White House early next year, they are salivating at the chance to overturn dozens of Obama administration rules.
“This will be an unprecedented era for the Congressional Review Act,” predicted Steve Keen, a lobbyist for the National Federation of Independent Businesses, which represents small business interests in Washington. “Republicans are looking at the worst examples of executive overreach and targeting them.”
The benefit of time, Keen said, has given Congress more confidence about the law’s powers, and Republicans have the rare moment of controlling the legislative and executive branches.
Goodwin argues that Republicans’ plans will roll back years of taxpayer-funded work by agencies that have developed technical expertise in the areas impacted.
“That raises serious concerns for me … these rules deliver significant benefits for folks,” he said.
Still, Republicans won’t have carte blanche to go after all late Obama regulations that agencies have recently issued, he pointed out.
The law, he said, only allows for consideration of one regulation at a time, and House and Senate rules will require hours of equal debate time for opponents and proponents of the regulations.
“It does provide a semi-easy tool to get rid of a certain class of regulations,” he said.
But even under the law’s expedited House and Senate procedures, the law only allows resolutions to come up at most for the first 60 days of the new Congress and each chamber must target every regulation with a separate resolution.
“That eats up floor time, and floor time is going to be of a premium next congress with Republicans having to confirm Trump’s nominations and already planning two budget resolutions,” Goodwin said.
Republicans, he argued, are going to have to prioritize which regulations they find most egregious and predicts they will end up only rescinding three to five with a maximum of a dozen total.