Democrats’ use of Congressional Review Act puts filibuster debate in new light

Last week, the window closed on the ability of the Democrats in the Senate to use the Congressional Review Act (CRA) to repeal regulations issued late in the Trump administration. The Democrats in the Senate passed three CRA resolutions in the past four months. One was to eliminate a Trump rollback of emission standards for methane. The second resolution would eliminate the Department of Treasury’s “true lender” rule which made it easier for banks to issue loans with higher interest rates. The final resolution was passed two weeks ago when Senate Democrats voted to repeal an Equal Employment Opportunity Commission rule requiring the agency to turn over more information to employers during the process known as “conciliation.” Those bills will likely be passed by the House and signed by President Biden

The Congressional Review Act was passed in 1996 as part of the Contract with America. It requires executive branch agencies to submit regulations to Congress and allows the legislative branch to pass resolutions repealing those regulations. Congress has 60 session days to pass such a resolution which is exempted from the normal rules of debate. Most significantly, such resolutions are not subject to filibusters in the Senate.

In its first 20 years of existence, the Congressional Review Act was used only one time. At the beginning of the Trump administration, Congress used the CRA to repeal 14 regulations issued late in the Obama administration and later repealed two more that went into effect during the Trump administration. The CRA is largely only useful for Congress at the beginning of a presidential administration that differs in party than its predecessor because the president can veto resolutions of disapproval and will do so to protect his own regulatory initiatives.

The three repeals recently passed by the Senate and likely to be passed by the House and signed by President Biden are important and will affect the welfare of large groups of people. But to put these actions in context, the Trump administration issued hundreds of regulations in its waning days. Many of these were of a nature likely to be opposed by a Democratic Congress including regulations to deregulate environmental protections, make it easy to repeal regulations at the Department of Health and Human Services, and numerous others.

With such a target-rich environment, and unencumbered by the filibuster, one would think that the Democratic Senate would have passed a large number of repeals. But they only used the CRA three times. The limited action by Congress to use the CRA shows that simply getting rid of the filibuster will not have the dramatic impacts that advocates hope for and opponents fear.

It is true that there are some aspects peculiar to the CRA that may explain why Democrats were reluctant to use it. The CRA contains a provision that prevents issuance of substantively similar regulations in the future, and some progressives have voiced the fear that this provision would prevent any regulation in the policy area covered by the regulation being overturned. Others, though, have convincingly argued that this is not the case. 

Some progressives have also argued that using the CRA, which has until this year been used in a solely deregulatory manner, gives legitimacy and bipartisan support to a statute they would like to see repealed. However, this is an argument for not using the statute at all. Once it has been used by Democrats, the marginal impact of using it additional times is zero.

So, the question remains: Why only three uses of this potentially powerful tool?

At the end of the day, the most likely explanation is that even with the filibuster removed, legislating in the Senate is not easy. This is particularly true when the Senate is as closely divided as it is currently with 50 Republicans and 50 Democrats. Debate in the Senate is slower than in the House; the Senate has to spend time on confirmations (something not true for the House), and the majority has to hold on to every member in order to win a partisan vote.

Democrats have been debating the removal of the filibuster for all legislation since they assumed control of the Senate in January. Progressives have argued that removing the filibuster would allow the passage of a raft of legislation implementing their priorities. Republicans have voiced fear about the same outcome.

But the experience with the CRA highlights the possibility that both the hopes and fears associated with ending the filibuster may be overstated.

The same factors that limited the passage of CRA resolutions will still be in play for normal legislation in a post-filibuster world. This means that the majority party (for now the Democrats) will still have to carefully prioritize legislative bills and confirmations and will still need to make sure they can get a majority of votes.

Eliminating the filibuster will doubtlessly help the Democrats enact some of their priorities. But as the experience with the CRA shows, the policy impact of doing so is likely to fall far short of expectations on both sides of the aisle.

Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.