The Congressional Review Act and a deregulatory agenda for Trump’s second year

A cold front may have killed-off nearly half of D.C.’s famous cherry blossoms, but Washington gridlock has emerged in full bloom. With the defeat of the Republican “repeal and replace” bill in the House, and the Democrats’ united opposition to the president’s agenda, it’s looking increasingly difficult for Congress to get things done.  Fortunately, there exists a stimulatory, free market weapon in the hands of the Congress and the president to stay on the offensive on deregulating and freeing the economy.  

By simple majority vote, the Congressional Review Act (“CRA”) can overturn any regulation that affects a third-party. This is a powerful and underutilized tool. The CRA is not subject to the filibuster and provides the majority with a vast deregulatory agenda with a high chance of success. 

{mosads}Before President Trump took office, the CRA had been successfully used only once, during the early days of the second Bush administration.  Congressional Republicans dusted it off and have already successfully overturned seven Obama-era regulations, with six more awaiting the President’s signature.

This represents removal of regulations costing businesses an estimated $1 billion per year in compliance.  The beauty of the CRA is that such regulations cannot be reimplemented with just a “pen and a phone” by a future administration.  Congress must act to allow a regulation to return once it has been struck.  Further, the terms of the CRA explicitly limit interference by federal courts.  This provides at least some bulwark against a regulation loving judiciary. 

The only limitation is that Congress can only utilize the CRA within 60 legislative days of being notified of the regulation. However, Congress’s time to disapprove a rule runs from the date of when the regulation is published or when the agency sends Congress the requisite report.  Because bureaucrats aren’t known for being punctual, there are countless regulations, guidance documents and rules that have never been submitted to Congress for review, going all the way back to 1996!  

The Pacific Legal Foundation, along with other partners, hosts a website to collect these regulations.  My organization, Cause of Action Institute, has found more than 800 economically significant rules that could be on the table.  The great limiting factor under the CRA is Senate floor time.  Each regulation must be struck down individually and not in bundles.  The CRA allows for a maximum of ten hours of evenly split debate time for each rule, and precludes Senate filibusters. 

Next year is an election year. With little prospect of passing meaningful legislation, and no Supreme Court nominee to confirm, the Senate could be in the unaccustomed position of moving a positive deregulatory agenda forward by majority vote. Instead of gridlock, Congress and the Trump administration could, through coordinated review and agreement, overturn hundreds of wasteful or outdated regulations. These regulations could be systematically eliminated with little chance of revival in the future. The Congress would see its stock rise as it acted to remove billions in compliance costs from the American economy.  Congressmen would have something tangible to show for their time in D.C. and the American economy would get a welcome boost. 

The CRA in the current environment provides an opportunity “for so much winning you’ll get tired of winning,” to coin a phrase. 

John J. Vecchione is President and CEO of Cause of Action Institute, a District of Columbia non-profit government oversight organization.