Fight escalates over Review Act

After a precedent-setting vote in the Senate, conservative and liberal groups are escalating their fight over the Congressional Review Act.

The Senate last month passed a joint resolution of disapproval to overturn the Consumer Financial Protection Bureau’s 2013 auto lending guidance. It marked the first time lawmakers had used the CRA to target nonbinding guidance (E&E Daily).

In response, the public interest group Center for Progressive Reform is leading a campaign to convince lawmakers to repeal the CRA entirely.

Meanwhile, the Pacific Legal Foundation, which promotes property rights and limited government, is pursuing two lawsuits aimed at encouraging increased compliance with the CRA.

Until recently, the law was nonpartisan, said Todd Gaziano, a top official at Pacific Legal who was the chief legislative counsel to the CRA’s sponsor, former Indiana Republican Rep. David McIntosh. President Clinton signed the law in 1996. One top co-sponsor was former Nevada Democratic Sen. Harry Reid.

Basically, the statute requires federal agencies to submit final rules to both Congress and the Government Accountability Office before they can take effect.

Lawmakers then have 60 legislative days to review the rule. During that time, members can schedule a simple majority, up-or-down vote on rules they want to overturn using fast-track procedures.

Until 2017, the CRA had only been used successfully once to toss out a Labor Department rule in 2001. But with a Republican-controlled White House and Congress, lawmakers wasted no time in submitting 14 resolutions of disapproval that were then signed by President Trump (E&E Daily, May 12).

Conservatives in and out of Capitol Hill are also pushing to use the CRA for older actions — whether guidance or other similar documents — that were not submitted to the GAO and Congress according to the statute.

The Leadership Conference on Civil and Human Rights sent a letter opposing lawmakers’ moving against a long-standing Consumer Financial Protection Bureau guidance on auto lending.

“S.J. Res. 57 represents an unprecedented and unwise use of the CRA procedure,” the group wrote. “The law was intended to allow Congress to block the implementation of new agency rules before their impact is felt — not guidances that have been in place for years.”

Once a rule is eliminated under the CRA, agencies are prohibited from issuing a “substantially similar” one. The definition of “substantially similar” has yet to be tested in the courts.

Susan Dudley, who served as administrator of the Office of Information and Regulatory Affairs under President George W. Bush, called it interesting that the CRA has become mired in partisan divides.

“I would think that Democratic as well as Republican members would find the CRA valuable to hold agencies accountable,” said Dudley, who now serves as head of the George Washington University Regulatory Studies Center. “I think even when you’re not in the majority, it can be a useful tool.”

Read more of this E&E News article by Maxine Joselow by clicking here.

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