Congressional Review Act Tsunami Leaves Lasting Damage
By Public Citizen Regulatory Policy Team
Most everyday Americans have never heard of the Congressional Review Act (CRA). But you can be sure every well-connected corporate lobbyist in Washington, DC knows what it is and exactly how it works. That’s because the point of the law is to give Congress a special shortcut to repeal regulations that protect the public, all to benefit specific corporations and industries that are lobbying against the rules. Unfortunately, the Republican majority kicked off this Congress by spending most of their time aggressively using the CRA to roll back regulatory protections and boost corporate profits instead of passing legislation that helps lower prices or otherwise improve the lives of everyday Americans.
Understanding how the CRA works reveals why it is such an effective tool for Congress to reward corporate special interests by rolling back regulations they oppose. The CRA allows Congress, with the president’s signature, to overturn regulations issued in the last months of a previous administration by securing a simple majority vote in both chambers, meaning no possibility of a Senate filibuster, and with limited debate. Basically, the CRA is one of the few ways Congress can pass laws without having to deal with the filibuster, and so it is no surprise that corporate lobbyists seek to use it as often as possible to strip everyday Americans of regulations that protect them.
Unsurprisingly, the use of the CRA caused significant damage to the safeguards that protect the American public. In total, Republicans used the CRA to kill 16 regulations that President Biden put in place near the end of his administration. Another three have passed the Senate and can still be voted on in the House of Representatives due to the convoluted CRA rules. In every case, consumers, workers, or the environment will bear the harm of the deregulatory rollback.
For example, one of the first regulations that Republicans targeted and rolled back using the CRA required fossil fuel companies that emit methane, one of the worst pollutants when it comes to accelerating climate change, to pay for their methane pollution. According to the director of Public Citizen’s Energy Program, “The fee was intended to be a key part of enforcing standards on an industry that has repeatedly cut corners in its endless drive to extract more fossil fuels.” Predictably, Republicans voted to boost corporate polluters’ profits by getting rid of the methane pollution fee, allowing methane to continue to pollute the air and cause preventable illnesses.
In another example, Republicans used the CRA to gut a critical safeguard issued by the Consumer Financial Protection Bureau (CFPB) to protect the public from unfair overdraft fees that pad the profits of big banks. The CFPB estimated that the new rule would put $5 billion dollars directly back in the pockets of consumers. Republicans instead sided with big banks by repealing the CFPB’s overdraft fee regulation and boosting the profits of big banks at the expense of consumers who struggle to make ends meet when hit by unexpected overdraft fees.
Over and over again, Republicans used the CRA to give handouts to corporations and specific industries, whether it be rolling back climate-friendly energy efficiency standards that save consumers money, or requirements that prevent crypto traders from skirting tax laws, or preventing Big Tech companies from taking advantage of consumers that use their payment apps. The full list of regulatory safeguards that were repealed using the CRA can be found here.
Finally, before the clock ran out on their CRA rampage, Republicans did something unprecedented and blatantly unlawful: they used the CRA to kill environmental protections that are obviously not subject to the CRA under the plain terms of the law. The environmental protections were three “California waivers,” which refer to the authority the Environmental Protection Agency (EPA) has under the Clean Air Act to allow California to set higher anti-pollution standards for cars than the rest of the country. Congress included these waivers in the Clean Air Act because of how bad pollution has historically been in California, particularly in places like Los Angeles.
For example, California has taken the lead in fighting climate change by requiring all new vehicles sold in the state to be 100% emission free by 2035. Predictably, corporate polluters and the auto industry opposed California’s zero-emission policy and lobbied aggressively to overturn the state’s ability to put in place that requirement. They knew the easiest path would be to use the CRA on the waiver EPA issued allowing California to set stronger anti-pollution standards.
The problem is the CRA only applies to regulations and the California waivers are simply not regulations according to the Government Accountability Office (GAO), which is the definitive authority on what the CRA does, and does not, apply to. Indeed, GAO has been making CRA determinations for almost 30 years and most of these determinations were requested by Republicans. The Senate parliamentarian, who is the final word on Senate rules, also analyzed the California waivers and determined the Senate can’t use the CRA to get rid of them.
That should have been the end of the story. But Senate Republicans wanted so badly to do the bidding of corporate polluters and the auto industry that they decided to break the rules by overruling the Senate parliamentarian for the first time ever and force a CRA vote on the California waivers, which passed. In short, Congress illegally used the CRA on the California waivers, all in willful violation of the parliamentarian in order to get around the filibuster, and passed what can best be described as an invalid and illegitimate law.
The only good news is that the window for Republicans to use the CRA this Congress to roll back regulations that protect the public closed on May 8, with the exception of the three resolutions still pending consideration in the House.
While use of the CRA may be behind us for now, Republicans this Congress once again proved why corporate lobbyists love the CRA so much since Big Oil, Big Auto, Big Banks, and more will all be raking in additional profits as a result of these regulatory rollbacks. However, the American public will be paying the price from the CRA damage for years to come through worsening extreme weather events, unaffordable fees, higher energy bills, and a host of other harms.
Though there is nothing that can be done to put those rules back on the books now, it’s never too late to tell your senators and your representative that you support strong safeguards and they should too. This is especially important so that Congress doesn’t further destroy the ability of government agencies to protect the American public.