WASHINGTON — Twenty years ago, Newt Gingrich and allies pushing the self-styled Contract with America created an obscure but potent legislative weapon to help Republicans combat what they deemed to be out-of-control regulatory overreach in Washington.
But like some kind of mystical, regulation-slaying sword, this tool comes to life only when the political stars align in just the right way, with single-party control on Capitol Hill and the White House, at just the right time.
Donald Trump, when he rolls down Pennsylvania Avenue at his inauguration, will usher in that time.
Republicans are readying an onslaught under what’s known asthe Congressional Review Act to cast aside a raft ofObama administration edicts, including rules designed to make it harder for US corporations to avoid taxes; environmental rules aimed at curbing earth-warming emissions; and sweeping changes to overtime regulations that were set to guarantee extra pay for an estimated 4 million Americans.
Congress put Gingrich’s creation to work just once before, in 2001, to dispatch a workplace safety rule governing ergonomics, issued in the waning months of the Clinton administration.
This time Republicans are thinking much, much bigger.
“We plan to robustly use the Congressional Review Act to reverse the midnight regulations of Barack Obama,” said Wyoming Republican John Barrasso, who is a leader of the Senate effort. “His legacy lost. The American people said ‘No, we don’t want that. We want to change direction.’ ”
While Barrasso and other Republicans say the tool allows them to rescind “last minute” regulations pushed by the Obama administration, the Byzantine way that time is defined in the act means they will most likely be able to take aim at regulations put in place as far back as late May.
Gingrich, now a close Trump adviser, is thrilled his creation will get some use.
“We’ve gone through a period where unelected bureaucrats have arrogated a level of dictatorial power that can ruin lives, close companies, and totally disrupt local governments with no recourse,” Gingrich said in a brief interview. “And to reassert the elected officials is, I think, a good thing.”
The Congressional Review Act in some ways encapsulates the absurdities of Washington. The law provides a fast-track process for lawmakers to overturn agency rules they dislike, rules that often took years for the executive branch agencies to write, review, and approve. Under terms of the act, each chamber passes a “resolution of disapproval,” the president signs it, and — poof! — the regulations exist no more.
But, as a practical matter, for this to actually happen requires a particular set of circumstances: Both chambers of a new Congress need to be controlled by the same party; a newly elected president must be of the same party; and everyone agrees that rules issued by the previous White House occupant, from the opposite party, need to be tossed.
And, under time limits in the act, they have a period of just a few months in the new Congress to get it all done.
“It requires a perfect storm,” said Lisa Gilbert, director of progressive group Public Citizen’s Congress Watch division. Among those circumstances, she said, is the party in power should “be one that believes in deregulation.”
Trump’s surprise election Nov. 8 triggered a flurry of activity all over Washington as congressional aides, lobbyists, and policy wonks scrambled to get up to speed on terms of the Congressional Review Act. People with expertise in its esoteric ways are suddenly in high demand.
The morning after Trump’s victory, Sam Batkins, director of regulatory policy team at the American Action Forum, a conservative think tank, said he got “a million phone calls from Hill people about possible regs” that Congress could use Congressional Review Act to repeal.
Batkins and his team had been writing about the act since last year, when its relevance was still hypothetical. The group recently put out a list of the 10 most expensive Obama regulations it could be used against, including the overtime rule.
Senate Democrats can’t rely on their typical go-to counteroffensive,the filibuster. A key reason this regulatory repeal tool is so potent is that it requires just a simple majority — 51 votes — in the Senate, not the 60-vote super majority most legislation requires.
Another reason: If Congress uses it to successfully overturn a regulation, the agency is barred from ever again issuing rules that closely match what lawmakers rejected —
As Curtis Copeland, one of Washington's foremost experts on the CRA, put it, this is a legislative tool that salts the earth behind it.
That could be just what the current Republican Congress has in mind.
“If they don’t want climate change regulations to be issued in the future, what better way than using the Congressional Review Act,” said Copeland, on the law at the Congress’s think tank, the Congressional Research Service.
The Senate Republican Policy Committee put out a potential hit list called “Reining in Obama Regulatory Overreach.” It includes killing a regulation that prevents states from blocking federal funding for Planned Parenthood. GOP senators also seek to eliminate new rules that prevent US corporations from avoiding federal taxes through “earnings stripping,’’ a key tactic in offshore “inversions’’ that corporations use to relocate to a lower cost country.
The success or failure of Democrats to block the use of the Congressional Review Act is likely to rest on their ability to win public relations battles.
“We are very confident that the public did not vote in this election to roll back our core environmental protections,” said Sara Chieffo, vice president of government affairs for the League of Conservation Voters.
The rules environmentalists are preparing to defend: an Interior Department rule restricting the amount of methane — a potent greenhouse gas — that can be released into the air by oil and gas producers drilling on public lands, and an Environmental Protection Agency decision that airplane exhaust contributes to global warming.
Republicans also will face time constraints. Given all that the GOP-controlled Senate will have on its plate early next year, from confirmation of Trump’s Cabinet nominees to moving big legislative items like a repeal of Obama’s health care law, most observers figure the Senate can handle killing off five to 10 of Obama’s regulations at most. So they will have to pick and choose.
And Democrats aren’t going to make it easy.
“This tactic is really unconscionable, especially for a president who had a populist message about standing up for people against the Washington swamp,” said Senator Richard Blumenthal of Connecticut.
Rolling back regulations protecting the environment, financial markets, and consumers “is catering to special interests. . . . We will fight tooth and nail against this use of this
antidemocratic device which is legally theirs to use but not to abuse.”