Forcing Washington to play by the rules: applying the CRA to cut job-killing red tape
By Todd Gaziano and Robert Alt. Originally published at SPN News.
If the states are laboratories of democracy, then state think tanks are the scientists toiling, experimenting, and spreading the word about their great discoveries. But far too often their good ideas—ideas that have the potential to improve lives—languish because federal agency rules prevent experimentation. What if there were a way to roll back some of those harmful regulations and do so quickly?
There is. After 21 years of limited use, the Congressional Review Act (CRA) has been rediscovered as a powerful tool to overturn the worst “midnight” regulations issued at the end of the Obama Administration. Kimberly Strassel wrote in her Wall Street Journal Opinion: Potomac Watch column that deploying the CRA in new ways to kill these burdensome, illegal, and sclerotic rules was a “regulatory game changer.”
How does it change the game? Even when used in its traditional manner, the CRA enables members of Congress to use fast-track procedures to enact resolutions of disapproval to kill any rule recently sent to Congress. These resolutions are not subject to a filibuster and are subject to limited debate time.
Despite the glacial speed with which Washington ordinarily moves, within four months of Trump’s inauguration, Congress was able to obliterate 14 job-killing Obama-era rules. Eliminating this first round of counterproductive regulations is just the start.
You probably won’t be surprised to learn that the very people charged with making rules in Washington have not been playing by the rules themselves. The CRA requires agencies to send reports to both houses of Congress when they issue any kind of rule, guidance, dear colleague letter, etc. before the new regulations can take effect. Yet most of the agencies haven’t been doing so consistently—for years.
Co-author Todd Gaziano (one of the original drafters of the CRA when he served as counsel for then-Congressman David McIntosh) discovered that there are hundreds of rules and guidance documents that could be knocked out by the CRA—not just the so-called midnight Obama-era regulations. And these rules have an impact on the daily lives of people in every state.
Three regulations in need of CRA review
Take, for example, a regulation related to the use of western lands that has been promulgated to protect the sage grouse. Despite the fact that this bird is neither endangered nor close to it—there are even hunting seasons for it in some states—the Bureau of Land Management and the US Forest Service enacted a plan during the Obama Administration that heavily restricts land use in 10 western states covering 165 million acres ostensibly to save this bird. However, these same bureaucrats failed to send their four new rules to Congress, and therefore they may still be subjected to congressional review under the CRA.
But, wait, there’s more: here are two more rules (of many) that should be subjected to CRA review. One is the Equal Employment Opportunity Commission’s attempt to make it easier for employees in businesses across the country to bring potentially bogus claims of retaliation. The other is the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ attempt to expand the criteria under which the private sale of firearms would require the heavily burdensome federal firearm’s license.
Three ways to create sweeping reform
There are at least three opportunities to use the CRA to create some of the most sweeping changes in Washington’s agency-made law in the past 50 years.
First, the administration should order a review of all rules never sent to Congress. Then they should select some to send on a regular basis to start the clock on fast-track procedures to kill them. If rules are killed in this way, the agency is barred from issuing a substantially similar rule ever again, unless Congress passes a new law specifically authorizing it.
Second, because the CRA states that agencies must send their reports to Congress before the rules can take effect, the administration can and should kill most of the bad rules on its own. Doing so upends the normal bureaucratic dynamics and allows the administration to simply announce that hundreds of bad policy, enforcement manuals, and rules were never in effect and won’t be revived.
Third, bring in the lawyers. Because rules that were not reported to Congress do not take effect, there is ample room for public-interest law firms to establish that enforcement actions cannot rely on these unreported rules. Administration lawyers should seek reconsideration of hundreds of pending suits.
Three ways you can participate
To promote these opportunities for reform, Pacific Legal Foundation launched a project—Red Tape Rollback—to systematically identify and dismantle these counterproductive regulations. RedTapeRollback.com is the public face of this movement, which also provides information and tools for citizen and state think tank engagement. The project’s founding partners are The Buckeye Institute, Club for Growth, The Heritage Foundation, State Policy Network, and Competitive Enterprise Institute.
We invite the network to join this project as partners as soon as possible by emailing your statement of support to firstname.lastname@example.org. We will then feature your partnership and logo on the website, and you can tout your participation in this project to your own supporters.
Secondly, you should encourage your supporters to go to RedTapeRollback.com to click on the link for “Illegal Rules.” There they can use the search tools to find out whether the federal regulations that are holding back their businesses or interfering with their lives have been submitted to Congress for review, or whether they could get relief from these regulations through the use of the CRA. They will also be able to nominate these rules that are harming them for CRA review, and be provided an opportunity to explain why the rules should be eliminated.
Finally, we encourage the network to request that the Office of Management and Budget, in carrying out its duty to reorganize the executive branch, conduct a comprehensive audit of all regulations issued since the CRA was passed in 1996 to see what rules have not been submitted to Congress as required by law. Suggestions to this effect may be made online.
By building a powerful coalition and fueling the leading strategies for using the CRA, we can achieve repeal or modification of hundreds of significant and devastating regulations. This will enable us to act as a single-minded catalyst for additional reform in Congress, the executive branch, and the courts. Our success in this project will energize supporters and educate the public about the benefits of the Red Tape Rollback movement. It will also reassure sympathetic judges that they are not going “out on a limb” in restoring the constitutional separation of powers that the framers of our beloved Constitution rightly understood was the strongest protection of liberty. And, in so doing, we all do our part to restore the states as true laboratories of democracy.
Todd Gaziano is the Executive Director and Senior Fellow in Constitutional Law at the Pacific Legal Foundation‘s DC Center. Robert Alt is President and Chief Executive Officer at The Buckeye Institute.