Wait, now they’re getting rid of background checks for gun purchases?? What?! If there’s one thing that can really get non-political people animated about politics it’s gun laws. Before Trump graced us with his presence in the political arena, most of my friends & acquaintances on Facebook rarely or never posted about politics (oh, how things have changed!). But whenever discussions in D.C. turned to gun laws (always in the wake of a mass shooting) my Facebook feed would fill up with people posting articles and arguments, both for and against, whatever new law was being proposed or – inevitably – had just been defeated.
So last week, when House Republicans voted to roll back a law requiring background checks for certain gun purchases (or so it seemed – more on what the law really did, below), it had everybody talking. Many people even seemed to think it was already a done deal. It’s not a done deal yet, but it very likely will be – and soon. But why is that? What the heck happened to the filibuster (i.e., demanding 60 votes for passage of a bill)?? I think we all remember way too well the years of gridlock in Congress under Obama – even when Democrats had the majority – thanks to Republicans using the filibuster on everything.* They were able to block Democrats from passing almost anything, and whatever they couldn’t block they slowed to a crawl. So why can’t Democrats do that to stop Republicans now??
In short, because Republicans are using an arcane and very rarely used “escape hatch” to get around it. Until last week, this escape hatch, which is found in a law called the Congressional Review Act (CRA), had only been used once ever to overturn a rule (also by Republicans that time, to overturn a Clinton-era rule). Now, Republicans in this Congress are on track to use it at least FIVE times in the first few weeks of the Trump Presidency. [If you don’t want the nitty-gritty on how this works, skip ahead to the section called “The Five Rules the GOP is Overturning Right Now”]
It’s a Rule, Not a Law
The first thing to know is that this gun “law” that the House just voted to reverse isn’t actually a law. It’s a rule. That might sound like semantics, but it’s a meaningful difference. Laws get initiated by Congress, spend lots of time in specialized committees being debated, and then go through numerous procedural hurdles before they can be passed through both chambers of Congress and signed by the President. It’s a complex and usually slow process. It’s only gotten slower and more complex as Washington has become increasingly polarized and the two sides have used whatever tools they have in the toolbox, such as the aforementioned filibuster, to make it harder for the other side.** And as we’ve seen, sometimes these tools can be used to block a law from passing entirely.
A rule does not come from Congress. It is a regulation issued by a government agency (e.g. the FDA, the EPA), under the authority of a law that governs its specific area of expertise (i.e. before the agency can make a rule, it must be instructed to do so by a specific law). The regulation is put in place to help carry out the intent of that particular law. For example, in a previous post I explained that much of the detail of the Dodd-Frank financial reform law isn’t actually written into the law but was left up to the relevant agencies (e.g. FDIC, SEC) to fill in.*** The Dodd-Frank law specifically gives those agencies the authority to do so. These agencies use their expertise to issue rules that regulate, for example, executive compensation or credit rating agencies, filling in the details that the law itself didn’t. As long as they are properly enacted, agency regulations have the force of law.
So, How are Rules Made?
The federal rule making process, like the process of legislating, is also quite slow and complex. The gist is that it has to go through several rounds of consultation and review with various stakeholders, advisors and experts, and then the final big hurdle is to give notice to the public about the proposed rule and allow a prescribed time for public comment (usually 30 to 60 days, but sometimes 180 days or longer depending on the complexity of the proposed rule). After that, the agency does a final review and determines whether to proceed with the regulation. The key point is that the entire process can take as much as a year or two. Typically, a similar process must be followed in order to undo a rule as well. And that is where we catch up to our current story. Because in most cases, if Republicans wanted to undo an Obama-era rule (a.k.a. regulation), they would have to wait for the relevant agencies to go through this entire one to two year process. But . . .
Enter The Congressional Review Act
Twenty-plus years ago, in a Congress led by Newt Gingrich, Republicans passed legislation called the Congressional Review Act (CRA). The stated intent was to give Congress oversight of the agency rules making process by allowing Congress to overturn rules issued by a federal agency. Now hang on here, because the law gets a little confusing, but you’ll see soon why the details matter: So within a designated time frame after a new rule is made, Congress can simply overturn it with a vote instead of sending it through the long, complex agency process described above. The formula for figuring out the exact time frame is fairly complicated, but for simplicity, it generally must be done within 60 days after the rule is made. But that time frame is a lot longer than it initially sounds, because it’s counted by “legislative days” (days when Congress is in session) not calendar days, and if you’ve ever looked at Congress’ legislative calendar, you might have noticed that they’re not in session very often.
But wait, there’s more! For rules made at the end of a legislative session (within the final 60 legislative days of the session), the clock restarts in the new session. So any rules the Obama administration made after June 13, 2016 (yup, that’s how far back you have to go to find the final 60 days Congress was in session leading up to January 3, 2017) are subject to this review, and the clock for reviewing them restarted with this new Congress. AND, once a rule is overturned using the CRA, an agency cannot issue another rule that is “substantially the same” as that one unless a later law specifically authorizes it (“substantially the same” has never been defined).
But I’m not done!! In order to overturn one of these rules, Congress simply needs a majority vote in each chamber, and then the signature of the President. The CRA specifically precludes a filibuster in the Senate. And right there’s the sneakiest part of the “escape hatch”: because Republicans are overturning these rules using the CRA, Democrats cannot stop or slow it with a filibuster.
The particular rule that’s gotten most of the focus, the gun rule, actually hasn’t been voted on in the Senate yet. So far it has only passed the House. But it will almost certainly have more than 50 votes when it goes to the Senate this week. So now that Republicans have a like-minded President with a pen in his hand, the CRA will allow them to reverse Obama’s gun rule with barely a week’s work, using a simple majority vote. And the Democrats will be powerless to stop them.
1) The CRA allows Republicans to circumvent the long, complex agency rules making process in order to roll back rules made in the last 6o “legislative days” of Obama’s term. The Congressional Research Service has determined that this would cover any rule made after June 13, 2016
2) They can overturn these rules with a simple majority vote in both chambers (and the President’s signature). This means Senate Democrats cannot stop them with a filibuster.
3) Once a rule is overturned using this method, an agency may not make another rule that is “substantially similar” unless it is specifically authorized to do so by a new law
The Five Rules the GOP is Overturning Right Now
In addition to the gun rule, Republicans are using the CRA to overturn four other Obama-era rules. They began voting on all five last week:
The Gun Rule – I’ll start with the gun rule, just for a little further explanation of exactly what Obama’s rule did. This rule would have affected people on social security disability insurance who have been designated as mentally impaired enough that they require someone else to manage their disability benefits for them. The Social Security Administration (SSA) would have been required to send their records to the federal firearms background check system. However, there’s been a lot of misunderstanding about the vote to overturn this rule. Even if this rule gets reversed, the background check system for gun sales will still be in place, and federal law will still bar sales to certain people with mental illnesses, the same as it had previously. But many people slip through the cracks of this system, because it’s difficult for the government to collect the necessary records, for many reasons including privacy concerns. The Obama rule was one attempt to fix that by requiring extra reporting from the SSA.
The rule was part of a larger effort by the Obama administration to institute new gun control measures after the 2012 Sandy Hook massacre. But this particular rule didn’t get finalized until the end of 2016, which is why it’s subject to reversal under the CRA. The rule was opposed not only by the NRA and many on the right side of the political spectrum, but also by some groups on the left such as the ACLU, and by the Consortium for Citizens with Disabilities. As mentioned above, the House voted to overturn this rule last week, the Senate has not yet voted.
The four other rules the GOP is in the process of overturning are:
Energy Company Disclosure Rule – This rule required publicly-traded oil, gas and mining companies to disclose any payments they made to foreign governments for drilling rights, etc. The intent of the rule was to increase transparency and root out corruption. This rule had bipartisan support back when the idea was initiated. Both chambers of Congress have voted to overturn this rule and it’s awaiting President Trump’s signature.
Stream Protection Rule – This was a rule that prevented coal mining companies from dumping waste in nearby streams. It was meant to protect 6,000 miles of streams and 52,000 acres of surrounding forests. The rule also required mining companies to restore mined areas to their original condition and to monitor for environmental effects. Both chambers of Congress have also voted to overturn this rule and it’s awaiting President Trump’s signature.
Methane Rule – This rule was intended to reduce harmful methane emissions. It required oil & gas companies working on public lands to capture the methane from leaks and sell it instead of burning it or letting it escape. The House has voted to overturn this rule. It’s still awaiting a vote in the Senate
Federal Contractors Rule – This rule required companies bidding on federal contracts worth more than $500,000 to report any labor violation or alleged violation they’ve had within the last three years. The House has voted to overturn this rule and it’s still awaiting a vote in the Senate.
It is nearly certain that all five of these rules will successfully be overturned using the CRA. And it’s possible, even likely, that Republicans will have additional rules in their sites for this treatment over the next few weeks or months. The Congressional Research Service put together a list of all the Obama-era rules that might be eligible for reversal under the CRA. If you don’t get a chance to click over, it’s 5 pages long, listing approximately 50 rules. That should give you an idea of the potential here. The main limiting factor is that under the CRA, each rule has to be voted on individually, and Republicans just may not want to devote that much time to undoing rules when they could be moving on to Obamcare repeal and tax cuts.
It Tells a Tale
When you consider this unprecedented use of the CRA by Republicans to overturn numerous Obama-era rules, and look at it in tandem with the record 20 executive actions (not counting 2 proclamations that do fluffy stuff) Trump has signed in his first 2 weeks, a clear picture emerges. It’s easy to see a Party with a long list of things it wants to do, in a real hurry to get them done. A party that is willing to use unprecedented tactics to make that happen.
The rule changes I talked about in this post might be relatively small in the grand scheme of all the changes likely in store under Trump & the GOP, but I think it’s important to stop and take note of all the different levers of government the GOP is using to press its agenda. And note that while they may not be thrilled with Trump the personality, they’re thrilled to have Trump the Republican President who can make all those things happen for them. It’s a reminder that just as Trump’s candidacy didn’t arise out of a vacuum, his Presidency isn’t occurring in a vacuum either – we must always keep in mind the context in which he operates.
*Though Republicans often like to claim that Democrats held a filibuster-proof majority (60 votes, if they all stuck together) throughout Obama’s first 2 years in office, there was actually only a brief period early in Obama’s presidency when that was the case. It lasted less than 3 months. Sen. Al Franken, who would have been the 60th Democrat, was not seated until 6 months after Obama’s inauguration due to a long election appeal battle initiated by his Republican challenger back in Minnesota. By the time Franken was seated, Sen Ted Kennedy of Massachusetts was too sick to participate in Senate votes. After Sen. Kennedy died a few months later, a temporary appointment was made to replace him. Democrats had less than 3 months with that temporary appointment, a Democrat, before Republican Scott Brown was elected to officially fill that seat. It was only during that brief interim between Kennedy & Brown that Democrats had a filibuster-proof majority.
**I should note that while both sides are guilty, this polarization has not been symmetrical. The GOP has become particularly extreme, beginning with Newt Gingrich’s turn as Speaker of the House in the 90s, and then spiking again during the 8 years under Obama’s presidency. If you’re interested in this, please read the great book It’s Even Worse Than It Looks, which I’ve recommended previously. The authors are two non-partisan political scientists who have been observing Washington, D.C. politics for decades.
***In that post, I discussed how Trump’s recent executive order can’t repeal Dodd-Frank the order can direct his agencies to undo much of the law by reversing or modifying their rules. Many of those rules will need to go through the long, arduous agency rules making process in order to be changed or reversed. But some of them, since they were only finalized in the last few months of the Obama presidency, can be simply & quickly reversed by Congress under the CRA, using the process described in this post. (And for a general explainer on what Trump can & can’t do by executive order, see this post, if you missed it the first time around).