I SPy

[Note 5/8: This post was originally written immediately after the GOP voted to overturn the internet privacy rule in late March. I used that vote as an example to help explain the Congressional Review Act in the post below. However the GOP has also used the Congressional Review Act to overturn a dozen other Obama-era rules in the last few months.]

Wait, you’re telling me you don’t want Comcast or Verizon to know your bra size?  Or that you secretly love Baywatch reruns??private keep out To the surprise of no sentient being anywhere, Americans have reacted with widespread outrage to the move by Republicans to overturn internet privacy protections put in place by the Obama administration shortly before Obama left office.

Reversing these privacy protections will allow internet service providers (ISPs) to collect & sell customer data to advertisers and other third parties without customer permission. (And of course the privacy intrusion is even worse than underwear size & tv viewing habits, as ISPs will be able to use your most sensitive personal information, such as financial and health data).   Both the House and the Senate have voted to reverse these regulations, and President Trump is expected to sign the change into law.

But how much more outraged would you be if you knew that Trump & the GOP were employing a completely obscure, almost never-used maneuver in order to make this change happen?  In yesterday’s post, I talked about how Trump & the GOP – unable to manage the basic task of passing normal legislation through Congress – were instead using a roster of alternate methods to roll back Obama’s legacy.  One of the methods mentioned was the Congressional Review Act (CRA).  And it’s through the CRA that they’re reversing Obama’s internet privacy protections.

Last month, Republicans used the CRA to overturn the Obama gun rule that would have prevented certain mentally ill Social Security disability recipients from being able to purchase guns. I wrote a post then, explaining how the Congressional Review Act works.  I’m going to reprint a portion of that post here (with some minor updates), because I think it’s really important to understand the lengths the GOP is going to in order to dismantle Obama’s regulatory framework.

By using the CRA, Trump & the GOP are circumventing the normally long, deliberate, public process required to reverse a regulation, and instead are overturning this rule (and many others) within a matter of weeks, with very little notice to us, the public, the people they are supposed to serve.  And with that, here’s the reprint from my prior post . . .

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You might be wondering, why couldn’t Democrats stop this from passing the Senate? 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, it’s because Republicans are using an arcane and very rarely used “escape hatch” to get around it.  Prior to the Trump Presidency, this escape hatch, which is found in a law called the Congressional Review Act (CRA), had only been used once ever to overturn a regulation (also by Republicans that time, under George W. Bush, to overturn a Clinton-era rule).  Now, Trump & the GOP have already used it to overturn SEVEN Obama era regulations (this does not include the internet privacy protections, since Trump hasn’t signed it yet).  And they have 20+ more in the works.

It’s a Rule, Not a Law

So how does the CRA work? The first thing to know is that the internet privacy “law” isn’t actually a law.  It’s a rule.  That might sound like semantics, but it’s a meaningful difference, since as you’ll see below, the CRA only allows rules (not laws) to be overturned under its provisions.

Laws are 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, on the other hand, does not come from Congress. Rules check cropIt is a regulation issued by a government agency (e.g. the FDA, the EPA, the FCC), under the authority of a law that governs the agency’s 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 regulations are 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 this.  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 a rule 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). crowd cartoon

The public comment period is a very important part of the rule making process, because it subjects the proposed rule to the will of the people.  Agency experts are not themselves subject to the will of the voters, but the public comment period ensures that the people at least still get a voice. After public comment, the agency does a final review and determines whether to proceed with the regulation.

The 2 key points here are that (1) the process is transparent and (2) 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-one 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.  Here’s what the CRA really does: Within a designated time frame after a new rule is made, Congress can simply overturn that rule with a vote instead of sending it through the years-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.calendar-3

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 last year) are subject to this review, and the clock for reviewing them restarted with this new Congress.  So in reality, the Republican Congress has much longer than 60 days to overturn these rules. They will have until early May to continue to overturn rules using this method.

In order to overturn one of these rules under the CRA, Congress simply needs a majority vote in each chamber, and then the signature of the President.  In other words, the CRA specifically precludes a filibuster in the Senate.  This might be the sneakiest part of this “escape hatch” method: because Republicans are overturning these rules using the CRA, Democrats cannot stop or slow them with a filibuster.

AND this is really important: once a rule is overturned using the CRA, an agency can never 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 by a court, so we don’t know its precise meaning).  So because these internet privacy rules are being overturned through the CRA, the FCC can’t come back a few years from now, under a Democratic President, and just reinstitute them.

In Sum 

1) The CRA allows Republicans to circumvent the long, complex agency rules making process when rolling 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

Parting Thought

A few days ago at his press briefing, Sean Spicer bragged about Trump using the CRA to reverse more regulations than had been done in all of the CRA’s history.  He said:

Before this administration, only one time in the nation’s history had a President ever signed a bill that used the Congressional Review Act to cancel a federal regulation.  In just his first 66 days as President, he will have signed six resolutions to eliminate unnecessary and burdensome rules.

I guess whether that’s something worth bragging about is all a matter of perspective.

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*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.

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15 thoughts on “I SPy

  1. eightwells March 30, 2017 / 8:03 am

    Wow. Very nicely explained. Good to learn how this all works. Thanks.

    Liked by 1 person

  2. Karen March 30, 2017 / 2:12 pm

    I had no idea how this worked . Very understandable explanation. Thank you for all the time you put into this.k

    Liked by 1 person

  3. jereading March 31, 2017 / 2:33 am

    Thank you for publishing this well written, easy to grasp article. Like many others, I was operating under the notion that all of this overturning could simply be reversed. Since it is not so without a new law (is it one addressing the CRA in scope or one for each item reversed – not quite getting that part) this “sunshine and rainbows” vision of future possibilities that I sometimes muse about is pretty much smoke and mirrors! Ugh. It really seems like the deconstructed state Bannon gushed about will be with us for some time to come.

    Liked by 1 person

    • DC Deciphered March 31, 2017 / 10:22 am

      Hi jereading, I’m glad you found the article helpful. Thanks for reading!
      To answer your question: In the specific example here – internet privacy protections – in order for the FCC to put out this type of regulation again after it’s been reversed under the CRA, Congress would have to pass a new law that specifically gives the FCC authority to make such a regulation. The same would go for any of these rules being overturned by the CRA – the agencies involved would need to have specific authority granted to them by a new law.

      However, as I mentioned in the post, what the CRA says is that no agency can issue a regulation that is “substantially similar” to the one that’s overturned. And no one knows exactly what “substantially similar” means, because it’s never been tested in real life yet. Since the CRA had only been used ONCE before this current spree, this has just never been a practical issue before. So it’s possible there’s some wiggle room in there, as far as what the agencies could do.

      Also, it’s possible that this aspect of the CRA (barring substantially similar laws) is itself unconstitutional. It hasn’t previously gotten any attention, because, again, no one was using the law so it didn’t matter. But now, some industry lawyers are starting to take a look at it. We may start to see some lawsuits in this area, now that the GOP is going on such a tear.

      And yes, you’re so right, they’re attacking the administrative state from every direction. They have lots of tools in the tool box. You might be interested in recent post I wrote that touched on this called, Deference Mechanism. Thanks again for reading!

      Like

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