The Democratic Congress is taking a cautious approach on one of their most powerful tools for undoing damage wrought by Trump, the Congressional Review Act (CRA). One of the problems they face is in the nature of that tool. It allows Congress to overrule an administration's regulations within an established rule period. But like pretty much anything cooked up by Newt Gingrich (and it was created when he was House Speaker in 1996) it was designed to be more helpful to Republicans than to Democrats; it allows for total destruction of regulations (a perennial Republican goal), rather than the precision revising of regulations. The very tricky thing Gingrich did was preclude a subsequent administration from making a similar rule in the future unless it is authorized by new legislation. It also bars judicial review—meaning that a resolution of disapproval cannot be challenged in federal court. It's also another thing that Republicans determined should be expedited, not subject to a filibuster.
In the case of three Trump rules, however, the caution about using the CRA didn't overcome the need to undo Trump damage, and the House is scheduled to eliminate them this week, acting after the Senate. One of the measures restores standards for methane emissions from the Obama administration. Another overturns a banking role that would allow payday lenders to partner with banks to make loans at high interest rates—rates the banks aren't allowed to charge. The final CRA vote in the House is on an Equal Employment Opportunity Commission (EEOC) rule that opponents argue gave employers unfair advantage in discrimination complaints.
These are all pretty straightforward bad things that should be undone, and don't need to be revised. But using the CRA broadly has been a concern for Democrats. As Daniel Pérez, a senior policy analyst at George Washington University’s Regulatory Studies Center, told The Hill, "It's a sledgehammer, not a scalpel," and it could do destruction beyond just striking down a rule.
"The Congressional Review Act is quite possibly the worst law Congress has ever enacted," said James Goodwin, a senior policy analyst with the left-leaning Center for Progressive Reform. "Very often, using the CRA puts Republicans where they want to be at. Almost never does using the CRA put Democrats where they want to be at," he said. Hence the Democrats' caution. But these? They can go.
"This resolution is important, it's probably one of the most important things that we can do right now because methane emissions are so damaging to the climate," Rep. Diana DeGette a Colorado Democrat, told The Hill. The Senate passed the CRA on methane 52-42, with Senate Majority Leader Chuck Schumer calling a "big deal" in fighting climate change. It reinstates the 2012 and 2016 Oil and Natural Gas New Source Performance Standards set by the Obama administration that govern oil production and processing.
The banking CRA is a wonkier one, with a rule shoved through last fall that allows the Office of Comptroller of the Currency (OCC) to determine which is the "true lender" in loans issued to consumers through partnerships between nationally chartered banks and third party, nonbank lenders—usually payday lenders. Democratic state attorneys general sued to throw out the regulation in January, arguing that the rule violates consumer protection laws. Sen. Sherrod Brown, chair of the Banking Committee, championed this CRA.
“You can stand on the side of online payday lenders that brag about their creativity in avoiding the law and finding new ways to prey on workers and their families,” Brown said during the Senate debate, "or we can stand up for families and small businesses, and the state attorneys general and state legislatures who have said 'enough.'" The rule allows for "rent-a-bank" schemes, and have resulted in loans that "are still extremely high cost and extremely predatory," according to Lisa Stifler, director of state policy at the Center for Responsible Lending.
As for the EEOC rule that the House will be overturning, it would have changed the pre-litigation settlement process, requiring the Commission to provide information that would expose the identities of employees who have alleged discrimination as well as witnesses, increasing the potential for retaliation against them. Critics of the rule also said that it made extra, unnecessary work for the EEOC, forcing it to produce reams of documentation in cases for employers rather than using its limited resources to combat actual discrimination. "That rule was designed to make it easier for employers to delay or deny justice to workers who have experienced discrimination on the job," Sen. Patty Murray said during the floor debate on the CRA.
"When workers bring credible claims of discrimination to the EEOC, they deserve a fair process that protects their rights and shields them from retaliation," said House Education and Labor Committee Chairman Bobby Scott, a Virginia Democrat. He is the House sponsor for the resolution to toss this rule.