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At this point, only the most masochistic and cynical among DC’s policy elite actually desire for the net neutrality conflict to continue. And yet, despite claims that net neutrality principles are critical to protecting consumers, passage of the current Congressional Review Act (“CRA”) disapproval resolution in Congress would undermine consumer protection and promise only to drag out the fight even longer.

The CRA resolution is primarily intended to roll back the FCC’s re-re-classification of broadband as a Title I service under the Communications Act in the Restoring Internet Freedom Order (“RIFO”). The CRA allows Congress to vote to repeal rules recently adopted by federal agencies; upon a successful CRA vote, the rules are rescinded and the agency is prohibited from adopting substantially similar rules in the future.

But, as TechFreedom has noted, it’s not completely clear that a CRA on a regulatory classification decision will work quite the way Congress intends it and could just trigger more litigation cycles, largely because it is unclear what parts of the RIFO are actually “rules” subject to the CRA. Harold Feld has written a critique of TechFreedom’s position, arguing, in effect, that of course the RIFO is a rule; TechFreedom responded with a pretty devastating rejoinder.

But this exchange really demonstrates TechFreedom’s central argument: It is sufficiently unclear how or whether the CRA will apply to the various provisions of the RIFO, such that the only things the CRA is guaranteed to do are 1) to strip consumers of certain important protections — it would take away the FCC’s transparency requirements for ISPs, and imperil privacy protections currently ensured by the FTC — while 2) prolonging the already interminable litigation and political back-and-forth over net neutrality.

The CRA is political theater

The CRA resolution effort is not about good Internet regulatory policy; rather, it’s pure political opportunism ahead of the midterms. Democrats have recognized net neutrality as a good wedge issue because of its low political opportunity cost. The highest-impact costs of over-regulating broadband through classification decisions are hard to see: Rather than bad things happening, the costs arrive in the form of good things not happening. Eventually those costs work their way to customers through higher access prices or less service — especially in rural areas most in need of it — but even these effects take time to show up and, when they do, are difficult to pin on any particular net neutrality decision, including the CRA resolution. Thus, measured in electoral time scales, prolonging net neutrality as a painful political issue — even though actual resolution of the process by legislation would be the sensible course — offers tremendous upside for political challengers and little cost.  

The truth is, there is widespread agreement that net neutrality issues need to be addressed by Congress: A constant back and forth between the FCC (and across its own administrations) and the courts runs counter to the interests of consumers, broadband companies, and edge providers alike. Virtually whatever that legislative solution ends up looking like, it would be an improvement over the unstable status quo.

There have been various proposals from Republicans and Democrats — many of which contain provisions that are likely bad ideas — but in the end, a bill passed with bipartisan input should have the virtue of capturing an open public debate on the issue. Legislation won’t be perfect, but it will be tremendously better than the advocacy playground that net neutrality has become.

What would the CRA accomplish?

Regardless of what one thinks of the substantive merits of TechFreedom’s arguments on the CRA and the arcana of legislative language distinguishing between agency “rules” and “orders,” if the CRA resolution is successful (a prospect that is a bit more likely following the Senate vote to pass it) what follows is pretty clear.

The only certain result of the the CRA resolution becoming law would be to void the transparency provisions that the FCC introduced in the RIFO — the one part of the Order that is pretty clearly a “rule” subject to CRA review — and it would disable the FCC from offering another transparency rule in its place. Everything else is going to end up — surprise! — before the courts, which would serve only to keep the issues surrounding net neutrality unsettled for another several years. (A cynic might suggest that this is, in fact, the goal of net neutrality proponents, for whom net neutrality has been and continues to have important political valence.)

And if the CRA resolution withstands the inevitable legal challenge to its rescision of the rest of the RIFO, it would also (once again) remove broadband privacy from the FTC’s purview, placing it back into the FCC’s lap — which is already prohibited from adopting privacy rules following last year’s successful CRA resolution undoing the Wheeler FCC’s broadband privacy regulations. The result is that we could be left without any broadband privacy regulator at all — presumably not the outcome strong net neutrality proponents want — but they persevere nonetheless.

Moreover, TechFreedom’s argument that the CRA may not apply to all parts of the RIFO could have a major effect on whether or not Congress is even accomplishing anything at all (other than scoring political points) with this vote. It could be the case that the CRA applies only to “rules” and not “orders,” or it could be the case that even if the CRA does apply to the RIFO, its passage would not force the FCC to revive the abrogated 2015 Open Internet Order, as proponents of the CRA vote hope.

Whatever one thinks of these arguments, however, they are based on a sound reading of the law and present substantial enough questions to sustain lengthy court challenges. Thus, far from a CRA vote actually putting to rest the net neutrality issue, it is likely to spawn litigation that will drag out the classification uncertainty question for at least another year (and probably more, with appeals).

Stop playing net neutrality games — they aren’t fun

Congress needs to stop trying to score easy political points on this issue while avoiding the hard and divisive work of reaching a compromise on actual net neutrality legislation. Despite how the CRA is presented in the popular media, a CRA vote is the furthest thing from a simple vote for net neutrality: It’s a political calculation to avoid accountability.

I had the pleasure last month of hosting the first of a new annual roundtable discussion series on closing the rural digital divide through the University of Nebraska’s Space, Cyber, and Telecom Law Program. The purpose of the roundtable was to convene a diverse group of stakeholders — from farmers to federal regulators; from small municipal ISPs to billion dollar app developers — for a discussion of the on-the-ground reality of closing the rural digital divide.

The impetus behind the roundtable was, quite simply, that in my five years living in Nebraska I have consistently found that the discussions that we have here about the digital divide in rural America are wholly unlike those that the federally-focused policy crowd has back in DC. Every conversation I have with rural stakeholders further reinforces my belief that those of us who approach the rural digital divide from the “DC perspective” fail to appreciate the challenges that rural America faces or the drive, innovation, and resourcefulness that rural stakeholders bring to the issue when DC isn’t looking. So I wanted to bring these disparate groups together to see what was driving this disconnect, and what to do about it.

The unfortunate reality of the rural digital divide is that it is an existential concern for much of America. At the same time, the positive news is that closing this divide has become an all-hands-on-deck effort for stakeholders in rural America, one that defies caricatured political, technological, and industry divides. I have never seen as much agreement and goodwill among stakeholders in any telecom community as when I speak to rural stakeholders about digital divides. I am far from an expert in rural broadband issues — and I don’t mean to hold myself out as one — but as I have engaged with those who are, I am increasingly convinced that there are far more and far better ideas about closing the rural digital divide to be found outside the beltway than within.

The practical reality is that most policy discussions about the rural digital divide over the past decade have been largely irrelevant to the realities on the ground: The legal and policy frameworks focus on the wrong things, and participants in these discussions at the federal level rarely understand the challenges that define the rural divide. As a result, stakeholders almost always fall back on advocating stale, entrenched, viewpoints that have little relevance to the on-the-ground needs. (To their credit, both Chairman Pai and Commissioner Carr have demonstrated a longstanding interest in understanding the rural digital divide — an interest that is recognized and appreciated by almost every rural stakeholder I speak to.)

Framing Things Wrong

It is important to begin by recognizing that contemporary discussion about the digital divide is framed in terms of, and addressed alongside, longstanding federal Universal Service policy. This policy, which has its roots in the 20th century project of ensuring that all Americans had access to basic telephone service, is enshrined in the first words of the Communications Act of 1934. It has not significantly evolved from its origins in the analog telephone system — and that’s a problem.

A brief history of Universal Service

The Communications Act established the FCC

for the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States … a rapid, efficient, Nation-wide, and world-wide wire and radio communication service ….

The historic goal of “universal service” has been to ensure that anyone in the country is able to connect to the public switched telephone network. In the telephone age, that network provided only one primary last-mile service: transmitting basic voice communications from the customer’s telephone to the carrier’s switch. Once at the switch various other services could be offered — but providing them didn’t require more than a basic analog voice circuit to the customer’s home.

For most of the 20th century, this form of universal service was ensured by fiat and cost recovery. Regulated telephone carriers (that is, primarily, the Bell operating companies under the umbrella of AT&T) were required by the FCC to provide service to all comers, at published rates, no matter the cost of providing that service. In exchange, the carriers were allowed to recover the cost of providing service to high-cost areas through the regulated rates charged to all customers. That is, the cost of ensuring universal service was spread across and subsidized by the entire rate base.

This system fell apart following the break-up of AT&T in the 1980s. The separation of long distance from local exchange service meant that the main form of cross subsidy — from long distance to local callers — could no longer be handled implicitly. Moreover, as competitive exchange services began entering the market, they tended to compete first, and most, over the high-revenue customers who had supported the rate base. To accommodate these changes, the FCC transitioned from a model of implicit cross-subsidies to one of explicit cross-subsidies, introducing long distance access charges and termination fees that were regulated to ensure money continued to flow to support local exchange carriers’ costs of providing services to high-cost users.

The 1996 Telecom Act forced even more dramatic change. The goal of the 1996 Telecom Act was to introduce competition throughout the telecom ecosystem — but the traditional cross-subsidy model doesn’t work in a competitive market. So the 1996 Telecom Act further evolved the FCC’s universal service mechanism, establishing the Universal Service Fund (USF), funded by fees charged to all telecommunications carriers, which would be apportioned to cover the costs incurred by eligible telecommunications carriers in providing high-cost (and other “universal”) services.

The problematic framing of Universal Service

For present purposes, we need not delve into these mechanisms. Rather, the very point of this post is that the interminable debates about these mechanisms — who pays into the USF and how much; who gets paid out of the fund and how much; and what services and technologies the fund covers — simply don’t match the policy challenges of closing the digital divide.

What the 1996 Telecom Act does offer is a statement of the purposes of Universal Service. In 47 USC 254(b)(3), the Act states the purpose of ensuring “Access in rural and high cost areas”:

Consumers in all regions of the Nation, including low-income consumers and those in rural, insular, and high cost areas, should have access to telecommunications and information services … that are reasonably comparable to those services provided in urban areas ….

This is a problematic framing. (I would actually call it patently offensive…). It is a framing that made sense in the telephone era, when ensuring last-mile service meant providing only basic voice telephone service. In that era, having any service meant having all service, and the primary obstacles to overcome were the high-cost of service to remote areas and the lower revenues expected from lower-income areas. But its implicit suggestion is that the goal of federal policy should be to make rural America look like urban America.

Today universal service, at least from the perspective of closing the digital divide, means something different, however. The technological needs of rural America are different than those of urban America; the technological needs of poor and lower-income America are different than those of rich America. Framing the goal in terms of making sure rural and lower-income America have access to the same services as urban and wealthy America is, by definition, not responsive to (or respectful of) the needs of those who are on the wrong side of one of this country’s many digital divides. Indeed, that goal almost certainly distracts from and misallocates resources that could be better leveraged towards closing these divides.

The Demands of Rural Broadband

Rural broadband needs are simultaneously both more and less demanding than the services we typically focus on when discussing universal service. The services that we fund, and the way that we approach how to close digital divides, needs to be based in the first instance on the actual needs of the community that connectivity is meant to serve. Take just two of the prototypical examples: precision and automated farming, and telemedicine.

Assessing rural broadband needs

Precision agriculture requires different networks than does watching Netflix, web surfing, or playing video games. Farms with hundreds or thousands of sensors and other devices per acre can put significant load on networks — but not in terms of bandwidth. The load is instead measured in terms of packets and connections per second. Provisioning networks to handle lots of small packets is very different from provisioning them to handle other, more-typical (to the DC crowd), use cases.

On the other end of the agricultural spectrum, many farms don’t own their own combines. Combines cost upwards of a million dollars. One modern combine is sufficient to tend to several hundred acres in a given farming season. It is common for many farmers to hire someone who owns a combine to service their fields. During harvest season, for instance, one combine service may operate on a dozen farms during harvest season. Prior to operation, modern precision systems need to download a great deal of GIS, mapping, weather, crop, and other data. High-speed Internet can literally mean the difference between letting a combine sit idle for many days of a harvest season while it downloads data and servicing enough fields to cover the debt payments on a million dollar piece of equipment.

Going to the other extreme, rural health care relies upon Internet connectivity — but not in the ways it is usually discussed. The stories one hears on the ground aren’t about the need for particularly high-speed connections or specialized low-latency connections to allow remote doctors to control surgical robots. While tele-surgery and access to highly specialized doctors are important applications of telemedicine, the urgent needs today are far more modest: simple video consultations with primary care physicians for routine care, requiring only a moderate-speed Internet connection capable of basic video conferencing. In reality, literally megabits per second (not even 10 mbps) can mean the difference between a remote primary care physician being able to provide basic health services to a rural community and that community going entirely unserved by a doctor.

Efforts to run gigabit connections and dedicated fiber to rural health care facilities may be a great long-term vision — but the on-the-ground need could be served by a reliable 4G wireless connection or DSL line. (Again, to their credit, this is a point that Chairman Pai and Commissioner Carr have been highlighting in their recent travels through rural parts of the country.)

Of course, rural America faces many of the same digital divides faced elsewhere. Even in the wealthiest cities in Nebraska, for instance, significant numbers of students are eligible for free or reduced price school lunches — a metric that corresponds with income — and rely on anchor institutions for Internet access. The problem is worse in much of rural Nebraska, where there may simply be no Internet access at all.

Addressing rural broadband needs

Two things in particular have struck me as I have spoken to rural stakeholders about the digital divide. The first is that this is an “all hands on deck” problem. Everyone I speak to understands the importance of the issue. Everyone is willing to work with and learn from others. Everyone is willing to commit resources and capital to improve upon the status quo, including by undertaking experiments and incurring risks.

The discussions I have in DC, however, including with and among key participants in the DC policy firmament, are fundamentally different. These discussions focus on tweaking contribution factors and cost models to protect or secure revenues; they are, in short, missing the forest for the trees. Meanwhile, the discussion on the ground focuses on how to actually deploy service and overcome obstacles. No amount of cost-model tweaking will do much at all to accomplish either of these.

The second striking, and rather counterintuitive, thing that I have often heard is that closing the rural digital divide isn’t (just) about money. I’ve heard several times the lament that we need to stop throwing more money at the problem and start thinking about where the money we already have needs to go. Another version of this is that it isn’t about the money, it’s about the business case. Money can influence a decision whether to execute upon a project for which there is a business case — but it rarely creates a business case where there isn’t one. And where it has created a business case, that case was often for building out relatively unimportant networks while increasing the opportunity costs of building out more important networks. The networks we need to build are different from those envisioned by the 1996 Telecom Act or FCC efforts to contort that Act to fund Internet build-out.

Rural Broadband Investment

There is, in fact, a third particularly striking thing I have gleaned from speaking with rural stakeholders, and rural providers in particular: They don’t really care about net neutrality, and don’t see it as helpful to closing the digital divide.  

Rural providers, it must be noted, are generally “pro net neutrality,” in the sense that they don’t think that ISPs should interfere with traffic going over their networks; in the sense that they don’t have any plans themselves to engage in “non-neutral” conduct; and also in the sense that they don’t see a business case for such conduct.

But they are also wary of Title II regulation, or of other rules that are potentially burdensome or that introduce uncertainty into their business. They are particularly concerned that Title II regulation opens the door to — and thus creates significant uncertainty about the possibility of — other forms of significant federal regulation of their businesses.

More than anything else, they want to stop thinking, talking, and worrying about net neutrality regulations. Ultimately, the past decade of fights about net neutrality has meant little other than regulatory cost and uncertainty for them, which makes planning and investment difficult — hardly a boon to closing the digital divide.

The basic theory of the Wheeler-era FCC’s net neutrality regulations was the virtuous cycle — that net neutrality rules gave edge providers the certainty they needed in order to invest in developing new applications that, in turn, would drive demand for, and thus buildout of, new networks. But carriers need certainty, too, if they are going to invest capital in building these networks. Rural ISPs are looking for the business case to justify new builds. Increasing uncertainty has only negative effects on the business case for closing the rural digital divide.

Most crucially, the logic of the virtuous cycle is virtually irrelevant to driving demand for closing the digital divide. Edge innovation isn’t going to create so much more value that users will suddenly demand that networks be built; rather, the applications justifying this demand already exist, and most have existed for many years. What stands in the way of the build-out required to service under- or un-served rural areas is the business case for building these (expensive) networks. And the uncertainty and cost associated with net neutrality only exacerbate this problem.

Indeed, rural markets are an area where the virtuous cycle very likely turns in the other direction. Rural communities are actually hotbeds of innovation. And they know their needs far better than Silicon Valley edge companies, so they are likely to build apps and services that better cater to the unique needs of rural America. But these apps and services aren’t going to be built unless their developers have access to the broadband connections needed to build and maintain them, and, most important of all, unless users have access to the broadband connections needed to actually make use of them. The upshot is that, in rural markets, connectivity precedes and drives the supply of edge services not, as the Wheeler-era virtuous cycle would have it, the other way around.

The effect of Washington’s obsession with net neutrality these past many years has been to increase uncertainty and reduce the business case for building new networks. And its detrimental effects continue today with politicized and showboating efforts to to invoke the Congressional Review Act in order to make a political display of the 2017 Restoring Internet Freedom Order. Back in the real world, however, none of this helps to provide rural communities with the type of broadband services they actually need, and the effect is only to worsen the rural digital divide, both politically and technologically.

The Road Ahead …?

The story told above is not a happy one. Closing digital divides, and especially closing the rural digital divide, is one of the most important legal, social, and policy challenges this country faces. Yet the discussion about these issues in DC reflects little of the on-the-ground reality. Rather advocates in DC attack a strawman of the rural digital divide, using it as a foil to protect and advocate for their pet agendas. If anything, the discussion in DC distracts attention and diverts resources from productive ideas.

To end on a more positive note, some are beginning to recognize the importance and direness of the situation. I have noted several times the work of Chairman Pai and Commissioner Carr. Indeed, the first time I met Chairman Pai was when I had the opportunity to accompany him, back when he was Commissioner Pai, on a visit through Diller, Nebraska (pop. 287). More recently, there has been bipartisan recognition of the need for new thinking about the rural digital divide. In February, for instance, a group of Democratic senators asked President Trump to prioritize rural broadband in his infrastructure plans. And the following month Congress enacted, and the President signed, legislation that among other things funded a $600 million pilot program to award grants and loans for rural broadband built out through the Department of Agriculture’s Rural Utilities Service. But both of these efforts rely too heavily on throwing money at the rural divide (speaking of the recent legislation, the head of one Nebraska-based carrier building out service in rural areas lamented that it’s just another effort to give carriers cheap money, which doesn’t do much to help close the divide!). It is, nonetheless, good to see urgent calls for and an interest in experimenting with new ways to deliver assistance in closing the rural digital divide. We need more of this sort of bipartisan thinking and willingness to experiment with new modes of meeting this challenge — and less advocacy for stale, entrenched, viewpoints that have little relevance to the on-the-ground reality of rural America.

On July 10, the Consumer Financial Protection Bureau (CFPB) announced a new rule to ban financial service providers, such as banks or credit card companies, from using mandatory arbitration clauses to deny consumers the opportunity to participate in a class action (“Arbitration Rule”).  The Arbitration Rule’s summary explains:

First, the final rule prohibits covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action concerning the covered consumer financial product or service. Second, the final rule requires covered providers that are involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau and also to submit specified court records. The Bureau is also adopting official interpretations to the regulation.

The Arbitration Rule’s effective date is 60 days following its publication in the Federal Register (which is imminent), and it applies to contracts entered into more than 180 days after that.

Cutting through the hyperbole that the Arbitration Rule protects consumers from “unfairness” that would deny them “their day in court,” this Rule is in fact highly anti-consumer and harmful to innovation.  As Competitive Enterprise Senior Fellow John Berlau put it, in promulgating this Rule, “[t]he CFPB has disregarded vast data showing that arbitration more often compensates consumers for damages faster and grants them larger awards than do class action lawsuits. This regulation could have particularly harmful effects on FinTech innovations, such as peer-to-peer lending.”  Moreover, in a coauthored paper, Professors Jason Johnston of the University of Virginia Law School and Todd Zywicki of the Scalia Law School debunked a CFPB study that sought to justify the agency’s plans to issue the Arbitration Rule.  They concluded:

The CFPB’s [own] findings show that arbitration is relatively fair and successful at resolving a range of disputes between consumers and providers of consumer financial products, and that regulatory efforts to limit the use of arbitration will likely leave consumers worse off . . . .  Moreover, owing to flaws in the report’s design and a lack of information, the report should not be used as the basis for any legislative or regulatory proposal to limit the use of consumer arbitration.    

Unfortunately, the Arbitration Rule is just the latest of many costly regulatory outrages perpetrated by the CFPB, an unaccountable bureaucracy that offends the Constitution’s separation of powers and should be eliminated by Congress, as I explained in a 2016 Heritage Foundation report.

Legislative elimination of an agency, however, takes time.  Fortunately, in the near term, Congress can apply the Congressional Review Act (CRA) to prevent the Arbitration Rule from taking effect, and to block the CFPB from passing rules similar to it in the future.

As Heritage Senior Legal Fellow Paul Larkin has explained:

[The CRA is] Congress’s most recent effort to trim the excesses of the modern administrative state.  The act requires the executive branch to report every “rule” — a term that includes not only the regulations an agency promulgates, but also its interpretations of the agency’s governing laws — to the Senate and House of Representatives so that each chamber can schedule an up-or-down vote on the rule under the statute’s fast-track procedure.  The act was designed to enable Congress expeditiously to overturn agency regulations by avoiding the delays occasioned by the Senate’s filibuster rules and practices while also satisfying the [U.S. Constitution’s] Article I Bicameralism and Presentment requirements, which force the Congress and President to collaborate to enact, revise, or repeal a law.  Under the CRA, a joint resolution of disapproval signed into law by the President invalidates the rule and bars an agency from thereafter adopting any substantially similar rule absent a new act of Congress.

Although the CRA was almost never invoked before 2017, in recent months it has been used extensively as a tool by Congress and the Trump Administration to roll back specific manifestations Obama Administration regulatory overreach (for example, see here and here).

Application of the CRA to expunge the Arbitration Rule (and any future variations on it) would benefit consumers, financial services innovation, and the overall economy.  Senator Tom Cotton has already gotten the ball rolling to repeal that Rule.  Let us hope that Congress follows his lead and acts promptly.

On February 22, 2017, an all-star panel at the Heritage Foundation discussed “Reawakening the Congressional Review Act” – a statute which gives Congress sixty legislative days to disapprove a proposed federal rule (subject to presidential veto), under an expedited review process not subject to Senate filibuster.  Until very recently, the CRA was believed to apply only to very recently promulgated regulations.  Thus, according to conventional wisdom, while the CRA might prove useful in blocking some non-cost-beneficial Obama Administration midnight regulations, it could not be invoked to attack serious regulatory agency overreach dating back many years.

Last week’s panel, however, demonstrated that conventional wisdom is no match for the careful textual analysis of laws – the sort of analysis that too often is given short-shrift by  commentators.  Applying straightforward statutory construction techniques, my Heritage colleague Paul Larkin argued persuasively that the CRA actually reaches back over 20 years to authorize congressional assessment of regulations that were not properly submitted to Congress.  Paul’s short February 15 article on the CRA (reprinted from The Daily Signal), intended for general public consumption, lays it all out, and merits being reproduced in its entirety:

In Washington, there is a saying that regulators never met a rule they didn’t like.  Federal agencies, commonly referred to these days as the “fourth branch of government,” have been binding the hands of the American people for decades with overreaching regulations. 

All the while, Congress sat idly by and let these agencies assume their new legislative role.  What if Congress could not only reverse this trend, but undo years of burdensome regulations dating as far back as the mid-1990s?  It turns out it can, with the Congressional Review Act. 

The Congressional Review Act is Congress’ most recent effort to trim the excesses of the modern administrative state.  Passed into law in 1996, the Congressional Review Act allows Congress to invalidate an agency rule by passing a joint resolution of disapproval, not subject to a Senate filibuster, that the president signs into law. 

Under the Congressional Review Act, Congress is given 60 legislative days to disapprove a rule and receive the president’s signature, after which the rule goes into effect.  But the review act also sets forth a specific procedure for submitting new rules to Congress that executive agencies must carefully follow. 

If they fail to follow these specific steps, Congress can vote to disapprove the rule even if it has long been accepted as part of the Federal Register.  In other words, if the agency failed to follow its obligations under the Congressional Review Act, the 60-day legislative window never officially started, and the rule remains subject to congressional disapproval. 

The legal basis for this becomes clear when we read the text of the Congressional Review Act. 

According to the statute, the period that Congress has to review a rule does not commence until the later of two events: either (1) the date when an agency publishes the rule in the Federal Register, or (2) the date when the agency submits the rule to Congress.

This means that if a currently published rule was never submitted to Congress, then the nonexistent “submission” qualifies as “the later” event, and the rule remains subject to congressional review.

This places dozens of rules going back to 1996 in the congressional crosshairs.

The definition of “rule” under the Congressional Review Act is quite broad—it includes not only the “junior varsity” statutes that an agency can adopt as regulations, but also the agency’s interpretations of those laws. This is vital because federal agencies often use a wide range of documents to strong-arm regulated parties.

The review act reaches regulations, guidance documents, “Dear Colleague” letters, and anything similar.

The Congressional Review Act is especially powerful because once Congress passes a joint resolution of disapproval and the president signs it into law, the rule is nullified and the agency cannot adopt a “substantially similar” rule absent an intervening act of Congress.

This binds the hands of federal agencies to find backdoor ways of re-imposing the same regulations.

The Congressional Review Act gives Congress ample room to void rules that it finds are mistaken.  Congress may find it to be an indispensable tool in its efforts to rein in government overreach.

Now that Congress has a president who is favorable to deregulation, lawmakers should seize this opportunity to find some of the most egregious regulations going back to 1996 that, under the Congressional Review Act, still remain subject to congressional disapproval.

In the coming days, my colleagues will provide some specific regulations that Congress should target.

For a more fulsome exposition of the CRA’s coverage, see Paul’s February 8 Heritage Foundation Legal Memorandum, “The Reach of the Congressional Review Act.”  Hopefully, Congress and the Trump Administration will take advantage of this newly-discovered legal weapon as they explore the most efficacious means to reduce the daunting economic burden of federal overregulation (for a subject matter-specific exploration of the nature and size of that burden, see the most recent Heritage Foundation “Red Tape Rising” report, here).