The Democrats in the Senate have a handy excuse for why they are not passing bills that would benefit regular people but are opposed by their corporate donors: their hands are tied, they say, because Republicans will threaten an insurmountable filibuster and with conservatives in their caucus like Joe Manchin and Kyrsten Sinema they don’t have enough votes to change the filibuster rules.
But even when they have chances to pass popular Democratic bills without getting filibustered, they don’t even try.
According to the firm Pillsbury Law, May 27 was the last day that Senate Democrats could have used Congressional Review Act (CRA) “fast track” rules to overturn last-minute Trump administration rules by passing resolutions of disapproval, which can’t be filibustered. Rather than using that power to the fullest, Senate Democrats passed just three resolutions of disapproval within the 60-day window and let another three that had been proposed by their members effectively die as the deadline passed.
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The Trump rules that Democrats could have unilaterally overturned but chose not to include:
- the ability for federally-funded social services programs to discriminate against people based on sexual orientation or gender identity;
- authority for Social Security Administration to put their own attorneys in charge of appeals proceedings regarding rejections of benefits;
- a measure making it more difficult for investors to submit shareholder resolutions to hold companies accountable on issues like climate change.
When Trump took office in 2017, congressional Republicans passed 14 Congressional Review Act resolutions to gut Obama administration rules. The Republicans used it to weaken privacy protections for broadband customers, repeal a requirement that publicly traded companies disclose payments by resource extraction issuers, eliminate limits on states’ authority to drug test unemployment benefit applicants, and much more.
GW Regulatory Studies Center senior policy analyst Daniel Pérez analyzed proposed resolutions of disapproval and found that Democrats have been far less inclined to pursue using the CRA powers than Republicans. Democrats introduced just 27% of all disapproval resolutions over that period, Pérez found.
So why have Democrats been so shy about using the CRA? One reason they’ve given is that passing a CRA resolution bars the agency that issued the targeted rule from issuing new rules that are “substantially the same.” Some Democrats are concerned that this vague restriction on future regulations could hamstring agencies on regulations they would support, according to Politico.
“That legal argument is bogus,” said Jeff Hauser, director of the Revolving Door Project. “Using the CRA would not preempt further efforts to regulate protectively and in accord with the missions each law grants the Department or Agency. Undoing a deregulation doesn’t preclude future affirmative regulation.
“I think floor time is scarce is a partial explanation, since recess seems sacrosanct to them,” said Hauser.