Liberals who oppose repealing the midnight regulations of the last president have a big problem. Liberals actually love that idea – or at least they used to.

Former U.S. Senate Majority Leader Harry Reid (D) discussed the conundrum facing liberals in his farewell speech late last year. Reid was one of the authors of the Congressional Review Act (CRA), a 1996 law that allows the legislative branch to nullify regulations issued by executive branch departments and agencies, especially those issued in the final months of a president’s term in office.

“I know some of my Democratic colleagues say: Why in the hell—why did you do that?” Reid said. “The worm turns … [and] we knew that administrations would change and it would affect every president, Democrat and Republican.”

The idea is simple, according to Reid, who was one of the Obama administration’s closest allies on Capitol Hill. When a regulation is finalized, “Congress has a chance to look it over to see if it is too burdensome, too costly, too unfair,” he said. “That was legislation that I did, and it was great when we had Republican presidents, not so great when we had Democratic presidents,” Reid said to laughter in the Senate chamber. “But it was fair,” he said.


Reid’s consistency stands in stark contrast to other liberals, who supported using the CRA eight years ago to unwind the regulations of President George W. Bush, but now seek to discredit the very same law. The New York Times, for example, urged Congress and the Obama administration in early 2009 to use the CRA in an editorial headlined “Undoing the Damage Done.” Today, however, the Times editorial board calls the CRA a “legislative cudgel” that shouldn’t be used to wipe out regulations “which went through a long, public process on the way to being issued.” The more recent editorial is even headlined “When the Rules No Longer Apply.”

The Times is far from alone, however. Environmental activist groups are working overtime to delegitimize the use of the CRA. Today, Earthjustice calls the CRA “an undemocratic and rarely used backdoor tactic” and the Sierra Club says the same law is “a blunt instrument with dangerous consequences.” These groups must have a very low opinion of lawmakers and the reporters who cover Congress, because stories by the Christian Science Monitor and the Associated Press show the same groups were cheerleading the use of the CRA when the Obama administration was about to take office a little more than eight years ago.

The AP story, headlined “Congress has fast-track power to kill Bush rules,” even has a spokesman for Ed Markey (D), the former Democratic Congressman who now represents Massachusetts in the U.S. Senate, touting the authority given to lawmakers under the CRA. “There’s both the political will and now the mechanism to assist an incoming administration and expedite the reversal of some of these rules,” said Markey’s spokesman Eben Burnham-Snyder, who later became director of public affairs of the U.S. Department of Energy under Obama.


Back then, liberals gleefully embraced the CRA. “An obscure little law could make it easy for Democrats to undo any last-minute Bush regulations enacted any time in the last six months of his presidency,” Keith Olbermann, the former host of MSNBC’s Countdown program, said in late 2008. Olbermann even brought in Georgetown University constitutional law professor Jonathan Turley to explain the good news to his viewers.

“What is this law that the Obama people think that they have found? What exactly is this promise of blessed relief?” Olbermann asked.

“Well, this is the Congressional Review Act of 1996,” replied Turley, which “is designed to prevent presidents in the final hours of their administration of creating this dead hand control.”


Another MSNBC host, Rachel Maddow, even mocked the Bush administration for failing to account for the CRA. “The hilarious incompetence here is that the White House either forgot or they just didn’t know about something called the Congressional Review Act,” Maddow said in November 2008 after the election.

“Some of the regulations the Bush team thought they were slipping through, it turns out they can easily be reversed,” Maddow said. “Their efforts to impose their will on the country and the next administration may be thwarted.”

Go back to the 1990s and things get even worse for the groups trying to delegitimize the CRA. After passing the Senate 100-0 in 1995, the CRA was later wrapped into a larger bill, the Small Business Regulatory Enforcement Fairness Act. “I am very pleased that the congressional veto legislation … passed by the Senate last year has been added,” U.S. Sen. Tom Daschle (D-S.D.) said in March 1996 before a final vote on the measure. The CRA allows lawmakers to review major regulations before they become permanent, “thereby ensuring that the agencies developing these rules adhere to the intent of Congress and develop reasonable requirements for American business,” said Daschle, who later served as Senate majority leader himself.

The late John Glenn, a Democratic U.S. Senator from Ohio, was another big supporter of the CRA. “Congressional Review will create more work for us, but its expedited legislative veto process will ensure congressional accountability for federal agency rules,” Glenn said during the 1996 Senate floor debate. “I believe we need this process so that we can do our part for regulatory reform.”

The late Frank Lautenberg, a Democratic U.S. Senator from New Jersey, was also a strong supporter of the small business legislation that included the CRA. “America’s small businesses badly need relief from excessive and unnecessary regulations,” Lautenberg said on the Senate floor. He also noted the measure was “truly a bipartisan bill.”

The bill was signed into law by President Bill Clinton (D) in late March 1996. A few weeks later, Reid and his co-authors produced a report on the CRA that makes for interesting reading today. “As more and more of Congress’ legislative functions have been delegated to federal regulatory agencies, many have complained that Congress has effectively abdicated its constitutional role as the national legislature in allowing federal agencies so much latitude,” the report stated. “In many cases, this criticism is well founded.”

For their part, officials in the Clinton administration were also proud of the CRA. In a December 1996 report titled “More Benefits Fewer Burdens,” the Clinton administration said the CRA was part of a broader effort “to create a regulatory system that works for, not against, the American people.” The Clinton officials saw the CRA as “enhancing Congress’ accountability for the regulatory system.”

The record couldn’t be clearer. The CRA, which allows the midnight regulations of an outgoing president to be swiftly repealed, was created by Democrats as well as Republicans – and liberals thought it was a great idea. The campaign to delegitimize the use of the CRA just isn’t serious and therefore shouldn’t be taken seriously by elected officials or the reporters who cover them.

Simon Lomax is the managing editor of Western Wire. A former wire-service and trade-press reporter, he now works in Denver as an adviser to pro-energy and free market groups.