Media outlets in Washington, D.C. are reporting that Democrats in the Senate can force up to 10 hours of debate on each Congressional Review Act (CRA) resolution to undo last minute Obama regulations. That is incorrect, and the misconception is driving a false narrative that there is limited opportunity to use the CRA. According to the text of the law, senators opposing a CRA resolution get at most five hours of debate. Those in favor of the resolution can limit that time even further by calling for a simple majority vote, and the minority would be unable to prevent that vote.
Enacted in 1996 and signed into law by President Bill Clinton, the CRA provides an expedited process for Congress to reverse regulations rushed through at the end of a presidential term. Today, Republicans who hold the majority in both the House and Senate are working to undo numerous regulations issued at the end of the Obama Administration.
The CRA had been used on only one occasion prior to this session of Congress, so there is significant confusion about how the process works. Since the election last November, several media outlets have published articles that incorrectly state that each CRA resolution requires 10 hours of debate.
The 10-hour timeframe is the maximum time allotted for debate, with each side provided up to five hours to use at their discretion. So the minority can only hold the floor for a maximum of 5 hours, not 10 as reported in these articles. Furthermore, what these examples fail to point out is that the law gives a majority of the Senate broad discretion to limit debate further, if they so choose. According to the text:
In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution is not in order. 5 U.S. Code § 802(d)(2) [Emphasis added]
According to the law, the majority could consider any number of resolutions in a given day, as they are not actually required to spend a minimum amount of time on them. A senator can move to consider a resolution, and following the simple majority vote in favor of the motion, immediately move to vote on adoption of the resolution. Full consideration could be completed, from start to finish, in well under an hour, and at no point could the minority object. While the majority could choose to grant the minority their full five hours to speak, there is nothing in the law that requires them to do so.
In another section of the law, the authors made clear that expeditious consideration of a CRA resolution is absolutely envisioned: “All points of order against the joint resolution (and against consideration of the joint resolution) are waived.” 5 U.S. Code § 802(d)(1). In other words, a simple majority of the Senate can move to approve a CRA resolution with no objections allowed, no delays possible, and without any debate. That idea diverges so far from standard Senate procedure, which requires lengthy debate and offers many opportunities to obstruct a simple majority, that it is absolutely clear what the authors intended.
The Congressional Research Service supports this interpretation of the law:
Senate debate on the resolution is limited to 10 hours, equally divided between supporters and opponents, so that no filibuster is possible on the resolution itself. In addition, the Act provides that a motion may be offered to limit the time for debate further, and this motion itself is not debatable. Any appeal from a ruling of the chair during consideration of a disapproval resolution (or motion to proceed to its consideration) also is to be decided without debate. This prohibition further inhibits any potential use of appeals for dilatory purposes, though this use is already constrained by the overall cap on debate time.”
A simple majority in the Senate has authority to use the CRA expansively, and there is nothing the minority can do to stop them.
Tripp Parks is the manager of government affairs for Western Energy Alliance. The Alliance represents the Western oil and natural gas industry and is a supporter of Western Wire.
