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The ink was barely dry on the Federal Communications Commission’s (FCC) Restoring Internet Freedom Order before Sen. Ed Markey (D-MA) brought legislation to overturn it. His chosen weapon was the Congressional Review Act, an important and criminally underused tool for Congress to oversee agency activities. It was a move that many including me predicted would happen in the wake of the order’s adoption.
Since then, Senator Markey’s crusade has picked up steam, securing the 30 votes necessary to force a floor vote on January 8 and picking up its first Republican supporter, fellow New Englander Sen. Susan Collins (R-ME), eight days later. With the resolution now one vote shy of a Senate majority, it’s worth stepping back to explain the Congressional Review Act and handicap the odds that the resolution will restore the Obama FCC’s net neutrality rules.
The Congressional Review Act explained
The Congressional Review Act is a potentially powerful method for Congress to oversee its delegation of rulemaking authority to federal agencies. It was enacted as part of then-Speaker Newt Gingrich’s Contract with America Advancement Act in March 1996. The Act was partly a response to INS v. Chadha, a 1983 Supreme Court decision that invalidated the legislative veto (a process by which the House or Senate might unilaterally override agency action) as unconstitutional.
The Act requires agencies to report to both chambers of Congress and the Comptroller General of the United States any “major rule,” defined as one having an annual effect on the economy of at least $100 million. Congress then has 60 legislative days to pass a joint resolution of disapproval before the rule can take effect. If such a resolution passes both houses and is signed by the president, or if two thirds of each house overrides a presidential veto, the rule is repealed and the agency is prohibited from reissuing the rule or a new rule “substantially the same” as the repealed rule.
The Congressional Review Act is potentially a powerful tool by which Congress can oversee agencies and rein in runaway exercises of power. Of course Congress can always amend an agency’s organic statute to accomplish the same end, clarifying that an agency’s grant of authority does not include the power to enact a particular rule. (In the 1970s, Congress famously exercised this power to block an agency rule that would have mandated seatbelt use by requiring auto manufacturers to prevent ignition or emit a continuous buzzer if the seatbelt was not in use.) But the Congressional Review Act is preferable because it contains streamlined parliamentary rules designed to limit opportunities for procedural obfuscation. It also limits judicial review of the repeal decision.
Despite this potential attractiveness, Congress has rarely used the Act to strike down agency rules. Prior to 2017, Congress had successfully deployed the CRA only once: to reject a midnight regulation by the outgoing Clinton Administration that would have set workplace ergonomics standards. But last year, Congress successfully used the Act to repeal 15 major rules, all but one of which were products of the outgoing Obama Administration — including the FCC’s Privacy Rule, an effort we covered here at AEI.
Senator Markey’s net neutrality joint resolution
Consistent with the Congressional Review Act, Sen. Markey’s proposed joint resolution is simple and straightforward: It states simply that Congress disapproves of the Restoring Internet Freedom Order and that the rule shall have no force or effect. If successful, it will nullify the Commission’s order and would de facto reinstate the 2015 Open Internet Order. Moreover, the resolution would prohibit the FCC from enacting a rule “substantially the same” as the repealed rule. The scope of this restriction is unclear, but proponents would argue it would preclude the Commission from repealing the classification of broadband service as a Title II telecommunications Service.
But Markey’s effort will not be successful, for the same reason that the CRA is rarely used to rein in the administrative state. Markey still needs to find one more vote for passage. Although the Act provides that CRA resolutions shall be placed on the calendar once 30 supporters request it, it’s unclear (to me, at least) how much the Senate leadership could postpone a vote until the 60-day clock runs out. Even if the Senate votes and passes the resolution, there appears to be little indication that the House would follow suit. And, of course, although the FCC is an independent agency, President Trump is likely to veto any effort to undo such a deregulatory order — which explains why past CRA resolutions have succeeded only during periods of presidential transition, as a way for the incoming administration to repudiate midnight regulations of its predecessor.
Sen. Markey likely knows this. The purpose of the joint resolution is not legal but political: It keeps the net neutrality issue in the news going into the midterm elections later this year and might force sitting senators to take a formal stand on the issue. The academic in me also admires congressional efforts to hold agencies accountable. In that sense, the resolution may send a signal to the FCC, just like a committee oversight hearing might: It may not be legally significant but reminds the agency that Congress is watching its actions. Of course, to the extent that the effort is unsuccessful, it may send a different signal, that Congress tacitly approves the order or at least is not willing to expend political capital to combat it.
Senator Markey is right that Congress is the proper forum to resolve the question of what jurisdiction, if any, the Commission should exercise over broadband providers and other actors in the internet ecosystem. But that process must be both comprehensive and bipartisan and requires greater flexibility than the binary choice offered by this CRA resolution.
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