In the nearly two months since the November midterms, the conventional wisdom has centered on the idea that President Obama’s agenda will be largely protected from an influx of Republicans by the Senate’s arcane rules and his own veto pen. With 47 members in the 112th Congress, the GOP will lack a majority, let alone a supermajority, to pass the legislation they’d need to pass to undo Obama’s accomplishments and blunt his progress — as if he’d sign those bills anyway.
But Republicans are all too aware of this conundrum, and have been looking for ways around it. What they found is an obscure authority provided by a 1996 law called the Congressional Review Act. It provides Congress with an expedited process by which to evaluate executive branch regulations, and then give the President a chance to agree or disagree.
House Republicans will have carte blanche next year, and will be able to pass as many of these “resolutions of disapproval” as they want. The key is that a small minority in the Senate can force votes on them as well, and they require only simple-majority support to pass. If they can find four conservative Democrats to vote with them on these resolutions, they can force Obama to serially veto politically potent measures to block unpopular regulations, and create a chilling effect on the federal agencies charged with writing them.
“I think that’s one of many tactics that will be used,” Sen. Lindsey Graham (R-SC) told me in an interview on the last day of the 111th Congress.
“We’ve got several bills — I’ve got one the REINS Act, which would force any regulation that costs over $100 million to come back to Congress for approval,” Sen. Jim DeMint (R-SC) told me Wednesday. “There’s several other things. We’re looking at ways to do that, either through oversight, but it’s clearly out of control and I think what the FCC’s done has gotten everyone alarmed that they’re ignoring the courts and the Congress there in the administration.”
Earlier this year, Republican leaders endorsed REINS (Regulations from the Executive In Need of Scrutiny) which, if passed and signed, would give them much broader authority over the rule-making and regulatory process.
But it won’t survive a filibuster, let alone a veto. The CRA will be the GOP’s most effective tool.
“They’re pushing through a lot of bad policy at the executive level,” DeMint said. “We need to figure out how to rein it in.”
Democrats aren’t terribly worried. But they’re definitely annoyed. In an interview Wednesday, Rep. Henry Waxman (D-CA) — outgoing chair of the Energy and Commerce Committee — laid it out.
They can pass legislation, presumably through the House where they have a strong majority, but I can’t see them getting 60 votes [in the Senate] on a lot of what they say they want to do. They can attach amendments to the appropriations bills, but I don’t see how that would be successful because the President can refuse to sign it, the Senate refuse to pass it. They could use the … Review Act. Force votes. If they got a majority, the President could veto it.
“I think what they’re going to do is try to keep on dramatizing the issues that they think are helpful to them,” Waxman said. “The next two years I expect all their actions to be campaign oriented…. They’re all about messaging, they’re all about power, they’re all about politics. What they don’t seem to be concerned about is governing.”
There’s a lot to that critique. But it won’t deter the GOP.
“We need to make sure Americans know what’s going on,” DeMint said.
Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight, and the debt limit fight. He can be reached at email@example.com.