Trump’s Secret Weapon Against Obama’s Legacy

On February 28, President Donald Trump signed three bills into law. He held an Oval Office ceremony to spotlight two of them, H.R. 321 and H.R. 255, both of them feel-good symbolic resolutions declaring the importance of women in science and engineering. “Fantastic. This is so important,” Trump declared. Substantively, that wasn’t true—neither bill had any effect on policy—but politically, the president clearly welcomed the inevitable media images of him signing laws about women in front of a group of women, including the first lady and his daughter Ivanka. He seemed especially tickled that one resolution specifically encouraged the promotion of women at NASA.

“Great news. Really the way to go,” Trump said. “Very heavy into the whole NASA situation.”

The third bill that Trump signed that day, H.J.Res. 40, had more policy significance; it struck down one of President Barack Obama’s regulations and kept one of Trump’s campaign promises. But Trump did not let the media film him signing that one. That’s because the substantive impact of that bill was to make it much easier for severely mentally ill Americans to buy guns, a priority for the National Rifle Association but not for the public. Trump and his fellow Republicans were happy to use an obscure rule-killing mechanism called the Congressional Review Act to undo a popular gun safety regulation that Obama had first proposed after the Sandy Hook massacre, but they didn’t want to call attention to it.

The Congressional Review Act, a 21-year-old law that created a fast track for wiping out “midnight rules” finalized late in a presidential administration, had only been used once before this year. But Trump and the Republican-controlled Congress have already deployed it 11 times to strike down Obama-era regulations. In fact, those 11 CRA resolutions are the only substantive bills Trump has signed so far; it’s quite possible that the CRA will produce the entire legislative legacy of his first 100 days. And just about all the resolutions Trump has approved—as well as two others that await his signature—represent victories for traditional Republican lobbying interests like the NRA, the U.S. Chamber of Commerce and fossil-fuel industries, muscled through Congress on strict party-line votes. None of them evoke the drain-the-swamp anti-establishment populism that Trump rode to the presidency, which may help explain why he’s been so uncharacteristically quiet about them.

The highest-profile CRA bill so far gave internet service providers permission to track and sell their customers’ data without permission; a YouGov poll found 74 percent of the public wanted Trump to veto it, while 11 percent thought he should sign it, but he signed it without fanfare last Monday night. The same evening, he quietly struck down one Obama rule requiring employers in hazardous industries to keep better records of on-the-job injuries, and another preventing the killing of bear cubs in their dens and other extreme hunting practices in federally protected wildlife refuges in Alaska. Trump’s very first CRA bill was an anti-anti-corruption measure, blocking an Obama effort to force oil companies to disclose payments to foreign governments; Secretary of State Rex Tillerson had personally lobbied against the rule as CEO of ExxonMobil, telling lawmakers that undisclosed payments were vital to Exxon’s business in Russia.

Every regulation creates at least some cost and hassle for the interests being regulated, and Republicans have argued that the regulatory state spiraled out of control in the Obama era, strangling businesses in red tape. But even defenders of the CRA crusade acknowledge that these specific bills have the potential to create awkward political optics, making Trump and GOP lawmakers look like they oppose internet privacy and baby bears while supporting dangerous workplaces, overseas bribery, and the right of unhinged Americans to purchase firearms. Most of the regulations Trump has killed were uncontroversial with the public but bitterly opposed by corporate interests—including one barring firms with extensive labor violations from getting federal contracts, another preventing low-quality teacher education programs from getting federal aid, and another restricting coal mining operations from burying streams. The case for many of them boils down to the notion that federal bureaucrats should stop micromanaging job creators, that even innocuous-sounding rules can bury businesses in paperwork and hold back economic growth.

“These regulations often sound like they’re protecting mom and apple pie,” says Neil Bradley, the chief policy officer for the U.S. Chamber of Commerce. “But members of Congress understand that they can be burdensome or duplicative or have other detrimental effects.”

Under the CRA, Republicans have until early May to eliminate Obama rules finalized after last June—and they only need simple majorities in both houses of Congress, since CRA bills can’t be filibustered. So far, that’s been a relatively easy lift. A few Senate Republican defectors have stalled one CRA bill that would undo Obama’s restrictions on methane waste from petroleum drilling, and another that would make it harder for states to create auto-enrollment savings plans for workers whose employers don’t offer 401(k)s. And two GOP senators did join all 48 Democrats in voting against a CRA resolution allowing states to withhold federal family planning dollars from abortion providers like Planned Parenthood. But Republican Johnny Isakson of Georgia, who had been convalescing after back surgery, hobbled to the floor with a walker to cast the 50th vote against Planned Parenthood, and Vice President Mike Pence came to Capitol Hill to break the tie and pass the bill.

Otherwise, the prospect of erasing rules with Obama’s name on them has inspired almost perfect unity among fractious Washington Republicans who have been unable to get almost anything else done. In a press briefing Wednesday, White House legislative director Marc Short called the 11 scuttled rules “a huge accomplishment,” proving Trump’s commitment to roll back onerous regulations holding back American businesses. He did not say much about any of the individual rules—“I confess that any one of these is not going to drive a news story,” he said—but he urged reporters to cover the general use of the CRA to slash red tape.

“This is an important story that has not been told,” Short said.

But for the most part, Republicans haven’t seemed too eager to tell the details of that story. Trump held a public ceremony to celebrate his first CRA bill, the one rescinding the disclosure rule for oil companies, but after he was ridiculed for his hyperbole about how the arcane anti-transparency measure would bring back “lots of energy jobs,” he’s mostly signed the bills behind closed doors, or else focused his remarks on the general evils of Obama’s overregulation. Congressional Republicans have also tried to avoid getting roped into public debates about details. For example, 24 Democratic senators spoke against the Planned Parenthood bill on the floor, while only two Republicans defended it before the vote.

In fact, Democrats have been almost as unified in opposition to almost all the CRA bills. They see the donor-driven Republican push to strike down innocuous-sounding health, safety and environmental protections as bad policy and hideous politics; they’re already fundraising off the internet privacy and Planned Parenthood resolutions. Even though most of the CRA votes have been drowned out by Trump-era noise, Democrats believe they’re putting Republicans on record in favor of cartoonishly hard-to-defend causes. One said they remind her of Dr. Claw, Inspector Gadget’s villainous nemesis, while another cited Dr. Evil.

Senate Majority Leader Chuck Schumer said in a statement that Trump set the tone for his presidency when he signed that first CRA bill to help oil companies conceal their foreign payments, contradicting his promises to take on the Washington establishment. “Time and time again, Republicans have abused the Congressional Review Act to appease the extreme right wing of their party and ensure giveaways to corporate special interests,” Schumer said.

Trump’s ardent supporters and detractors alike tend to exaggerate the impact of the 13 rules he’s rescinding, out of more than 20,000 approved under President Obama. The Obama administration completed its most important rules well before the Congressional Review Act deadline, so it will be much harder and take much longer to kill or even revise transformative policies like the Clean Power Plan regulating carbon in the electricity sector, the overtime rule ensuring time-and-a-half for millions of moderate-income workers, or the fiduciary rule forcing financial advisers to serve the best interests of their clients.

The White House says the rules Trump is wiping off the books would have cost businesses $10 billion over the next two decades, bust most of them had not even gone into effect yet; by getting rid of most of them Trump is simply preserving the status quo. The restrictions on gun sales to the mentally ill would not have gone live until this December. The internet privacy rule had not made its debut, either, and while there’s understandable outrage about Republicans making sure cable companies and telecoms can sell customer data, they’ve always been allowed to sell that data, and they haven’t done it in the past.

Still, while the CRA bills won’t radically disrupt public policy, they’re at least substantive, unlike the handful of other bills Trump has signed into law. His most notable non-CRA legislative achievement last week was naming a clinic in Pago Pago after Faleomavaega Eni Fa’aua’a Hunkin. And even though the CRA battles will never get as much attention as higher-stakes fights, they do help illuminate the Trump-era Republican Party, and perhaps foreshadow some of the fights to come.

***

America’s regulatory process is an unwieldy bureaucratic maze that can take years to produce a rule. The CRA is a powerful shortcut for undoing all that work. A business-friendly new Republican majority on Capitol Hill passed it in 1996, seeing it as a shortcut to reverse burdensome rules that presidents sometimes enact on their way out the door. But even after President George W. Bush took office, Republicans only used it to strike down one Clinton dministration regulation. That was partly because Bush was pursuing more important legislative priorities early in his presidency: a massive tax cut and his No Child Left Behind education bill. But it was partly because the CRA is an unusually blunt instrument. It forbids the executive branch from crafting a “substantially similar” replacement rule, a standard that has never been litigated but some experts believe would apply to any rule on the same topic. “It’s a sledgehammer,” says Susan Dudley, a top regulatory official in the Bush administration.

It’s easy to see why from the history of the one rule Bush did rescind, a Labor Department ergonomics rule that businesses despised. At the time, repetitive-motion injuries and other musculoskeletal problems made up about one third of all workplace injuries, and President George W. Bush’s labor secretary, Elaine Chao—now Trump’s transportation secretary—said she’d study the problem with an eye to proposing a better rule. But that never happened. And the Obama administration never resurrected the rule, either. In fact, when Obama’s Labor Department gingerly proposed to push employers just to keep track of musculoskeletal injuries, there was an outcry on K Street, and Republicans inserted a rider into a budget bill blocking the effort. Today, they’re still unregulated, and still about one third of all on-the-job injuries.

The Democrats never used the CRA when they controlled Washington in 2009 and 2010; they figured the Obama administration could just re-regulate any Bush-era rule it found inadequate. But 2016 produced a perfect CRA storm: a new president who routinely bashed Obama’s rules as an economic nightmare, a GOP Congress eager to throw out as many as possible, and a surprisingly empty congressional calendar, thanks to Trump’s historically slow pace of nominations and practically nonexistent legislative agenda. GOP Senate leaders initially assumed they’d spend most of March approving nominees and repealing Obamacare, but even though each CRA bill eats up at least five hours of floor time, they had time to plow through 10 of them. In a hyper-partisan climate where they couldn’t round up 60 votes for a lunch break, they loved the idea of the CRA’s 51-vote threshold.

“I predicted they might use it as many as five times,” says Dudley, who now runs George Washington University’s Regulatory Studies Center. “I should have said five times in the first week! Some of these rules just weren’t on my radar.”

Most of them were on the business community’s radar. After Trump’s election, deep-pocketed Republican-leaning groups like the Chamber and the National Association of Manufacturers pursued a longer-game strategy to roll back the Clean Power Plan and other major Obama-era rules, as well as revamp the regulatory process to make it harder to produce similar rules in the future. But they were also delighted for the chance to rack up quick kills of less prominent regulations that came down late enough to be vulnerable to the CRA, like the Labor Department’s Fair Pay and Safe Workplaces rule—or, as industry dubbed it, the “blacklisting rule,” because it denied federal contracts to firms that government bureaucrats deemed out of compliance with employment laws.

Labor leaders and liberal activists argued that it made no sense for federal agency to do business with firms that routinely exposed their workers to unsafe conditions or stole their wages. They urged more moderate Republicans to side with workers rather than corporate recidivists like Tyson Foods or DuPont; they told Senator Susan Collins that responsibly managed Maine shipyards were losing contracts to southern shipbuilders who cut corners to cut costs. But neither Collins nor any of her Republican colleagues voted to save the rule, and it went down 49-48. The public may not have noticed, but the interest groups did.

“The Chamber wanted it, so the Republicans gave it to them,” says National Employment Law Project senior fellow Debbie Berkowitz, who helped enact the rule at the Occupational Safety and Health Administration under Obama. “It’s got nothing to do with facts; they just march in lockstep with industry.”

Industry lobbyists argue that Fair Pay and Safe Workplaces would have violated the due process of contractors who would be presumed guilty based on unproven allegations. The larger point, they say, is that many regulations that seem unobjectionable are more complicated than they sound. Another example they cite is the OSHA rule that required businesses to maintain accurate records of on-the-job injuries for five years rather than just six months. The agency relies on those records to identify problem firms, since it doesn’t have nearly enough staff to conduct routine site visits, and it relies on the threat of fines to ensure the records are accurate. But the business groups complain that OSHA often uses niggling recordkeeping violations to bust firms when it lacks evidence of actual safety violations—and in any case, the Chamber’s Neil Bradley points out that according to a 2012 court ruling, OSHA’s original law only authorized a six-month lookback.

“You can argue that it should be longer or shorter, but that’s what the law said, and the agency tried to find a way around it,” Bradley says. “The business community is really concerned about regulators usurping the role of legislators.”

Nobody likes red tape, and Trump has a way of making regulators sound like omnipotent tyrants hurling mandates like lightning bolts. The reality of regulation tends to involve much more deliberation, compromise and time. In fact, some of the Obama rules targeted under the CRA were completed so late in the administration because the regulated interests had objected to earlier drafts, and the agencies had gone back to the drawing board to try to reach a consensus. For example, the administration’s “teacher prep” rule was delayed after an outcry over the first proposal, which required states to use student test scores to help evaluate whether teacher education programs were producing results. The Department of Education watered down the final version so that states could judge the programs almost any way they wanted, but higher education lobbying groups still weren’t happy until the Republicans killed the rule.

Obama’s education officials took a similar approach with an “accountability rule” implementing the Every Student Succeeds Act, the bipartisan school funding law that replaced No Child Left Behind in 2015. Again, an initial draft with directives tying federal aid to measurable progress in educating underserved populations was attacked as too prescriptive. This time, the final version was not only much more flexible but much better-liked. “It’s clear the department listened carefully to the overwhelming feedback it received,” the School Superintendents Association said at the time. Even the Chamber of Commerce supported it. But the Republicans used the CRA to kill it anyway, with Rob Portman of Ohio the only GOP senator to vote no. And the superintendents put out a statement supporting the repeal of the rule they had endorsed just three months earlier, complaining that it “constructed unnecessary barriers to state and local leadership.”

“The groups loved how deferential the rule was, but they’d rather have no accountability at all,” says one Democratic education aide. “And the Republicans were just like: It was an Obama thing, he’s the anti-Christ, screw the substance.”

Republicans certainly do enjoy undoing policies with Obama’s name on them; House Speaker Paul Ryan has called the CRA “the quickest, most surefire way to undo President Obama’s liberal, jobs-crushing legacy.” The most flagrant example of a CRA vote driven by anti-Obama fervor was therepeal of a rule allowing states to drug-test applicants for unemployment benefits if they had worked in certain industries. Republicans thought the rule was way too soft; they wanted applicants from more industries to be subject to testing. But instead of asking Trump to broaden the rule, they used the CRA to erase it. The problem is, it’s now unclear whether states have the authority to drug-test applicants from any industries until there’s a new rule. It’s also unclear whether the CRA’s language allows the Trump administration to craft a new rule. In their eagerness to score political points, Republicans may have undermined their own policy objectives.

For the most part, though, Republicans won’t score many political points with their CRA victories. There’s not a broad constituency for letting businesses throw out their records of on-the-job injuries, letting broadband providers sell personal data, or preventing cities from setting up savings plans for their residents. But interest groups tend to pay closer attention to arcane rules than the public does, and politicians tend to pay close attention to interest groups. A January report by Public Citizen found that industries and associations pushing CRA bills spent more than $800 million lobbying Congress last year, plus more than $500 million on donations to members of Congress, three quarters of that for Republicans. There’s an unmistakable sense that GOP lawmakers and business groups are on the same team; the Chamber may have disagreed with Republican leaders on that one CRA resolution on educational accountability, but it didn’t list it as a “key vote” on its legislative scorecard, while it did list all the CRA bills it supported.

The push to protect gun sales to the mentally ill is a classic example of Republicans willing to take unpopular measures for interest groups like the NRA. The rule seemed like a fairly mild response to the horrors at Sandy Hook, especially since many Republicans who helped block Obama’s broader push for gun control legislation argued that the problem was not guns but crazy people with guns. The rule merely allowed the Social Security Administration to forward names of Americans who get disability checks for severe mental illness to the FBI’s database for background checks—and only if they had already been deemed incapable of managing their own affairs. Federal law already prohibited gun sales to the mentally “defective,” so the rule simply aimed to make that prohibition enforceable.

Still, no Senate Republicans opposed repeal of that rule; they said it would end up preventing many non-dangerous Americans from exercising their Second Amendment rights, even though it included a mechanism for individuals to appeal. They also unanimously passed another NRA-backed repeal of an Obama rule preventing the state of Alaska from extending its “predator control” policies—which allow hunters to track bears and wolves with airplanes, slaughter them in dens, and lure them with bait—to wildlife refuges controlled by the U.S. Fish and Wildlife Service. Wayne Pacelle, the president of the Humane Society, made the case to lawmakers that those hunting practices were “barbaric,” and that letting the state call the shots in federal wildlife refuges amounted to a “putsch.” Wildlife advocates tried to rally the public with adorable photos of bear cubs and horror stories about charismatic megafauna getting strafed with automatic weapons. But the public didn’t seem to notice.

“The drama in the White House sucked up all the oxygen in the press room,” Pacelle says. “This should be a national embarrassment, but it got no attention.”

After the slapstick demise of the House Republican bill to repeal Obamacare, there was a lot of surprise that GOP leaders would push so hard for legislation with support from only 17 percent of the public. The CRA bills are evidence that they’re already doing that on a regular basis—just not usually in the public spotlight. So far, Trump seems willing to sign whatever they send to his desk, and CRA resolutions have been the only substantive bills they’ve managed to send to his desk.

***

It’s hard to imagine the CRA getting another workout like this until another new president takes over from a predecessor of the other party, with his own party controlling both houses of Congress. “This changeover is really a unique situation,” says Rosario Palmieri, a vice president at the National Association of Manufacturers. For the rest of the Trump administration, and for the foreseeable future, the main tools for changing or killing rules will be the courts and the rulemaking process.

Some progressive activists see this deregulatory mini-flurry as Exhibit A in the case for abolishing the CRA, a product of the 1990s Republican congressional revival that they see as an inevitable thorn in health and environmental protection.

“The CRA is like a special-interest wet dream,” says Amit Narang, a regulatory policy advocate at Public Citizen.

But regulatory experts like Dudley, the former aide to Bush, and New York Law School professor David Schoenbrod, a former aide to Democratic senator Hubert Humphrey, point out that whatever its faults, the CRA provides a venue for members of Congress who often gripe about rules to put their votes where their mouths are. Lawmakers like to take credit for laws and blame regulators for rules authorized by those laws; in 2017, they’ve finally weighed in on 13 of those rules.

“This is a rather singular moment where they at least have the option of taking responsibility,” Schoenbrod says. “That’s very unusual in Congress.”

Trump talks a lot about the stultifying burden of regulations in America, how they make it impossible for companies to do business, how three quarters of them don’t do anything for anyone. But he tends to talk about them in general terms. The CRA resolutions have put him and his party on record regarding specifics. They’ve taken the side of internet providers over internet users, coal companies over streams, oil companies over transparency, employers (including employers with bad labor records) over workers and hunters in airplanes over bear cubs in wildlife refuges. Republicans still hope to gut a safety rule for chemical facilities like the fertilizer plant that exploded in a Texas suburb in 2013, as well as a consumer rule protecting users of prepaid credit cards against fraud and unauthorized fees. They’re showing the public where they stand on these issues, if anyone cares enough to look.

Trump isn’t the driving force behind the CRA crusade, but it has shown the public where he stands, too—with the Republican establishment he lampooned during his campaign. Perhaps he feels compelled to sign the resolutions because he’s got nothing else to sign these days and the more consequential Obama-era regulations could take him years to undo; perhaps he’d really prefer to drain the swamp and reclaim his populist mantle. But that isn’t what he’s been doing. And in a month or so—depending on the legislative calendar, the drop-dead date should be around May 9—the clock will run out on the CRA. At least until the next president.

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