Five legislative styles of members of Congress

Workhorses are but one of the sorts of legislator. Source:

Workhorses are but one of the sorts of legislator. Source:

By Casey Burgat

Even the most casual observer of American politics recognizes stylistic differences between members of Congress (MCs) and how they approach their jobs. Some MCs are more vocal, consistently making the rounds on cable news to explain their positions, while others are more comfortable cracking down on the details of policy and avoiding the spotlight altogether. Still others spend a greater portion of their time and resources fundraising for themselves and their co-partisans.

We know lawmakers differ in their goals, tactics and approaches to their congressional work. But, a new paper authored by political scientists William Bernhard and Tracy Sulkin, with an assist from biostatistics assistant professor Daniel Sewell, reveals that MCs cluster into legislative styles that are far more stable and predictable than many would have thought. In the words of the authors, members “engage in patterns or “packages” of activity that correspond to a particular constellation of goals. These patterns are characteristic of individual MCs, but not unique to each.”

Within their August 2017 Legislative Studies Quarterly article, “A Clustering Approach to Legislative Styles”, the authors show that patterns of member decisions, behaviors, and activities ultimately produce five distinct legislative styles of lawmakers: district advocates, party builders, ambitious entrepreneurs, party soldiers, and policy specialists.

To construct these five typologies, the authors identify 16 “everyday behaviors available to all members” that measure variance in MC activity across a host of behavioral domains. Such lawmaker activities include the number of district offices maintained for each MC, the number of bills and amendments introduced, and the amount of money raised and transferred to their colleagues. These lawmaker inputs are then standardized (which allows comparisons across variables of different scales) and put into indices.

Source: William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

Source: William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

The above table presents the variables used to create the eight indices of legislative behaviors. For example, lawmakers that score high on the “showboat” index are those that give more 1-minute speeches within the chamber and publish more op-eds (bylines). Alternatively, “bipartisan” MCs are those that cosponsor a higher percentage of bills introduced by the opposition party.

After standardizing the indices, the authors then use clustering analysis to identify “groups of observations that are similar to one another and distinct from those in other groups.” This creates distinct clusters of relationships between the indices used and produces the five discrete legislative styles.

The authors’ heat map (below) enables readers to visualize the relationship between each index and legislative style cluster. The lighter the shade, the stronger the connection. For example, lawmakers with a policy specialist legislative style score higher than their counterparts on the policy focus index. Party builders are those that give more in campaign contributions to their party, both to their colleagues and respective party committees.

William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

So then, what is the breakdown in legislative styles? The figure below presents the distribution of legislative styles for lawmakers who served within the 101st to 110th Congresses (1989-2008). The three most common legislative styles---district advocates, party soldiers, and policy specialists---characterize between 26% and 32% of MCs. Party builders represent about 12% of the lawmakers studied, while ambitious entrepreneurs, those MCs that scored high on the fundraising and showboater indices, make up the smallest cluster at 3.7% of members.

William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

William Bernhard, Tracy Sulkin, and Daniel Sewell, "A Clustering Approach to Legislative Styles."

Within the paper the authors point out several additional interesting and important features of MC legislative styles. First, once adopted by lawmakers, legislative styles are relatively stable---77% of members retain their legislative styles from one Congress to the next.

Second, nearly 60% of members begin their congressional careers as party soldiers, meaning they vote regularly with their party and are active in fundraising and lawmaking as freshman. As MCs gain seniority, though, the percentage of lawmakers who fall into the party soldier cluster drops, with just 17% of MCs fitting this description by their fourth term. As MCs serve longer, they are likely to transition from party soldiers to policy specialists or party builders. (This finding may have implications for those who advocate for term limits.)

Third, the authors find that the legislative styles of freshman MCs are dependent on a variety of political and demographic factors. For example, freshman MCs with previous state legislative experience are more likely to start their congressional careers as policy specialists, and freshman that represent diverse districts are more likely to take on a district advocate legislative style when compared to MCs elected within homogenous districts.

This research aides our understanding of how and why lawmakers vary in their approaches in executing their responsibilities as members of Congress. While we have always known that their individual goals and institutional factors and constraints help shape their legislative styles, Bernhard, Sulkin, and Sewell’s paper highlights that despite the many differences in member personalities and district attributes, MCs largely operate within the same political context. As a result, legislative behaviors do cluster into distinct and consistent legislative styles.

Casey Burgat is a governance fellow at the R Street Institute.

ICYMI: Round-up of good reads on Congress

So many powers. Source:

So many powers. Source:

Daniel Stid, "The Hidden powers of the people’s branch: Passing legislation isn’t the only way Congress can check an unruly president," Washington Monthly


"An additional soft power that Congress must exercise to restore its institutional heft is to fully fund the staff capacity and expertise it needs, in member offices, committees, and nonpartisan legislative support organizations like the Government Accountability Office and the Congressional Research Service. Chafetz notes that legislative reorganization acts passed by Congress in 1946 and 1970 bulked up this capacity, in part to provide for more systematic oversight and investigations of the executive branch. But when the GOP gained its dual congressional majorities in the mid-1990s, they shrank House committee staffs by one-third, disbanded the Office of Technology Assessment, and cut the budgets of the GAO and CRS. In effect, they lobotomized the institution they had fought so long to win control of at the very moment they should have been optimizing its capacity. Congress’s budgets and staff horsepower have never recovered. Until Congress allows itself—and pays for—the quantity and quality of staff and expertise it needs, its members cannot begin to oversee the executive branch adequately and will continue their overreliance on lobbyists for policy advice."


Also see:


Wendy Ginsberg, The Federal Vacancies Act: FAQs, Partnership for Public Service

Wendy Ginsberg, The Forward-Looking Inspector General, Partnership for Public Service


Kathy Goldschmidt and Lorelei Kelly, "Congress just doesn’t know enough to do its job well. Here’s why," Washington Post

Kristin Nicholson and Travis Moore, "Capitol Hill has a sexual harassment problem," Washington Post

Quorum, "Amidst tax reform debate, House also passes 13 Bills,"

James Wallner, "The GOP is in a civil war, and Mitch McConnell is making it worse," Washington Examiner

James Wallner, "Putting individual mandate repeal in the tax reform bill only complicates the GOP's efforts," Washington Examiner




The 21st Century Cures Act: Another form of appropriation and another congressional win-win

Spending decisions long have been tricky. Joseph Keppler, "The opening of the congressional session," Puck, 1887. Source:

Spending decisions long have been tricky. Joseph Keppler, "The opening of the congressional session," Puck, 1887. Source:

By Tony McCann

Congress is increasingly caught between two powerful desires. First, there is the historic role of discretionary annual appropriations to fund agencies and exercise the “power of the purse” in our checks and balances system. Second, there is the wish to avoid annual appropriations via mandatory funding to lock-in predictable financial support of their priorities.

The result has been the proliferation of forms of appropriations as one side or the other prevails, or compromise is reached, in individual congressional actions.[1]This conflict was exacerbated by the advent of appropriations caps in the 1990’s that strengthened the resolve of interest groups to circumvent the budget process and weakened the Appropriations Committee’s ability to resist the end runs.

The 21st Century Cures Act (Public Law 114-255, 130 Stat. 1033 (2016)), the most recent example of this phenomenon, created yet another hybrid form of appropriation.[2]

The Cures Act authorizes a series of “Innovation Accounts” for the National Institutes of Health (NIH), and the Food and Drug Administration (FDA). For the NIH, the law creates accounts for the Beau Biden Cancer Moonshot and NIH Innovation Projects. For the FDA, the statute authorizes accounts for innovative projects under the agency’s existing authorities. The legislation also establishes an “Account for the State Response to the Opioid Abuse Crisis.”

In total, the act “transfers” (appropriates) $6.3 billion from the general fund to these “Innovation Accounts,” and provides specific amounts for each account for each fiscal year 2017-2026.[3] The Act then provides a series of budget offsets, totaling $6.3 billion, through reductions in Medicare, Medicaid, and other programmatic and managerial accounts.[4]

Funds, however, are not available until appropriated in annual appropriations acts. Thus, the Act transfers (appropriates) $6.3 billion into the various accounts, provides $6.3 billion in offsets and contemplates $6.3 billion in annual appropriations to fund the authorized activities. To assure full funding, the legislation forbids the Congressional Budget Office from scoring appropriations from the funds against the Appropriations Committee’s budget cap.[5]

This complex formulation is the result of the interplay of competing forces inside and outside Congress.[6] According to Kaiser Health News, “The 21st Century Cures Act… is one of the most-lobbied health care bills in recent history, with nearly three lobbyists working for its passage or defeat for every member on Capitol Hill.”[7]

As originally introduced by Congressman Fred Upton, R-MI, the Cures Act (H.R. 6) both authorized and appropriated funds to the Innovation Accounts (i.e. they were mandatory) and this approach was strongly supported by the various advocacy groups. The Senate, however, was concerned by the overall level of mandatory funding and, along with conservative Republicans in the House, wanted the funding made subject to annual appropriations.[9]

In a classic congressional compromise, the advocates got their funding reasonably assured since the appropriation does not count against an appropriations committee’s budgetary caps. The budget and appropriations committees got at least the fig leaf of having the final funding available only after enactment in an annual appropriations act.

S. Anthony (Tony) McCann serves on the faculty of the University of Maryland teaching courses in Public Policy and Budgeting. In addition to his extensive executive branch experience, Tony has congressional experience as the clerk and staff Director of the subcommittee of the House appropriations committee that funds most of the federal government’s discretionary programs in health, education and labor.


[1] Kevin R. Kosar, “How many types of appropriations are there?”, March 29, 2017,


[3] S. Anthony McCann, “Forms of Appropriations, A Typology,” Public Budgeting & Finance, Vol. 36, #2 (Summer 2015) p. 125.


[5] 21st Century Cures Act, P.L. 114-255, 130 Stat. 1033, 1039 (Title I).


[7] Kaiser Health News, “‘Cures’ Act in Congress Heavily Influenced by Lobbyists,”




Why cloture benefits both parties

Tick-tock goes the Senate clock. Source: Standing Rules of the Senate.

Tick-tock goes the Senate clock. Source: Standing Rules of the Senate.

By James Wallner

Senate Rule XXII requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to invoke cloture, or end debate, on any “measure, motion, or other matter pending before the Senate…except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting.”

Consequently, cloture is typically understood today as making minority obstruction possible. A three-fifths vote is effectively required to schedule an up-or-down vote on most questions absent the unanimous agreement of all 100 senators. However, ending debate on presidential nominations only requires a simple-majority vote. (Democrats used the nuclear option to reduce the threshold to invoke cloture on most nominees in 2013 and Republican did the same for Supreme Court nominees earlier this year.)

Notwithstanding the recent use of the nuclear option, cloture remains a time-consuming process when the Senate is considering nominations and legislation. For most debatable measures, the entire process requires four calendar days to complete. This gives individual senators the ability to singlehandedly delay the consideration of the majority’s agenda on the Senate floor simply by withholding their consent to expedite the decision-making process. Given this, the number of cloture votes is frequently cited as evidence of minority obstruction.

But there is more to cloture than minority obstruction.

It is certainly not incorrect to view cloture motions and minority obstruction as related. However, such a narrow focus overlooks the many advantages that the cloture rule offers Senate majorities. In July 2012, then-Majority Leader Harry Reid, D-Nev., acknowledged these benefits in an exchange with then-Minority Leader Mitch McConnell, R-Ky. on the Senate floor in July 2012. “The filibuster was originally…to help legislation get passed. That is the reason they changed the rules here to do that.”

The majority, acting through its leadership, can use cloture to structure the legislative process to its advantage. When viewed from this perspective, the incidence of cloture votes also reflects an increase in the influence of the majority leader and, by extension, the majority party, in the Senate’s deliberations.

The evolution in the use of cloture during the second half of the twentieth century increased the influence of the majority leader. Cloture is now utilized preemptively on a routine basis to speed consideration of legislation regardless of time spent on the floor. In this process, the majority limits the minority’s ability to freely debate measures and offer amendments pursuant to the Senate rules. Such behavior may simply result from the anticipation of expected obstruction by the minority party. It could also represent a genuine effort to push the majority’s agenda through the Senate unchanged in a timely manner. The restrictive process could also be utilized to defend carefully negotiated legislation from killer amendments or to protect majority party members from having to take tough votes.

The majority leader frequently uses cloture as a scheduling tool when the Senate considers major legislation. While filing cloture is a time-intensive process, it provides the only clearly established procedure for the resolution of debatable questions in the Senate. Thus, the cloture rule provides a small degree of certainty in an otherwise uncertain environment. The majority leader can use such certainty to his advantage by scheduling votes at the end of the week and immediately prior to a long recess to force an issue. Obstructing senators are less likely to risk the ire of their colleagues by forcing a rare weekend session.

The cloture rule also gives the majority leader the ability to impose a germaneness requirement on amendments to legislation post-cloture. Such a requirement may spare majority party members from having to take tough votes on non-germane amendments. It also protects carefully crafted legislation from poison-pill amendments unrelated to the underlying issue.

Finally, cloture is often utilized by the majority leader for symbolic purposes. By triggering an up-or-down vote on legislation, cloture establishes a clearly defined line of demarcation between the majority and minority parties on controversial issues. Such votes can be presented as take-it-or-leave-it propositions. The proponents of such measures can often portray the senators who vote against them as not supporting the underling legislation.

Without the cloture process, the majority leader would not have these important, albeit limited, tools at his disposal, and he would thus be unable to structure the legislative process to the majority’s advantage using existing Senate rules. When combined with the practice of filling the amendment tree, the cloture process further allows the majority leader to limit the ability of individual senators to participate in the legislative process without having to change the Senate’s rules to reduce their procedural prerogatives.

The fact that the majority leader regularly files cloture early in the legislative process before any actual obstruction can be said to have occurred on a measure is illustrative of the benefits that Senate majorities derive from the cloture process. As the figure below demonstrates, the instances in which cloture has been utilized during the early stages of a measures consideration on the Senate floor have increased dramatically since 2001. This dynamic can be isolated and the majority’s preemptive use of cloture can be more readily discerned by comparing the total number of cloture motions filed in a Congress to the number filed when omitting those motions filed on the first day of a bill’s consideration or very early in the legislative process.


The takeaway from this is that the cloture process may benefit both the majority and the minority parties in the Senate today.

James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams.

Bipartisan Hack-a-Thon Scheduled for November 30

Congressional Hack-a-Thon 11-30-2017.jpg

House Majority Leader Kevin McCarthy and House Democratic Whip Steny Hoyer invite you to a hack-a-thon!

The event will bring together a bipartisan group of Members of Congress, Congressional staff, Legislative Branch agency staff, open government and transparency advocates, civic hackers, and developers from digital companies to explore the role of digital platforms in the legislative process. Discussions will range from data transparency, constituent services, public correspondence, social media, committee hearings and the broader legislative process...."

Read more or register at

ICYMI: Round-up of good reads on Congress

Read more or get a copy.

Read more or get a copy.

New: Michael Pertschuk's When the Senate Worked for Us (Vanderbilt University Press, 2017).

Excerpt from Lee Drutman's review of the book, "Congress wasn't always this awful," Washington Monthly:

"Congress just has fewer staff positions than it used to. In 1975, Pertschuk’s Commerce Committee had 112 staffers, which increased to 162 by 1985. By 2015, staffing on the committee had fallen to eighty-three. In the Senate, staffing levels stagnated in the 1980s and have declined slowly since. House staffing levels underwent an even sharper decline after Newt Gingrich became speaker in the 1990s and slashed committee budgets. Neither chamber has recovered. Nonpartisan sources of expertise in Congress have also declined. The Government Accountability Office and the Congressional Research Service, which provide nonpartisan policy and program analysis to lawmakers, now employ 20 percent fewer staffers than they did in 1979.
"Some of this is the consequence of party leaders centralizing resources in order to ensure that they control the process. Some is a consequence of conservative small-government dogma and an unwillingness of members of Congress to defend their own institution. The upshot is that more and more policymaking is outsourced to the phalanxes of lobbyists who surround Capitol Hill, since they’re now the ones with the expertise, resources, and time to develop and build support for policies.
"When the Senate Worked for Us is a helpful reminder that Congress didn’t always look the way it does now. A remarkable number of bright and talented young people still want to work in Congress, and do—it’s not that nobody wants the job. But few people stick around like Pertschuk and his Bumblebees did. In part they leave because the pay has gotten worse, and in part because there are simply fewer and fewer opportunities to do much of significance. A gridlocked Congress is a frustrating place to work, as is one in which party leaders dominate policymaking. Change that, and perhaps a new generation of Bumblebees will fly again."

Other good reads include:

Stuart Butler, "Republicans will need to work with Democrats to pass tax reform," Brookings

James Hohmann, "The Daily 202: Republican committee chairmen are retiring in droves, despite unified control of Congress," Washington Post's The Daily 202

James Wallner, "Jeff Flake’s indictment of American politics," Library of Law & Liberty

James Wallner, "Will the reconciliation route work?" Library of Law & Liberty

Donald Wolfensberger, "The dysfunctional Senate," The Hill.

And for serious Congress nerds there is this: an article on the Senate blue slip archive, which was published in the autumn copy of the Legislative Studies Scholar newsletter (pages 44-45).

The Obamacare markets: Trump is making Democrats pay for writing an ambiguous law

P.L. 111-148, also known as "Obamacare."

P.L. 111-148, also known as "Obamacare."

By Rob Oldham

Over the last few weeks, the Trump administration has taken an important step in dismantling the Affordable Care Act by cancelling $7 billion in cost-sharing subsidies that the federal government had been paying to health insurance companies. The ACA mandates that insurance companies reduce out-of-pocket costs, like copays and deductibles, for low-income enrollees on the ACA exchanges, and the subsidies fund those reductions. But according to a federal court ruling, the cost-sharing subsidies are not continuously funded by the ACA, meaning the Trump administration cannot make the payments without a specific appropriation from Congress.

The case of the cost-sharing subsidies implicates a well-traversed area of constitutional authority: Who controls the spending powers of the federal government? Is it the president, who directs the Treasury, or Congress, which writes laws authorizing outlays from the Treasury? Article I of the Constitution seems to clearly put spending in Congress’s domain, saying, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…” Indeed, plenty of intellectual energy has been expended affirming that, as the Supreme Court ruled in United States v. MacCollom (1976), “the expenditure of public funds is proper only when authorized by Congress.” However, reality has always been more complicated, with the president sometimes spending unappropriated funds to carry out his executive duties. While courts usually rule in favor of Congress’s power, presidents have taken advantage of ambiguity in laws to spend unappropriated funds, which is what happened with the cost-sharing subsidies.

The subsidies were essential for the ACA to lower the uninsured rate. It had a three-part structure to achieve its goal: obliging insurers to cover all people, requiring all people to buy insurance, and making insurance affordable. Two government spending programs were designed to lower health care premiums and out-of-pocket costs for low-income persons, respectively. Premiums were reduced by tax credits authorized by the ACA’s section 1401 and out-of-pocket costs were reduced by section 1402’s cost-sharing subsidies.  

Although they perform the same function of making healthcare costs cheaper for low-income persons, there is a critical difference between sections 1401 and 1402 that explains why the Trump administration cancelled the cost-sharing subsidies and left the premiums in place (which might cause the federal deficit to increase, according to the CBO). Section 1401 authorizes a permanent appropriation for the premiums, meaning Congress does not have to reauthorize them via annual appropriations. Section 1402, however, authorizes a current appropriation, specifically saying the payments shall be made “at such time and in such amount as the Secretary of Health and Human Services specifies.” A current appropriation must be renewed every year.

The lack of continuous funding for cost-sharing subsidies presented a problem for President Obama. He wanted to ensure that the federal government could continue to offset the costs of reductions that insurance companies had to make. Without the subsidies, the companies would have to recoup their losses on the reductions in other ways, potentially by increasing premiums. So, while the administration continued to ask Congress to appropriate the cost-sharing subsidies in annual budget requests (a tall order after the 2010 Tea Party wave brought a Republican majority to the U.S. House), the administration simultaneously began making the payments without an appropriation.

This caught up with Obama in November 2014 when the House Republicans filed a lawsuit claiming that the payment of the subsidies infringed on Congress’s Article I power to appropriate the funds that the federal government spends. In May 2016, D.C. District Court Judge Rosemary Collyer (a George W. Bush appointee) ruled in favor of the House Republicans. She wrote:

“Paying out Section 1402 reimbursements without an appropriation…violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.”

Collyer’s opinion addresses a series of arguments the Obama administration used to justify paying the cost-sharing subsidies without an appropriation. The administration’s most compelling arguments laid out a legal theory of the discretion that should be afforded to the executive branch when Congress either does not make an appropriation or was ambiguous. These arguments cited the Supreme Court’s ruling in King v. Burwell (2015), a similar case where the plain text of the ACA did not appear to authorize premium subsidies for persons that purchased plans on federal-run, as opposed to state-run, exchanges. In a 6 to 3 decision, the court ruled the subsidies could go toward plans purchased on the federal exchanges because the full context of the ACA clearly indicated that Congress wanted to cover as many people as possible. Not allowing the credits for federal exchange enrollees would undermine the law’s purpose.

The argument for the cost-sharing subsidies is similar. An amicus brief filed by a group of health policy scholars laid out the case, arguing that Congress could not have intended to make premium subsidies continuous and cost-sharing subsidies on a year-by-year basis as this would have prevented the ACA from achieving its legislative goal of decreasing the uninsured rate. Essentially, the administration was saying it should be able to take certain actions and spend funds to help the law achieve its overall goal even if Congress did not approve the actions.

Despite the Obama administration’s efforts to justify executive preeminence in spending and administering laws, Judge Collyer ruled in favor of the House Republicans. She did, however, allow the payments to continue being made while the case was appealed. This continued through 2017, which is when the Trump administration inherited responsibility for the payments.

After the subsidies were cancelled by Trump, 18 states and Washington, D.C. filed suit to compel the federal government to make the payments.  They made similar arguments to the Obama administration in terms of the executive’s power to make the payments in the absence of an appropriation (with an added twist that Trump was attempting to undermine the ACA and crash the health insurance exchanges). Federal Judge Vince Chhabria, an Obama appointee in the Northern District of California, ruled in favor of the Trump administration, but he also conceded that the appropriation issue was “a close and complicated question.”

The future of the cost-sharing subsidies is unknown. While there appears to be support in the U.S. Senate for reviving them, Speaker Paul Ryan and President Trump have expressed their opposition. Ryan’s statement following their cancellation hits at the core legal issue surrounding the subsidies:

Under our Constitution, the power of the purse belongs to Congress, not the executive branch. It was in defense of this foundational principle that the House, under the leadership of former speaker John Boehner, voted in 2014 to challenge the constitutionality of spending by the Obama administration that was never approved by Congress. The House was validated last year when a federal court ruled that the Obama administration had indeed been making unauthorized and therefore illegal payments through Obamacare. Today’s decision by the Trump administration to end the appeal of that ruling preserves a monumental affirmation of Congress’s authority and the separation of powers.

This harkens back to one of Ryan’s 2016 campaign arguments about the upside of a Trump presidency: He would restore the balance of power to the federal government by limiting executive meddling in matters reserved for Congress. While there is a question of whether Trump too has been seduced by the allure of executive orders (and of whether Ryan’s hope on the campaign was sincere or realistic), the president’s actions on cost-sharing subsidies has certainly shifted some power back to the legislative branch. While that balancing of power could come at the expense of the ACA’s ability to improve the American healthcare system, it should please those longing for a constitutional order based on the separation of powers.

However, with that power comes a responsibility for Congress to address major policy concerns. Congress’s ability to act on policy has been less than stellar in recent years, meaning Ryan’s vision of an empowered legislative branch might not comport with current political realities. As President Trump continues to dump policy items like cost-sharing subsidies and immigration reform into its lap, Congress should meet his challenges and show the American people it can be trusted with governing in a rapidly changing world. If it does not, the legislature risks ceding even more of its power to the executive and drifting further away from being “the First Branch” of government.

Rob Oldham is a political writer interested in legislative politics at the state and national levels.

A new development involving the Congressional Review Act

P.L. 104-121, sec. 801-808, the Congressional Review Act

P.L. 104-121, sec. 801-808, the Congressional Review Act

by Jarrett Dieterle

Over the past year, a debate has broken out in the regulatory reform community over how to properly construe the reach of the Congressional Review Act. Traditionally, most observers viewed the CRA as a tool by which Congress could repeal new regulations that had been issued within the last 60 legislative days. In recent months, however, some legal scholars have argued that while this is broadly correct, it’s far from clear when the CRA’s 60-day clock should start ticking.

Paul Larkin from the Heritage Foundation and others have pointed out that, under the text of the CRA, the clock cannot start until the regulation in question has been submitted to Congress. Because many agency rules were never officially submitted to Congress—even ones that were promulgated many years ago—the 60-day clock was never activated for those rules and Congress could thus still repeal them via the CRA.

Another component of this debate has been clarifying what, exactly, constitutes a “rule” for CRA purposes. The text of the CRA incorporates the Administrative Procedure Act’s definition of “rule,” which as Larkin points out, “has been recognized as quite broad.” This broader interpretation of the term “rule” could encompass informal agency actions like policy statements or guidance, which do not go through the more formalized process of notice-and-comment rulemaking under the APA.

Congress has so far appeared reluctant to embrace this broader interpretation of the CRA’s text and use it to repeal rules and other agency action stretching back into previous administrations. But that could be changing. The Wall Street Journal editorial board and other media outlets are reporting that Senator Pat Toomey, R-Pa., recently asked the Government Accountability Office to issue a determination as to whether a 2013 leveraged lending guidance document from the Obama Administration constituted a “rule” for CRA purposes.

The GAO finally has issued its ruling, concluding that the lending guidance was in fact a rule under the CRA, meaning it is eligible for repeal under the act. Further, under Senate precedent, the publication of a GAO report such as this one is treated as the official trigger for the CRA’s 60-day legislative clock. As the nonpartisan Congressional Research Service has noted:

“In some instances, an agency has considered an action not to be a rule under the CRA and has declined to submit it to Congress… In the past, when a Member of Congress has thought an agency action is a rule under the CRA, the Member has sometimes asked GAO for a formal opinion on whether the specific action satisfies the CRA definition of a ‘rule’ such that it would be subject to the CRA’s disapproval procedures.
GAO has issued 11 opinions of this type at the request of Members of Congress. In seven opinions, GAO has determined that the agency action satisfied the CRA definition of a ‘rule.’ After receiving these opinions, some Members have submitted CRA resolutions of disapproval for the “rule” that was never submitted…
Members have had varying degrees of success in getting resolutions recognized as privileged under the CRA even if the agency never submitted the rule to Congress. It appears from recent practice that, in these cases, the Senate has considered the publication in the Congressional Record of the official GAO opinions discussed above as the trigger date for the initiation period to submit a disapproval resolution and for the action period during which such a resolution qualifies for expedited consideration in the Senate…”

It remains to be seen if Congress will pursue a resolution of disapproval under the CRA to repeal this particular rule on leveraged lending, but the potential implications run deep. Congressmen could ask GAO to issue more opinions determining whether past agency actions constitute rules for CRA purposes, and then seek to repeal them. The law firm Cleary Gottlieb observed in a memorandum on this development:

“The GAO’s Leveraged Lending Opinion casts a shadow of uncertainty over the applicability and future viability of the Agencies’ leveraged loan supervision regime, and critically, other agency actions that could be characterized as ‘rules’ subject to Congressional disapproval. In fact, if Congress seeks to address other agency ‘rules’ that were never submitted to Congress under the CRA, the total volume of agency interpretations and statements of policy that could potentially become subject to Congressional disapproval would be very large indeed.”

The Red Tape Rollback project (of which the R Street Institute is a partner) has been compiling a list of agency actions and rules that were never properly submitted to Congress and are therefore potentially still eligible for repeal via the CRA. We’ll see where Congress goes from here, but it’s possible it could be on the brink of adopting a broader interpretation of the CRA.

C. Jarrett Dieterle is a governance policy fellow at the R Street Institute.