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Net Neutrality and Senate Democrats' Renewed Love for the Congressional Review Act

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The Congressional Review Act (CRA) is the law by which the Republican Congress and the Trump Administration eliminated 14 of President Obama’s “midnight regulations” by passing laws called “resolutions of disapproval” (RoD).

There was, unsurprisingly, plenty protest from Democrats.

Sen. Cory Booker (D-NJ) even introduced legislation in 2017 to get rid of the Congressional Review Act.

But Democrats rediscovered love in 2018 for the CRA in the wake of the Federal Communications Commission’s (FCC) December 2017 rollback of the Obama-era net neutrality rule that the same agency issued in 2015.

Sen. Ed Markey (D-Massachusetts) has gained all the support he needs for Senate passage of a not-yet-introduced RoD to disapprove the FCC's rollback of "neutrality." Markey claims his resolution will "ensure a free and open internet ... and level the playing field away from the big corporations."

Sen. Claire McCaskill (D-Missouri) used the exact same phrase when she signed on, tweeting: "30 is the magic number of cosponsors needed to get a #NetNeutrality vote in the full Senate ... Proud to be that 30th cosponsor of @SenMarkey bill to restore free and open internet."

Cory Booker supports the Markey resolution, too, so never mind that business about abolishing the CRA.

In fact, all Senate Democrats support the RoD  to reinstate FCC's Obama-era net neutrality rules. So, too, does Republican Susan Collins of Maine.

This all assures an expedited Senate floor vote -- bypassing committee -- one that cannot be filibustered.

Left-leaning groups support the rollback. Battle for the Net has initiated a Hill office phone-in campaign, insisting that, "If we don't, big ISPs like Comcast will control what we see & do online with new fees, throttling, and censorship."

Big Tech supports Markey's resolution too. Markey asked Facebook, Twitter and YouTube representatives at a Senate Commerce subcommittee hearing on "Terrorism and Social Media: #IsBigTechDoingEnough?" whether or not they support his resolution to reinstate net neutrality.

These biggest of the big told Sen. Markey in emphatic terms that, yes, they support the resolutionto overturn the FCC rollback of net neutrality intervention.

It is unclear how tech titans' supporting net neutrality rules that help them call the shots against ISPs qualifies as "level[ing] the playing field away from the big corporations"

The tech firms also told Sen. John Thune (R-SD) they support legislation codifying net neutrality “principles.”

Unfortunately the score-settling and regulate-the-other-guy posture between infrastructure, content, social and app vendors aggravates the ongoing backlash against big tech, threatening to result in heavy regulation of Google, Facebook and Amazon’s data collection, liability posture, and business practices. That will be bad news for them, and consumers.

In any event, President Donald Trump would veto the Markey resolution in the unlikely event the House passed it. It won't succeed for the very reason only one rule got eliminated prior to Trump. Presidents of either party tend not to support removal of rules issued on their own watch; they primarily eject those of their predecessors during a transition of power between parties. Until the Trump administration’s rejection of 14 Obama rules (as well as one Trump-era Consumer Financial Protection Bureau rule), only one rule had been rejected -- a Labor Department rule on workplace repetitive-motion injuries back in 2001. (See this overview of the CRA operations by Paul Larkin of the Heritage Foundation.)

But Democrats are excited about the prospect regardless because, if realized, it would presumably not allow FCC to address net neutrality again according to some but not other interpretations of the CRA; rather, net neutrality would be permanent policy.

This episode, though, has ramifications for the broader discussion surrounding government's role in the economy and regulatory reforms.

I referred earlier to Democrats' renewed love for the CRA. I say "renewed,” because few realize the original CRA, which passed as part of the Small Business Regulatory Enforcement Fairness Act in the mid-1990s, sailed through on a vote of 100-0 in the U.S. Senate.

Operationally, the 1996 Congressional Review Act requires agencies to submit to both houses of Congress and to the Comptroller General of the Government Accountability Office a report containing “a copy of the rule” (including guidance or “interpretative rules”) and a descriptive statement including whether or not it is “major.” Additionally the GAO submits a report to Congress on major rules—those with at least $100 million in estimated annual costs -- that are maintained in a GAO database. Congress gets 60 legislative days to review a final major rule and pass a resolution of disapproval, which receives the expedited treatment in the Senate noted above.

Before the 115th Congress, I put together this compilation of CRA resolutions introduced up thorough October 2015 (almost half of the 114th Congress). At the time, they numbered 109.

Inventory of Resolutions of Disapproval Introduced Since Passage of the Congressional Review Act in the 104th Congress

But guess what – 33 of them were from Democrats. That's not insignificant.

Like the Markey resolution, many of these were to halt a Republican (that is, Bush) relaxation of regulations (such as a Democratic RoD to block yet another FCC effort, a Bush-era easing of broadcast media ownership strictures)

The CRA, despite all the controversy, in its essence, is one of the more important affirmations of congressional authority over the legislative rulemaking enterprise.

If Democrats re-associate themselves with the Congressional Review Act, which requires Congress to get on its hind legs to disapprove a rule, that is notable over the long term.

Perhaps they could find space in their hearts someday for the next step, which would be that of requiring Congress to actively affirm the imposition of a costly or controversial rule.

That's dream thinking, since of course that would have prevented FCC's imposition of net neutrality in 2015 in the first place.

The Democrats' strategic use of the CRA now, and largely before, exploits a law originally meant to restrain government to instead expand unelected authority. Such are the hazards of the modern administrative state, as distinct from our one-time republic.

But it would be nice to see this newfound love for the CRA last. Constituents pulling the economic wagon could love it too, when and if we elect another Senate with 100-0 attitudes.

Originally published to Forbes.