Reversing the FCC’s net-neutrality repeal may rest on an obscure law that was used once in two decades: to overturn a federal law requiring safer, ergonomic workplaces.
The Congressional Review Act (CRA) was passed as part of Republican Newt Gingrich’s 1996 “Contract with America,” and allows Congress to overturn executive agencies’ regulations. The Supreme Court had ruled a similar procedure unconstitutional in 1983, so the CRA created a period of 60 “session days” (when Congress is in session) for legislators to gather enough support to force a majority vote in the House and Senate to overturn agency rules. The president then has to sign the resolution. To make it stick, the CRA prohibits agencies from reissuing any rule in “substantially the same form,” effectively turning the CRA into a law-making tool in its own right.
For years, the CRA was primarily a grandstanding exercise for parties outside the White House, since a sitting president typically leads the executive agencies issuing rules. But in 2001, a newly elected George W. Bush struck down workplace safety rules signed into law by former president Bill Clinton, with help from Congressional allies using the CRA.
In November 2000, the Occupational Safety & Health Administration (OSHA) had issued requirements for ergonomic workplaces to prevent injuries. Workplaces deemed ergonomically inadequate would need to be redesigned, and employers had to pay 90% of earnings for those on disability leave due to work-related injuries. It was estimated that the new rules would prevent 460,000 musculoskeletal disorders a year and generate $9.1 billion in annual benefits.
Bush signed the CRA’s first repeal of agency rules in March 2001. It wouldn’t be the last.
In 2017, Republicans emboldened by their lock on Congress and the White House targeted more than a dozen Obama-era rules eligible for reversal under the CRA. In an unprecedented legislative sprint (pdf), Congress voted to overturn 14 such rules, from an EPA rule protecting streams from coal-mining runoff to an FCC ban on selling customers’ browser history. Those repeals are not temporary. Agencies will no longer be able to issue similar regulations without congressional approval.
That’s what gives the CRA so much power in the net-neutrality fight. Senator Ed Markey of Massachusetts and Pennsylvania representative Mike Doyle, both Democrats, have already said they plan to bring a CRA petition to the floor that would reverse the FCC’s ruling. If it passes, the Open Internet Order of 2015 would be reinstated, pending Trump’s sign-off. While unlikely, it is conceivable that a deeply unpopular net-neutrality rule passed under a very unpopular president could be overturned.
But as some Democrats are employing the CRA, others are looking to kill it. Appalled by Trump’s pillaging of Obama-era rules, senators Cory Booker of New Jersey and David Cicilline of Rhode Island have sponsored bills to repeal the act. “When we take back control of the Congress, we’ll be very proud to work in a very transparent way and reverse the things that we think are contrary to the public interest,” Cicilline said. “We should be prepared to do that in regular order, the normal way that the legislative process works.”