Washington, D.C. – Senate Majority Leader John Thune (R-S.D.) said today that “for the first time ever” the Government Accountability Office (GAO) “insert[ed] itself into the process” when announcing that Senate Republicans will vote to go nuclear to overturn the Senate Parliamentarian on the applicability of the Congressional Review Act (CRA) to California’s Clean Air Act waivers.
A survey of GAO opinions however shows more than a dozen times in recent years where Republicans have petitioned the GAO for interpretations of the CRA.
Key Examples:
1. In 2014, after Senate Minority Leader Mitch McConnell (R-Ky.) introduced a CRA resolution of disapproval related to the Environmental Protection Agency’s (EPA) proposed greenhouse gas emissions, the GAO found that a proposed rule was not covered by the CRA.
GAO, May 2014: “Accordingly, GAO and the Office of Management and Budget (OMB) both have included language in their CRA guidance stating that only ‘final’ rules are covered; proposed rules are not subject to CRA.”
Sen. McConnell’s resolution did not move in the Senate as a result, nor did it receive a vote in the Republican-controlled House. It was only advanced once the rule was finalized in the 114th Congress.
2. In 2017, Sen. Lisa Murkowski (R-Alaska) sought guidance from the GAO on a Bureau of Land Management (BLM) plan.
GAO, November 2017: “In response to a letter from Senator Lisa Murkowski, GAO issued an opinion on whether the 2016 Eastern Interior Resource Management Plan (Eastern Interior Plan) issued on December 30, 2016 is a ‘rule’ for purposes of the Congressional Review Act (CRA). We concluded that the Eastern Interior Plan is a rule under the CRA, which requires that it be submitted to Congress for review.”
3. In 2018, Sen. Pat Toomey (R-Pa.) used the GAO to target the founded Consumer Financial Protection Bureau (CFPB).
Politico, April 2018: “[Toomey] asked the Government Accountability Office to determine whether the CFPB auto-lending guidance qualified as a rule for the purposes of the Congressional Review Act. In December, GAO told him that it did in fact satisfy the legal definition of a rule, starting the clock for Republicans to undo it without having to seek any help from Democrats.”
Despite Senate Republican leadership’s attempts to downplay the decision to overrule the Senate Parliamentarian ruling, if they move forward with this plan, it would be the first time in history that the Senate bypassed the legislative filibuster.
Additional Background:
U.S. Senator Adam Schiff has repeatedly called out Senate Republicans’ plan to overturn the Parliamentarian to target these waivers provided to California on the basis of nearly 60 years of precedent and EPA policy.
“Don’t take it from me: ‘We can’t go there.’ That’s what the Senate Majority Leader said about the prospect of overruling the parliamentarian, merely 5 months ago. As did his Republican predecessor, who said, ‘Abiding by the ruling of the parliamentarian is central to the functions of the Senate,’” said Senator Schiff in a floor speech earlier this month.
“If they try to tell you that this is not them overturning the parliamentarian – you must not believe them. The parliamentarian has ruled — This device, this mechanism cannot be used to overturn California’s waiver and its ability to set its own air standards. This ruling from the Senate’s independent referee has been explicit and direct. And it should be respected,” Schiff said.
Following Environmental Protection Agency Administrator Lee Zeldin’s unprecedented request to Congress to use the CRA to overturn EPA waivers for California, Senators Adam Schiff, Alex Padilla (D-Calif.), and Sheldon Whitehouse (D-R.I.) petitioned the U.S. Government Accountability Office (GAO), the independent federal watchdog, to issue a decision on whether the waivers are subject to the CRA.
The GAO found that the CRA is inapplicable to these waivers, and the Senate Parliamentarian concurred with GAO’s decision.
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