Carl Hulse
Sat, March 4, 2023 at 9:24 AM CST· 6 min read
WASHINGTON — Republicans have settled on their procedural weapon of choice for this Congress — and they have it trained squarely on Democrats anxious about their 2024 prospects.
Twice in the past week, Republicans scored wins and divided Democrats by employing an arcane maneuver known as a resolution of disapproval to take aim at policies that they oppose and see as political vulnerabilities for Democrats, using the measures to amplify their message.
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The biggest victory came on Thursday, when President Joe Biden told Senate Democrats that he would sign a Republican-led resolution blocking the District of Columbia’s new criminal code if it reached his desk. It was a reversal from his earlier opposition and a frank acknowledgment that Republicans had gotten the better of Democrats on the hot-button topic of violent crime.
It is somewhat unusual for the president to have to confront legislation he opposes when his party controls at least part of the Congress — in this case the Senate — since his allies on Capitol Hill can usually bottle up legislation they don’t like and spare him from a veto or a tough decision.
But the beauty of a resolution of disapproval is that it has special status in the Senate. It can’t be kept off the floor by the majority leader and is not subject to the filibuster, providing a blunt political instrument for lawmakers if they can assemble a simple majority. That is because of the Congressional Review Act, enacted in 1996 after Republicans took power on Capitol Hill, which created the process that allows Congress to upend federal rules.
With little power to set the Senate agenda, Republicans regard the tactic as a handy way to score legislative victories and force Democrats to debate subjects they would rather avoid.
“When you are in the minority, there is not a lot else you can do,” said Sen. John Cornyn, R-Texas. “I think it is useful, and you are seeing some election-year conversions in terms of votes. You get to raise the visibility of some of this stuff and get to actually have a discussion of whether it works or not.”
The technique also fits the Republican legislative mindset, which tends more toward blocking policy rather than creating it.
“We are built to disapprove,” said Sen. Kevin Cramer, R-N.D.
The current makeup of Congress makes the resolution of disapproval a potentially powerful weapon for Republicans. With their narrow control of the House, the GOP can win approval of a resolution with no Democratic votes if necessary. Then, because of the legislation’s special status in the Senate, Republicans can force a vote there, presenting Democrats with the unpleasant choice of either casting a politically difficult vote in opposition or supporting the measure and allowing it to pass, thus sending it to Biden and prompting a veto showdown.
That is what happened this week when the minimum required two Democratic senators — Jon Tester of Montana and Joe Manchin of West Virginia — joined Senate Republicans in voting to block a Biden administration rule that allows retirement funds to consider “environmental, social and governance” factors when deciding where to invest.
Democrats argued that the new rule was neutral and did not require investors to weigh those factors, but only allowed the practice after a Trump-era rule had prohibited it. But Republicans claimed that the regulation was an example of Democratic “woke ideology” run amok and could diminish retirement investment returns and penalize fossil fuel companies. It was enough to break away the two Democrats — both up for reelection next year — and send the resolution to Biden, who has promised to veto it.
It had already passed the House, though just one Democrat, Rep. Jared Golden of Maine, supported it.
The resolution on the District crime bill was another matter entirely. Thirty-one Democrats joined House Republicans in February in voting to block the District’s new criminal code, which had come under fire for reducing or eliminating mandatory minimum sentences on some crimes while the capital is experiencing a wave of high-profile carjackings and homicides. Given Congress’ constitutional authority over the District, its laws are subject to review and can be overturned.
Republicans are eager to cast Democrats as soft on crime and saw the District law as a vehicle to do just that. Recognizing the threat, Senate Democrats were beginning to line up with Republicans, and the resolution appeared headed toward easy approval next week, putting Biden on the hot seat as to whether to veto it at a moment when the public is alarmed about violent crime. The president ended the suspense by announcing he would sign it, making it the first time in 30 years that a District law is set to be blocked by Congress.
Critics of the disapproval push say the fights take complicated policy questions and boil them down to provocative, politically charged sound bites, losing the nuance, research and rationale behind the decisions.
Take the brawl over the criminal code. Proponents say the final product resulted from years of careful deliberation and incorporated some of the best criminal justice practices from around the nation in trying to make the local system more workable and reflective of reality. But all anyone hears is that carjackers might get a lighter sentence.
“They present complex issues,” Sen. Chris Coons, D-Del., said about the resolutions, “ but they are being framed and voted on in ways that have more to do with electoral outcomes and the way they are likely to be used in attack ads rather than the underlying substance of the policy.”
He called the Republican assault on the investment rule “just silly” and said it actually ran counter to the GOP tradition of letting the markets work on their own.
“That was a sort of ‘down is up and up is down’ resolution,” he said.
That is not to say that Democrats have not tried to take advantage of the Congressional Review Act. Senate Democrats tried multiple times to overturn Trump administration policies but were thwarted until Biden was elected, and the Democrat-led Congress then reversed some Trump administration rules.
The review act was intended to give Congress the ability to rein in the federal bureaucracy and was used sparingly at first, with President George W. Bush signing the first resolution into law in 2001 to reverse a widely challenged Clinton-era policy of workplace ergonomic rules.
When Republicans gained control of the House in 2011, they took aim at Obama administration policies, including some on climate change and the environment, but the president vetoed all five resolutions sent to him.
When Donald Trump took office in 2017, he and Republican congressional leaders made a concerted effort to overturn a series of Obama administration regulations. Trump signed more than a dozen disapprovals in the first year of his presidency as Republicans took advantage of their power.
Republicans in Congress tried to continue that push in 2021 after Biden took office. The Senate voted to nullify an administration rule that required large employers to mandate vaccines or regular testing for the coronavirus. But Rep. Nancy Pelosi of California, then the speaker, never scheduled the measure for a vote and it died in the House.
With the GOP in the House majority, there is less standing in the way of such disapproval resolutions. Republicans have already teed up one for next week on overturning Biden administration policy on the scope of regulation of navigable waterways, a huge point of contention in the agriculture and construction industries.
With an election on the horizon, Republicans say they intend to bring forward plenty more. That’s probably an idea of which most Democrats would disapprove.
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