Congressional Review Act May Reemerge as GOP Net Neutrality Counter

“We have used the Congressional Review Act before and would not be afraid to use it again,” Rep. Joe Barton, R-Texas, told us in a statement. Barton is a former chairman of the Commerce Committee and current Communications Subcommittee member. He declined to prescribe a specific path since the FCC is still considering its next steps but said he opposes reclassification.

All options are on the table, said a Republican House Commerce Committee aide, declining to say whether the Congressional Review Act (CRA) may come into play. Committee Republicans are watching the FCC and await an official proposal, he said, saying what has been floated and discussed is still at a high level.

Hill Republicans invoked the CRA in a protracted struggle to repeal net neutrality rules in 2011. It allows Congress to kill certain major agency rules, assuming a lawmaker introduces a resolution to review and reject agency regulations within 60 session days of their publication. The expedited process allows senators to press for a floor vote on any such resolution with the backing of only 30 senators. A successful invocation of the CRA prevents an agency from seeking redress in court or issuing similar regulations. The procedure is applicable in the case of any rule defined as “major,” judged by the CRA as “an annual effect on the economy of $100 million or more,” “a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions,” or “significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets,” according to the GAO. Congress has introduced 43 CRA resolutions since 1996, with only two of those resolutions passing through one chamber and only one rule by both, GAO said.

'Nuclear Option'?

Public Knowledge blasted the CRA as “the nuclear option” when describing its opposition in 2011. House Communications Subcommittee Chairman Greg Walden, R-Ore., introduced H.J. Res-37 in February 2011, with support from Commerce Committee Chairman Fred Upton, R-Mich. The House passed the CRA resolution 238-174, largely along party lines. The effort stalled in the Senate, then under Democratic control -- which is set to end next Congress. Sen. Al Franken, D-Minn., is one lawmaker still in power now who opposed the House CRA vote then, calling it in a floor statement “a political stunt designed to misinform Americans and appease a small number of very vocal critics.”

If GOP lawmakers use the CRA on any net neutrality rules in 2015, Democrats would be unable to stop them if lawmakers vote along party lines. The issue is widely seen as more hotly partisan since President Barack Obama endorsed Title II reclassification following the November midterm elections (see 1411100033).

House Commerce will “further investigate the agency’s intentions” at its Dec. 10 oversight hearing of the FCC, Barton said. The committee said it wants all five FCC commissioners to appear. FCC Chairman Tom Wheeler has not yet received an official invitation, an FCC official said. A committee aide said invites are usually sent a week before hearings.

“Congress has a variety of tools at our disposal to address unwanted regulatory actions," said Rep. John Shimkus, R-Ill., in a statement. "I’ll continue to work closely with Chairman Upton and Chairman Walden to find the most appropriate response to whatever the FCC decides.”

Many of the House 2011 CRA resolution’s 58 backers remain in power, including veteran House Commerce lawmakers. Those include Walden and Upton along with Barton, Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., Communications Subcommittee Vice Chairman Bob Latta, R-Ohio, GOP Whip Steve Scalise, R-La., and Shimkus.

Reclassification "is not the best path forward,” Barton said. “I have been against the FCC’s net neutrality rules since the agency released the Open Internet Order in 2010. If we reclassified broadband under Title II, we would give the FCC complete authority to regulate Internet Service Providers and create another layer of unneeded bureaucracy.”

“The real tragedy in President Obama and Chairman Wheeler’s various approaches to net neutrality is that they lack the imagination to see beyond the status quo,” Shimkus said. “Instead of debating how to divvy up today’s existing bandwidth, we should be looking at ways to incentivize the build-out of broadband infrastructure and increase competition in the Internet service market. Regulation, or worse, reclassification of broadband service won’t create more bandwidth -- just more lobbyists, litigation and loopholes.”

Possible CRA Revival

The CRA “remains a concern this time around,” said New America Foundation Open Technology Institute Policy Counsel Joshua Stager, citing the 2011 battle. “However, public support for net neutrality is much stronger today than it was four years ago.” He pointed to “a groundswell of popular support” this year. “Any effort to repeal strong rules in 2015 would likely provoke a public backlash,” Stager said. Congress has “a few arrows in its quiver” in any response to net neutrality, “including appropriations riders, oversight hearings, a re-write of the Telecom Act, and the CRA,” said Stager, a former telecom aide to Franken.

“The agency wouldn’t be able to act,” said Public Knowledge Vice President-Government Affairs Chris Lewis, considering the severity of a CRA resolution in prohibiting future FCC net neutrality rules. He’s “hopeful enough people stand in the way” if the CRA strategy is revived, he said, and like Stager, emphasized the popular support for net neutrality rules now.

The CRA “has been little used, and only once successfully,” considered Free State Foundation President Randolph May. “But if the FCC classifies ISPs as common carriers under Title II, I would not be surprised to see a joint resolution of disapproval under the CRA succeed in passing both houses of Congress.” Obama “can still exercise his veto and he probably would and it likely wouldn't be overridden,” May said.

The CRA is “perhaps the most interesting way in which Congress can exercise control over the FCC,” said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman Monday in a Benton Foundation blog post. “While the CRA has been successfully employed only once, in 2001, its mere existence may sometimes be enough to deter agencies from adopting controversial rules, or to impel them to alter their substance in response to Congressional suggestions.” The CRA's virtue is “unique procedures that circumvent the normal rules of the Senate,” he said, saying such a resolution “cannot be bottled up in committee.” Once advanced to the Senate floor, the resolution “may be passed with a simple majority,” with debate limited to 10 hours and no amendments, he said.

“We could see a repeat of a party-line vote in Congress next year," said Free Press Policy Director Matt Wood, reiterating his group’s backing for reclassification. "That would be a mistake, as poll after poll shows that voters across the political spectrum support sensible safeguards to keep the Internet open.”