GOP Finds New Way to Target Obama Rulemaking Legacy in CFPB Vote

(Bloomberg) -- GOP lawmakers relied on an obscure law to overturn 14 Obama-era regulations in the Trump administration’s early months. Now they’re seeking to use the same authority to expand their attack on rulemaking, down to the memos circulated by agencies.

Republicans are moving to void the bulletins, letters and other guidances that agencies issue to help individuals and companies comply with a regulation. As soon a Tuesday, the House is expected to pass and send President Donald Trump legislation repealing a 2013 Consumer Financial Protection Bureau guidance meant to discourage discriminatory auto-lending practices.

The vote would mark the first use of the two-decade-old Congressional Review Act to repeal agency guidance, and it may set a precedent for lawmakers to go after rules interpretations from past administrations.

“Congress has this shiny new toy of going back and killing guidance documents and that could be what they do now year in and year out,” said James Goodwin, a senior policy analyst with the Center for Progressive Reform, which champions issues from protecting the environment to promoting workers’ rights. “You have over 20 years of guidance documents that have a cloud of uncertainty over them.”

Under the 1996 Congressional Review Act, lawmakers can overturn a regulation within 60 working days of it being submitted to Congress. The measures can’t be filibustered so a majority vote is all that’s needed in the Senate.

The deadline to overturn a regulation from the Obama administration ended in May 2017, leading many to write off the law being used again. That changed when the Government Accountability Office said the CFPB’s guidance on auto-lending was eligible for repeal under the review act because it was never submitted to Congress, opening the door for repeal of potentially thousands of guidances.

According to a report by the House Oversight Committee, of more than 13,000 guidance documents issued by federal agencies since 2008, only 138 had been formally submitted to Congress and the GAO.

Alaska Republican Senator Lisa Murkowski has already said she may use the procedure to nullify U.S. Forest Service guidance issued during the waning days of the Obama administration restricting access to timber, mining, and other activities in the Tongass National Forest covering the south eastern part of her state.

‘Stealth Regulation’

Several Republican lawmakers and small government groups say agency guidance acts as "stealth regulation" that circumvents Congress and avoids public scrutiny. But unlike formal rules they are issued without the typical notice and comment period required by law.

"Regulatory dark matter is what I refer to them as," Clyde Wayne Crews, a vice president at the Competitive Enterprise Institute, said in an interview. "It’s only recently that the appetite for doing something about it came to forefront."

Among the examples the institute has highlighted are a 2016 Housing and Urban Development document warning landlords that denying rentals to people with criminal records may be a violation of the Fair Housing Act, and an Education Department policy statement limiting preschoolers from being suspended or expelled.

Scuttle Protections

Other watchdog groups say the prospect of agency guidance being overturned is alarming, and worry Congress will scuttle public protections.

"It’s not just a big deal, it’s a catastrophe," said the Center for Progressive Reform’s Goodwin. "Each of these guidance documents help safeguard you and me."

The auto-lending guidance expected to be sent to the White House this week was meant to stop discriminatory markups on some loans made by car dealers. Its repeal was passed by the Senate last month with support from the National Automobile Dealers Association.

"My fellow dealers, we are on the 2-yard line. And if we can get the ball across the goal line, our efforts to finally rescind this deeply flawed and anti-consumer CFPB guidance will have at long last have paid off," Wes Lutz, the group’s chairman, said on its website.

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