December 6, 2016(2)

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Sequester is so 2013. The new buzz words are 'reconciliation' and 'CRA'.

Sequester is so 2013. When it comes to the terms for obscure Congressional procedures that we need to know for 2017, the new ‘it’ phrases are budget reconciliation and Congressional Review Act. This blog post is designed as a quick overview of each term, why it is relevant in 2017 and how it relates to AASA advocacy.

Congressional Review Act:  

  • Background: We know that Congress writes the bills that become law. When it comes to providing additional detail to support implementation of these laws, the relevant agencies issue regulations. Even in granting rulemaking authority to various agencies, Congress does maintain vigilance over the rulemaking process, through a little-used procedure called Congressional Review Act (CRA). CRA was created in 1996 as part of the Small Business Regulatory Enforcement Fairness Act. Among other things, the law provided for Congressional review of agency rulemaking. Relevant to this blog post and what we may expect with a Trump administration, Congress can use the CRA to overturn a rule issued by a federal agency. Since its creation in 1996, the CRA has only been successfully used once, in 2001 to nullify an ergonomics standards rule proposed by the Occupational Safety and Health Administration. In addition to this one successful CRA, more than 40 joint resolutions for disapproval have been introduced—but not adopted—since the law was enacted. 
  • Process: In order for a CRA to stop/halt a final regulation, here’s what must happen: The relevant agency (in our case, US Education Department) provides a report to each chamber of Congress and the Comptroller General that contains a copy of the rule, a summary/general statement related to the rule, and the proposed effective date. At this point, each Chamber of Congress has a specified time period in which they can consider and take action on a motion to disapprove the rule. If both Chambers move to disapprove the rule, it goes to the President, who can either sign or veto. Once signed, the CRA renders any included rule/regulation as null and void. That is, an rule set to take effect would not take effect, and even provisions already implemented would be negated. A CRA cannot be filibustered. A CRA can be applied to a rule in its entirety only; it is ‘all or nothing’, meaning that Congress cannot use the CRA to rescind certain pieces of a rule while leaving others in tact.
  • Education Implications: The CRA can be applied to any regulation issued in the past 60 business days. For Congress, that means anything from May 2016 on. From an education perspective, that would include the Every Student Succeeds Act (ESSA) accountability regulations and the Higher Education Teacher Preparation regulations, and depending on what is released over the remainder of the calendar year, could also include ESSA supplement/supplant; and IDEA significant disproportionality. Additional agencies could be subject to the CRA, and we follow these following regulations: Department of Labor Over Time Rule; Environmental Protection Agency PCB/Light Ballasts in Schools; and Federal Communications Commission Lifeline (home phone connectivity).
  • Then What?: If the CRA is successful and, for example, the ESSA accountability regulations are rescinded, what would that look like for schools? How would state move forward in crafting their accountability work book? If the ESSA accountability regulations are repealed, the CRA provides that another rule that is significantly similar cannot be produced. That is, the agency cannot issue another rule that is substantially similar to the rule that was rescinded. CRA does not clearly define what ‘substantially the same’ means, so that prohibition would be subject to interpretation. 
  • You can read more in this Frequently Asked Question: Congressional Review Act paper, as prepared by the Congressional Research Service.

Budget Reconciliation:  

  • Background: In its simplest form, budget reconciliation can be described as a provision within a budget resolution that directs one or more committees to submit legislation changing existing law in order to bring federal spending into conformity with the budget resolution. It is an expedited process that allows for consideration of tax, spending and debt limit legislation. This could include requirements for the committee to move legislation that reduces mandatory spending (like Medicaid or Medicare, though it cannot be used to change Social Security) or increases revenues as needed. It should be noted that it is almost 100% unlikely that any reconciliation in 2017 would be anything other than cuts in spending. Increases in revenues (tax increases) are a non-starter. The process of reconciliation was created in the Congressional Budget Act of 1974. Congress has enacted 20 budget reconciliation bills since 1980. 
  • Process: Reconciliation is ‘triggered’ when the House and Senate agree on a budget resolution that includes reconciliation directives for certain committees. The directives give certain House and Senate committees a timeline by which they must move legislation that does one of the three following: changes spending by a certain amount over a specified time; changes revenues by a certain amount over a specified time; or changes the public debt limit by a certain amount. ‘Changes’ can include either an increase or a decrease; the directive will specify either ‘cut’ or ‘increase’. Current interpretation means that there can be a maximum of three reconciliation bills in a year (one each of the three changes mentioned above). The reconciliation process has some advantages in the Senate, mainly that it can be passed with a simple majority (as opposed to the 60 votes typically needed for more controversial legislation), debate is limited to 20 hours
  • Education Implications: Budget reconciliation instructions can be applied to any committee. In terms of policies that we track that could be subject to reconciliation instructions, they include: changes to the Affordable Care Act; cuts to Medicaid that translate into block-granting the program; changes/eliminations to the CHIP program; and more. We need to see how the House and Senate choose to apply the limited number of reconciliation directives they can apply. While ACA seems an easy target, concerns related to the phasing in of these changes to increase the likelihood that the focus could be on Medicaid of CHIP. 
  • Then What?: Once adopted, the proposal becomes law, and Congress will move forward to implement the adopted change, which in this scenario is all but certain to include funding cuts.
  • You can read more in this excellent summary from the Center on Budget and Policy Priorities. 



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