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Regulatory: Blocking Minorities in the Senate

The major regulatory policy battles of 2011 are following a pattern that's become familiar when each party controls one body in Congress. The House of Representatives has approved bills that would delay or overrule agency regulatory initiatives. In the Senate, leadership has cobbled together blocking minorities of 40 votes to filibuster repeal legislation to death. These deregulatory measures, however, can be revived on multiple occasions as other "must pass" legislation is considered. The Obama Administration may well have to make repeated commitments to cut spending to preserve the impasse in the Senate.

For example, the Durbin Amendment to the financial reform bill requires the Federal Reserve Board to adopt regulations that will limit the interchange fees banks that issue debit cards can charge merchants on a transaction. The proposed implementing rule would reduce these fees by 75 percent, transferring $14 billion per year from banks to merchants. The Federal Reserve was unable to meet the tight statutory deadline for issuing the rule, however, and opponents of the regulation have introduced a bill that would delay its effective date by two years, until after the next election. To date, Senator Durbin has been able to hold together enough votes to block the measure, but the Majority Leader will not schedule the extension bill for a vote until he is certain that the filibuster will succeed. Opponents of the Durbin Amendment would have one remaining option: to try to block the rule under the Congressional Review Act, which requires agencies to submit to Congress for potential disapproval each "major" rule (those with an annual impact of $100 million). Under Senate rules, a motion to disapprove an implementing regulation under this statute (which has been successfully invoked only once) cannot be filibustered.

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John Cooney

John F. Cooney is a partner in the Washington, D.C., office of Venable.

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