Senate Majority Leader John Thune (R-S.D.) on Wednesday maneuvered to avoid a direct clash with the Senate parliamentarian over whether the Congressional Review Act can be used to overturn California’s electric vehicle (EV) mandate.
Thune did so by setting up an elaborate series of procedural votes to allow the Senate to settle the controversial question.
Thune brought to the floor a joint resolution sponsored by Sen. Shelley Moore Capito (R-W.Va.) to disapprove of the National Highway Traffic Safety Administration’s rule on safety standards for hydrogen vehicles. That bill will serve as a vehicle to expand the reach of the Congressional Review Act (CRA).
With the procedural move, Thune threw a last-minute curveball at Democrats, who had expected him to first bring to the floor Capito’s other joint resolution, which has already passed the House, to repeal California’s EV waivers that prohibit the sale of new gas-powered light-duty vehicles by 2035 under the review act.
Democrats were planning to use the parliamentarian’s ruling that the EV waivers did not constitute rulemaking under the law to try to defeat the resolution.
But instead, Thune decided to move first to the Capito resolution on hydrogen vehicle standards to pose several questions directly to the Senate that would take the question of whether the EV waivers are eligible for CRA review out of the parliamentarian’s hands.
He did so because some Senate Republicans, including Sen. Susan Collins (R-Maine), were uncomfortable about the prospect of flat-out overruling the parliamentarian, Elizabeth MacDonough.
One GOP senator praised Thune for finding an “elegant solution” to what could have been a thorny political problem.
Thune argued the Senate had to weigh in because it was a “novel” procedural question.
“I believe that when the Senate is facing a novel situation like this one with disagreement among its members, it is appropriate for the Senate to speak as a body to the question,” he said on the floor.
He noted that the Senate voted last year on the question of whether a resolution that came to the floor qualified for fast-track treatment under the War Powers Act.
Senate Minority Leader Chuck Schumer (D-N.Y.), however, argued on the floor that the procedural shell game couldn’t obscure what he called a blatant end-run around the parliamentarian’s earlier ruling that California’s EV waivers do not qualify as a rulemaking eligible for review under the CRA.
He accused Republicans of “going nuclear” by breaking established Senate precedent.
Democratic Sen. Sheldon Whitehouse (R.I.) then stood up on the Senate floor to argue that Republicans were twisting the facts to claim that it’s a “novel” question to ask whether the Environmental Protection Agency (EPA) waivers constitute a rulemaking that could be overturned by congressional resolution.
“The facts at heart here are quite simple. The waiver at issue is not a rule and was never a rule. Thirty years of precedent and practice at EPA and in this body prove that,” he said.
Thune and other Senate Republicans, however, argued that it should be a matter for the Senate, not the parliamentarian to decide.
Republican procedural experts say that it was common practice decades ago to refer difficult procedural questions to the Senate to decide as a body, instead of relying on the parliamentarian for advice.
First Thune raised a point of order that “points of order are in order under the Congressional Review Act” to allow the Senate to vote on the question of whether the waivers provided by the EPA are eligible for disapproval under the CRA.
Schumer made a motion to table Thune’s point of order, but it failed on a 46-52 vote.
Then Schumer appealed the ruling by the Senate’s presiding chair, who happened to be Capito, submitting the question of whether points of order are allowed under the CRA.
That appeal was expected to also fail on a party-line vote.
A Senate Republican source familiar with Thune’s strategy said he will then offer a point of order to make the resolution disapproving of California’s EV mandate eligible for fast-track consideration in the Senate.
It is expected to pass.
Once that’s done, Senate Republicans are expected to pass Capito’s resolution to overturn the National Highway Traffic Safety Administration’s rule for hydrogen vehicles.
Then Thune will hold a vote on Capito’s second CRA resolution, the disapproval required to repeal California’s EV waivers affecting gas-powered vehicles.
Democrats won’t have an opportunity to ask the parliamentarian to rule that the resolution is not eligible for fast-track treatment under the CRA because the Senate will have already decided that matter by voting on the point of order raised on the hydrogen vehicle-related resolution.
Sen. Richard Blumenthal (D-Conn.) argued that the elaborate floor moves won’t change voters’ minds that the Senate ignored the parliamentarian to help the fossil fuel industry.
Blumenthal said Republicans wanted to avoid a vote on directly overruling the parliamentarian, but he declared “it fails to give them anything more than a false fig leaf.”
