Despite the filing of a lawsuit last Friday by a number of industry trade groups seeking to block implementation of the CFPB’s arbitration rule, we remain hopeful that the Senate will pass a resolution of disapproval under the Congressional Review Act to override the rule. There has been considerable confusion about the Senate deadline for passing a CRA resolution so we took a closer look.
Under the CRA, to be eligible for the “fast track” procedures for Senate consideration that preclude a filibuster and allow the Senate to pass a resolution of disapproval resolution with a simple majority vote, the Senate must act on the resolution during a period of 60 Senate “session days” which begins on the date the rule is received by Congress or published in the Federal Register, whichever is later.
Since the Senate received the CFPB’s report on the arbitration rule on July 13 and the rule was published in the Federal Register on July 19, the 60 Senate “session days” for purposes of the CRA clock began on July 19, 2017. As of this past Friday (September 29), there were 33 Senate “session days” since July 19.
Accordingly, assuming that the Senate will be (1) in session Monday through Thursday during the weeks it is not scheduled to be in recess, and (2) in pro forma session on each Tuesday and Friday of a recess week, the 60 “session days” would end on November 21. However, since November 21 falls during the week when the Senate is scheduled to be in recess for Thanksgiving, a vote is unlikely to take place during that week. Thus, based on the foregoing assumptions, the last day for a Senate vote, as a practical matter, would be November 16.