In a recent blog post, we estimated that, as a practical matter, November 16 was the last day on which the Senate could pass a resolution of disapproval under the Congressional Review Act to override the CFPB arbitration rule. For the reasons explained below, we now think November 13 is a better estimate.
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. Including this past Friday (October 13), there have been 40 Senate “session days” since July 19.
Our November 16 estimate was based on two assumptions. First, we assumed that the Senate would be in regular session Monday through Thursday during the weeks it is not scheduled to be in recess. Second, we assumed that the Senate would be in pro forma session on each Tuesday and Friday of a recess week.
Since publishing our blog post, we discovered that the Senate’s calendar has not been consistent with our first assumption. During the first week of October, when the Senate was not scheduled to be in recess, it was in regular session Monday through Friday. The Senate’s next scheduled recess is November 10-12. Thus, if we now assume that the Senate will continue to be in regular session every weekday until November 10, the 60th session day for purposes of the CRA clock would be Monday, November 13.