The Process for Using the Congressional Review Act to Protect Net Neutrality, Explained


Previously, we’ve told you about how Democrats can use the Congressional Review Act (CRA) to fight to protect net neutrality on the federal level, and about how states and localities can resist Trump’s attempt to destroy the foundation of the open internet. In this document, we’ll give you more specifics on what the fight will look like in the Senate and in the House, including what the timeline is in each chamber. Net neutrality ended on June 11, but Congress can still undo that if they pass the CRA resolution of disapproval.

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The FCC started the process by formally publishing the regulation

The CRA (which you can read here) stipulates that members of the House and Senate can only submit a resolution of disapproval beginning on the date that the new rule is “received by Congress and ending 60 days thereafter (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress).”

Now that the FCC has submitted the “Restoring Internet Freedom Order” to Congress and published it in the Federal Register (which happened on February 22), a 60-day clock has started. Within these next 60 days, members of the House and Senate must each submit a resolution of disapproval in their respective chamber. (These 60 days don’t include days that one chamber is in recess; it’s only days Congress is working that count.) In the CRA, this time is known as the “initiation period.”

Luckily, Democrats have net neutrality champions in each chamber who have already stepped up. Senator Ed Markey from Massachusetts and Representative Mike Doyle from Pennsylvania’s 14th District have said they will introduce a resolution of disapproval as soon as the CRA permits. After that, the resolution of disapproval will be referred to the committee in each chamber with jurisdiction. In the Senate, that’s the Committee on Commerce, Science, and Transportation (the “Commerce Committee”); in the House, that’s the Committee on the Judiciary (or the “Judiciary Committee”).

The fight in the Senate is over

On May 16, 2018, the Senate voted 52-47 to overrule Trump's FCC and restore net neutrality protections. That means that the fight to protect the free and open internet has moved to the House.

The fight in the House

After 30 days: In the House, there is no special mechanism for the minority to force a vote. Instead, House Democrats will have to get a majority of Representatives to sign a “discharge petition” 30 days after the resolution of disapproval is referred to the Judiciary Committee. Since there are currently 429 Representatives in the House, that means that even if all 193 House Democrats sign on (over 170 have so far), they will still need 22 House Republicans to sign the petition. Discharge petitions are rarely successful—which is why protecting net neutrality through Congress is a serious uphill battle. (Read our explainer on discharge petitions here.)

A few weeks after the petition: If the motion to discharge passes, it can be followed immediately by a vote on the underlying legislation—the resolution of disapproval itself. Because it would require a majority of the House to agree to get to this point in the first place, it is extremely likely that this vote would pass if the discharge petition is successful.

If the CRA doesn’t work: Pass a new law protecting net neutrality

Once both the House and Senate pass a resolution of disapproval, it would go to Trump’s desk for signature. That’s when the hardest part of the fight starts.

Trump will almost certainly veto the resolution of disapproval, which would send it back to Congress. Congress can override a presidential veto if two-thirds of each chamber votes to do so (286 members of the House and 67 Senators), but despite the overwhelming public support for net neutrality, it would be unlikely that that many Republicans stand up to Trump.

That’s why, this November (and in 2020 when it’s time to elect a new president), we need to elect Democrats on the federal, state, and local level who pledge to use their power to protect the open internet. Once progressives retake power in the White House, on Capitol Hill, and in state capitols nationwide, they’ll be able to pass laws protecting net neutrality instead of relying on administrative actions that can be overturned later. You can find more information about how to turn your constituent power into electoral power at indivisible435.org.