Providing for Congressional Disapproval Under Chapter 8 of Title United States Code, of the Rule Submitted By the National Highway Traffic Safety Administration Relating to ``Federal Motor Vehicle Safety Standards; Fuel System Integrity of Hydrogen Vehicles; Compressed Hydrogen Storage System Integrity; Incorporation By Reference''

Floor Speech

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Mr. THUNE. Madam President, we are facing a novel situation here in the Senate. For the sake of my Democrat colleagues, who seem more than a little confused as to what is going on here, let me just review the situation.

We have received from the House joint resolutions of disapproval that meet all the statutory requirements under chapter 8, title 5, of the U.S. Code, the Congressional Review Act.

In the past, the Senate has treated any such joint resolution as being eligible for expedited floor consideration procedures prescribed under the Congressional Review Act. But here is the twist: Senate Democrats claim that we can't consider these resolutions under these Congressional Review Act procedures because the rules addressed in the resolutions in question are not, in fact, rules.

Now, the rules in question, the California waiver rules, were submitted to Congress's rules, which has always been all the Senate needed to consider something as eligible for consideration under the Congressional Review Act, and they are clearly rules in substance given their nationwide impact and scope. But, in an unprecedented move, the Government Accountability Office has inserted itself into this situation and declared that these rules submitted to Congress by the EPA as rules are not, in fact, rules.

Now, for years, the Senate has turned to the Government Accountability Office, the GAO, to determine if something not submitted by an Agency is actually a rule that should have been submitted to Congress as such. That is not part of the Congressional Review Act statute, but the Senate has relied on GAO for this to prevent Agencies from flouting the law and ignoring Congress's statutory right to review Agency rulemaking. In other words, GAO has acted as a failsafe to ensure Congress's rights are protected from encroachment by the executive branch.

That is not the situation we find ourselves in today. In fact, it is the inverse. The situation we are facing today is an Agency submitting to the Senate actions that the Agency says are rules and GAO, for the first time in history, inserting itself into the situation and offering its own opinion that the rules in question are not, in fact, rules.

Well, so what do we do about this? 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--something the Senate does when questions over application of the rules arise.

For example, just last year, a Republican Member of the Senate brought a resolution to the floor under a fast-track procedure, the War Powers Act, and a Democrat Member of the Senate argued that it was not entitled to those procedures. He then made a point of order to that effect, and the Chair submitted the question to the Senate, and the Senate voted on what qualifies for that fast-track procedure. That is what we are doing today.

Nobody at the time cried nuclear. Nobody said the Democrat Member was blowing up the Senate. In fact, most Members probably don't even remember the situation because it was just the Senate doing what the Senate is supposed to do, and that is voting on how to apply the rules when faced with a new situation.

I think at this point it should be abundantly clear that what we are doing has nothing to do with the legislative filibuster. But while I would love to think that reality will prevail, I fully expect Democrats to continue to misrepresent the situation, and I think there are probably multiple reasons for that.

One is that I think a lot of Democrats support an electric vehicle mandate and are perfectly happy to allow California to set an EV mandate for the whole country. In fact, I think they are somewhat frantic at the prospect of losing this ``Green New Deal'' policy.

Two, I suspect Democrats are trying to use the situation as cover to justify abolishing the filibuster next time they are in charge. I think they think that they can make dismantling the Senate filibuster a lot more palatable by claiming--however mendaciously--that Republicans attacked it first.

I would love to believe--I would love to believe--the Democrats have suddenly come to the realization of the importance of the legislative filibuster no matter how misplaced their concerns would be in this particular instance. I think there is perhaps no Senate rule today that does more to preserve the character of the Senate as developed by our Founders, and there is nothing I would like more than to see Democrats recognize this.

But despite the rank hypocrisy the Democrats have displayed by embracing the use of the filibuster this Congress repeatedly after campaigning to overturn it mere months ago, I suspect that their newfound enthusiasm for the filibuster is situational only--something to be used when it helps them and to be destroyed when it doesn't.

As I said, I strongly suspect they are attempting to use the situation as cover for destroying the filibuster the next time they are in power; hence the misrepresentations and hysteria.

I can't control what Democrats do the next time they take the majority here in the Senate, although if they attempt to abolish the legislative filibuster and destroy the institution of the Senate, I can safely promise to fight them on it tooth and nail. But I can say this: While Republicans are in charge, the legislative filibuster will remain in place, and you can take that to the bank.

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Mr. THUNE. I yield back all time.

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Mr. THUNE. Madam President, I make a point of order. The points of order are in order under the Congressional Review Act, given sections 802(d)(1), 802(d)(2), and 802(d)(4) are in conflict with each other.

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Mr. THUNE. Vote on Motion to Table Appeal

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Mr. THUNE. Mr. President, for the information of Senators, for the balance of the evening, we are going to confine votes to 15 minutes in duration.
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Mr. THUNE. Madam President, I make a point of order that joint resolutions that meet all the requirements of section 802 of the Congressional Review Act or are disapproving of Agency actions which have been determined to be rules subject to the CRA by a legal decision from GAO are entitled to expedited procedures under the Congressional Review Act.
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