The regulation election

Political prognosticators agree that the House of Representatives will stay under Republican control after the November elections. President Obama will obviously be president for two more years. Thus, regardless of what happens in the Senate, there is likely to be little policymaking on Capitol Hill. If the GOP carries the Senate, expect the president to frequently wield his veto pen; if not, then expect much of the same gridlock as the past two years.

Therefore, much of the policymaking that occurs in 2015 and 2016 will occur solely within the executive branch. Most prominently, this includes foreign policy. On the domestic front, one can expect an even more dramatic turn toward regulation as a tool for setting policy. To some degree, this has nothing to do with politics. The Obama administration will be merely finishing up regulatory initiatives (which often take years to complete) that it started years ago, and wants to wrap up before leaving office. However, stagnation in Congress also gives the president incentives to try and solve pressing policy issues with all the tools at his disposal, including regulation.

{mosads}This is where the election for control of the Senate takes on particular importance. The Republican-controlled House of Representatives has already signaled the type of laws that would be passed if the GOP controls both houses. Regulatory reform bills intended to make it harder for agencies to issue regulations would be passed. A Republican Congress may pass bills or use the Congressional Review Act to overturn individual regulations such as the Environmental Protection Agency’s (EPA) rules to curb greenhouse gas emissions.

These efforts, however, are all likely to be met with vetoes by Obama. And since no one is predicting that the Republicans will win a sufficient victory on Nov. 4 to assemble a veto-proof majority in either house of Congress, the vetoes would stand. It is thus tempting to assume that the election for control of the Senate will have little impact on regulatory policy. Such an assumption is likely to be incorrect.

While we can expect that few pieces of legislation will make it through Congress and be signed by the president, one exception is the annual budget. There will be a lot of rhetoric, possibly another government shutdown, and much negotiation, but eventually the next Congress will pass two annual budgets. A Republican-controlled Congress is much more likely to attach riders, provisions that bar federal agencies from taking certain actions, to that budget. During the 1990s, when Republicans controlled Congress and Bill Clinton was president, this technique was used by the Republican Congress to thwart regulatory initiatives.

The president of course can veto the budget if he is not happy with the riders that are attached to it. And for a few major regulations, such as the climate change rules by EPA, this outcome is likely (but not certain). However, each veto comes with a political cost for the president. It is certain that a Republican-controlled Congress will be able to attach riders barring the finalization of some regulations to a budget that is otherwise palatable to the president. This process will force President Obama, in his negotiations with Congress, to choose which regulations are worth a veto and which ones are not.

Along with delayed confirmation of judicial and other nominees, and the increased use of hearings to investigate and harass the administration, the ability to pass a budget with riders on it is likely to be one of the most consequential outcomes of the race for the Senate.

Shapiro is an associate professor and director of the Public Policy Program at Rutgers University and a member of the Scholars Strategy Network.