Toomey seeks GAO's help in reviewing agency guidance

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WASHINGTON — Sen. Pat Toomey, R-Pa., on Friday sent letters to the Government Accountability Office asking for a ruling on whether two instances of bank regulatory guidance each constitutes a rule for the purposes of the Congressional Review Act.

The Congressional Review Act allows Congress to reject rules finalized within the prior 60 legislative days. In the early days of the Trump administration, Republicans in Congress have already used the statute to roll back certain regulations, including environmental rules. It takes only a simple majority of lawmakers to vote to reverse a rule.

Although the legislative clock for Congress to roll back any banking rules finalized at the end of last year has almost run out, Toomey has sought to include regulatory guidance among the policies Congress can target. In a speech Thursday, Toomey said the congressional review statute "is very clear” that it can also be used for guidance and letters issued by the independent regulators.

Toomey asked the GAO to rule on two pieces of guidance from 2013 — the Consumer Financial Protection Bureau's indirect auto lending bulletin and the prudential bank regulators' guidance on leveraged lending. A determination that they are rules for the purposes of the statute could mean the regulators have to resubmit the policies to Congress for review, resetting the 60-day clock.

In both the case of the CFPB bulletin and the regulators' guidelines on leveraged lending, Toomey said, "the Guidance appears to be generally applicable and prescribes detailed policy."

"For these reasons, I respectfully request that you evaluate whether or not the Guidance is a 'rule' under the CRA," he wrote in the letters.

Todd Gaziano, executive director and a senior fellow in constitutional law at the Pacific Legal Foundation, said a GAO determination in Toomey's favor could open the door to Congress' reversing agency policies.

“If he gets a GAO opinion, then that is pretty helpful to him in arguing that the agency shouldn’t enforce it until it is sent up to Congress and it should have been sent up and he thinks there is a good chance that when it is sent up, he and his colleagues can get the necessary bare majority in each house to kill it,” Gaziano said.

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