The chess game of climate politics — or, more specifically, of putting a binding limit on climate-changing pollution from dirty fuels — is at a moment of great uncertainty. President Obama continues to push for putting a price on carbon, and Senate action may come in July or August. But there’s every chance that a U.S. climate law (which would trigger Canadian action and advance Northwest sustainability more than any other single thing) will prove a bridge too far in 2010.
So it’s a good time to think through contingencies, to identify paths on which the movement for a fair and effective climate/clean-energy policy can still travel forward, even if the Senate fails to act this year. In the end, the shortest path may cross the thicket of Senate rules reform. Perhaps surprisingly, that passage may depend on the persuasiveness of the junior senator from New Mexico — and how much help he gets from Northwest senators.
(Skip ahead, if you’ve been following climate politics.)
The last three years brought rapid progress toward a comprehensive climate policy. British Columbia passed a carbon tax shift in 2008. The Northwest states joined British Columbia and others in negotiating, but not yet enacting, a regional cap-and-trade system called the Western Climate Initiative. The U.S. House passed a comprehensive cap-and-trade bill in June 2009. The U.S. Senate is expected to take up its version of the same soon. The absurdly exaggerated influence of small states in the U.S. Senate, plus the historically accidental supermajority rules under which the Senate operates, militate against sweeping reform there in any area of public policy. When the reform in question would target the petroleum and coal industries, which are political goliaths in Alaska, Montana, Wyoming, and many other small-population states, the prospects shrink further. (As I’ve argued, this state of affairs does not reflect a lack of public support for a clean-energy revolution in the United States. It’s a fluke of history.) But the Senate may pass a climate bill yet. It may do so this summer, before mid-term elections lengthen the odds for strong action.
It may, but it may not. And it’s important to have back-up plans. If the Senate fails to act, or passes a flawed bill, what should Northwest champions of limiting climate-disrupting pollution do? A number of options present themselves, all worthy steps. The Western Climate Initiative may take center stage again. Or, if California voters defeat the initiative to repeal its climate laws, strong leadership may emerge from the coastal states and British Columbia. Shocked by BP’s Gulf oil gusher, ocean-fronting states are especially likely to see the need for a clean-energy transition. Any or all of these states might also join the Northeast states’ Regional Greenhouse Gas Initiative — an already functioning carbon cap-and-trade system that currently covers dirty, fossil-fueled power plants in 10 Northeastern states. Or maybe Oregon and Washington will adopt carbon taxes, perhaps harmonized with British Columbia’s, to help fill their gaping budget holes.
Maybe. But obstacles stand in the way of each of these strategies. For just one example, the Washington state legislature refused this year to impose an increase in the hazardous substances tax that would have raised gasoline prices by about two pennies a gallon. It did so even though the proceeds would have gone to preventing the spread of waste oil and other polluted runoff in Puget Sound and other bodies of water. Convincing the legislature to enact a BC-style carbon tax (that is, starting at the equivalent of 10 cents a gallon and rising in steps to 30 cents) will be a challenge.
Playing to win
Our movement for a climate-friendly future will have to pursue one or more of these options if Kerry-Lieberman fails, because the physics of climate change are unforgiving, and the clock is running. In our circumstances, the only rational game plan is to play to win: not to seek modest, incremental objectives but to pursue policy goals that, even if they’re longer shots, will drive dramatic progress. We need victories commensurate with the flaws of our energy economy. At the same time, I’m not arguing for a hopeless, quixotic agenda.
We need a game plan that is both ambitious and achievable.
Which brings me to the Senate’s filibuster rule — the historically accidental rule that makes the Senate effectively a supermajority legislative body with a 60 vote threshold. Busting the filibuster is the ultimate playing-to-win plan: a Senate that operated by majority rule would be able to pass a muscular climate law tainted by fewer handouts to special interests. If the United States had a majority-ruled Senate, something like Waxman-Markey or Kerry-Lieberman would already be the law. (Oh, and a majority-ruled Senate would also be able to pass all manner of other needed legislation.)
I know, I know. I just said that I am not arguing for fools’ errands, and here I am talking about rewriting the rules of perhaps the most hide-bound and exclusive club in the world.
Senate rules reform is, I admit, a long shot. In fact, it’s a very long shot. By conventional means, rules reform requires 67 votes in the Senate, an impossible margin in today’s polarized politics.
But there is another way, an unconventional way. It’s still a very long shot, but it is neither hopeless nor quixotic.
It’s like Luke Skywalker firing a torpedo into the exact right portal in the Death Star, in Star Wars. Just as Luke knew exactly where to aim, with which weapon, from what approach, and just as Luke had a fiercely dedicated army at his back, we have open to us a strategy for blowing up the filibuster — a sequence of precise parliamentary steps employed at exactly the right time, with exactly the right alliance of forces assembled. (We won’t even need guidance from the disembodied voice of Obi Wan Kenobi.)
In the role of the young Luke Skywalker in the filibuster rebellion is Tom Udall, New Mexico’s junior senator and the son of John F. Kennedy’s Interior Secretary Stewart Udall (which, by the way, seems a lot better than being the son of Darth Vader). Since reaching the Senate in 2009, he has been speaking about the need to revise the Senate rules, steadily building the case for reform and gathering supporters to the cause. Other key parts would be played by the vice president, as presiding officer in the Senate, and the majority leader — who would need to assemble a simple majority of Senators to support reform. Together, they could end the filibuster, make the Senate a majority-ruled institution, and clear the path to a national climate law (among other things).
The game plan: Constitutional option
According to Sen. Udall’s plan, the new Senate that convenes in January 2011 will exercise its constitutional prerogative to adopt rules for its own procedure by a majority vote. The U.S. House adopts its rules at the beginning of each Congress, but the Senate’s tradition is to call itself a continuing body, with rules that carry forward from one Congress to the next. The current filibuster rule has not changed since 1975. Consequently, exactly two living Senators ever voted for the filibuster rule under which the Senate works. (Or, actually, doesn’t work, as this damning study from the Center for American Progress [PDF] makes abundantly clear: holds and secret holds on nominations and legislation plus filibuster threats so hogtie the Senate that it never even considers hundreds of House-passed bills, nor does it move budget bills through its own intended procedure.) All senators are captive to rules, such as the filibuster, laid down in the distant past.
At the beginning of the next Congress, in January 2011, Sen. Udall will move to adopt the Senate’s rules by simple majority. Three past vice presidents, sitting as the Senate’s presiding officers, have upheld the principle that the Senate has authority to take such action. If the vice president rules the motion acceptable (ignoring the advice of the Senate parliamentarian), and a majority of Senators support rules reform, the job can be done. It could then eliminate the filibuster, “holds,” and any other unproductive rules by writing modern, efficient rules. Between now and then, Udall hopes the Senate will agree on a set of rules reforms that have majority support.
When the authors of the Constitution believed a supermajority vote was necessary, they clearly said so. And while the Constitution states that we may determine our own rules, it makes no mention that it requires a supermajority vote to do so. In addition, a longstanding common law principle, upheld in Supreme Court decisions, states that one legislature cannot bind its successors. To require a supermajority to change the rules, as is our current practice, is to allow a Senate rule to trump our U.S. Constitution and bind future Senates. This should not be.
The need to reform our rules is not a partisan issue — Senators of both parties have spoken out against the inability of the Senate to amend its own rules. Sen. Ted Kennedy … 35-years-ago said of the need to reform the rules, “the notion that a filibuster can be used to defeat an attempt to change the filibuster rule cannot withstand analysis. It would impose an unconstitutional prior restraint on the parliamentary procedure in the Senate … ” And, as my esteemed colleague from Utah, Sen. Hatch, stated in a National Review article in 2005, “both conservative and liberal legal scholars … agree that a simple majority can change Senate rules at the beginning of a new Congress.”
(Sen. Udall has also made his case here and in speeches and videos linked here. If you’re as interested in this topic as I am, I recommend the transcript and two hour video of this March 2010 Center for American Progress panel. No, I’m not kidding.)
The end game
A conventional win for Kerry-Lieberman is still possible in 2010, but if it proves elusive, climate champions would do well to change strategies. Winning majority support for Sen. Udall’s Constitutional Option will require an all-out campaign. Unlike Luke Skywalker, Sen. Udall doesn’t have the force, so he’ll need all the help he can get.
Fortunately, support is already building. In March, Senate Majority Leader Harry Reid pledged to take a hard look at rules reform in the next Congress. Other senators have been stepping up, as the Washington Post has reported: Sen. Tom Harkin (D-Iowa) suggested trimming the number of votes required to end a filibuster; Sens. Ron Wyden (D-Ore.) and Chuck Grassley (R-Iowa) have suggested a way to stop “secret holds.” Sens. Michael Bennet (D-Colo.) and Frank Lautenberg (D-N.J.) propose a way to make it tougher for any sole legislator to lock up business in the chamber. Any of these reforms would likely require Udall’s Constitutional Option — that is, rules reform by majority vote — to win passage. The Senate Rules Committee held hearings in April on rules reform and in May on filibuster reform. The May hearings included testimony (video) from former Vice President Walter Mondale on how he employed the Constitutional Option to force rule changes in 1975.
The American public is ahead of the Senate: it wants the filibuster gone immediately. But rallying the Senate to use the Constitutional Option will require mobilizing enough of that public that senators feel the courage to throw off tradition and embrace majority rule.
So far, senators from the Northwest have yet to announce their support for rules reform. Considering how much the Northwest stands to lose from climate change, and gain from a clean-energy economy, they would do well to support Sen. Udall. And we would all do well to encourage them.