Why Scott Brown’s Victory Helps Climate Legislation

Really.  The debacle in Massachusetts may have turned the Democrats into a bunch of sniveling, spineless wimps — or simply reaffirm their identity as such — but it might actually help climate change legislation.

How?  A one-word answer: reconciliation.

A budget reconciliation bill cannot be filibustered: according to the Budget Act of 1974, the Senate is limited to 20 hours of debate on it.  It does not get rid of the filibuster because you cannot put everything in a reconciliation bill: only those items whose relationship with the budget is more than “merely incidental” qualify.

But one thing is clear: tax bills virtually always qualify, because by definition, they are centrally concerned with the budget.

Neither Waxman-Markey nor Kerry-Boxer would qualify.  But a refundable carbon tax, such as has been proposed by the Carbon Tax Center, clearly would.  Why does this matter?

Much of the debate about climate legislation has centered on how one would get all 60 Democrats, including coal state Senators and Joe Lieberman (whose central moral principle is the enhancement of the importance of Joe Lieberman), on board.

But if one pursues a carbon tax strategy through reconciliation, you don’t need 60 Democrats.  You only need 50 + one Joe Biden to break the tie.

Now that the Democrats have “only” a 59-41 majority, using regular order for anything is out the window.  The republicans have been quite clear that their fundamental goal is undermining Obama and the Democrats.

Once you have to go to reconciliation, then that give you more flexibility.  Yes, yes: conceivably, the Senate Dems could always have used this route.  But as long as they had 60, people could plausibly argue, “use regular order.  One more compromise will get [conservative Democrats] Ben Nelson and Blanche Lincoln on board.”  I hope by now it is blindingly obvious to all that nothing will get a Republican on board.  That makes reconciliation mandatory.  And climate legislation, at least in the form of a carbon tax, a little more likely.

There’s many a slip, as they say.  Using reconciliation means going through the Finance Committee, where Max Baucus and Kent Conrad always stand ready to screw things up.  But because of the fiscal and trade aspects of any climate bill, Finance was always going to be a player.

A touch of a glimmer of hope at the end of a very bad week.

Reader Comments

5 Replies to “Why Scott Brown’s Victory Helps Climate Legislation”

  1. Interesting idea. I’d still like to see Reid make the Republicans work a little bit to obstruct these solutions, rather than doing it for them. Do you think the Republicans really have the stomach to filibuster (rather than threaten to filibuster) single policy solution until the next elections? If so, wouldn’t that do long-term damage to their “brand?”

  2. Nemesis —

    Are you kidding? They haven’t suffered an iota of damage by blocking everything that comes down the pike. The press just won’t call them on it because that you force them to, you know, focus on policy and stuff. The GOP blocks everything, blames the Dems for getting nothing done, the Dems do nothing but whine, and the press focuses on Michael Jackson. It’s called democracy.

  3. I’d argue that while the Republicans are blocking a lot of stuff, a lot of the time they’re just threatening to. I wish Reid would force a filibuster and make them to put their mouths where there money is.

  4. Also, I wish I could learn to write in proper English. In any event, it’s come to my attention that both the New York Times editorial board and Stephen Colbert have come around to my way of thinking. Whoever said that idly demanding change by commenting on blogs didn’t change what other people idly demand was wrong.

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About Jonathan

Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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