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