Searching for Votes in the Senate
Q: Can the Dems scrounge up the votes to block anti-environment actions? A: Maybe.
Paul Ryan and Donald Trump have vowed to roll back many environmental protections. The Senate seems to be the one barrier against anti-environmental moves by Congress. How strong is that barrier?
The answer depends in part on whether the filibuster option remains open. If the filibuster rule remains intact, the Democrats’ 48 votes in the Senate give them plenty of leeway in halting anti-environmental initiatives, even if they lose several votes.
But there are some end runs around the filibuster under the Congressional Review Act (for overturning Obama regulations) and reconciliation bills. (It appears that the CRA only allows Congress to review rules issued after late May of 2016, so some important EPA rules should be exempt). In addition, we don’t know at this point whether the filibuster rule will survive, particularly if Democrats make aggressive use of it. So it’s worth looking to see where Democrats might be able to scare up an extra few votes to get to a majority. If the Democrats hold together as a block, they’ll need three extra votes from the other side of the aisle.
Obviously, there are people in D.C. who know a lot more about this than I do, both within the Senate and among environmental lobbyists. Still, it seemed worth exploring the prospects for a Senate “save” for the environment. As a first cut on this issue, I took a look at the League of Conservation Voters (LCV) scores for Senate Republicans. These are the Republicans who look most promising in terms of LCV scores:
Senator 2015 Lifetime
Susan Collins (R) ME 60% 65%
Lamar Alexander (R) TN 24% 20%
Rob Portman (R) OH 8% 20%
Shelley Capito (R) WV 4% 18%
John McCain (R) AZ 4% 21%
Chuck Grassley (R) IA 4% 20%
Lisa Murkowski (R) AK 4% 18%
The two most promising are clearly Collins and Alexander. Collins votes on environmental matters more or less like a moderate Democrat. Alexander’s lifetime score is the same as the remaining Republicans, but he stayed firm last year when the others caved in. The idea of scrounging up a third vote or even a fourth one doesn’t seem hopeless, especially if the House passes some really radical changes in environmental law.
Looking beyond information about their environmental stances, 538.org had a recent post about Republican Senators who are in general most likely to split from Trump. Collins, McCain, Murkowski and Portman are among the top 10 on that last, too. Capito is #14. Grassley is in the middle of the list, but his vote might be a possibility on renewable energy issues where Iowans have an economic stake. Lamar Alexander is lower on the list, making him less likely in general to defect from Trump, but his voting record in the past year on environmental issue may point in the opposite direction.
The idea of scrounging up a third vote or even a fourth one doesn’t seem hopeless, especially if the House passes some really radical changes in environmental law.
But there are some warning signs as well. Joe Manchin from West Virginia is the softest Democratic vote on environmental issues, and Heitkamp from North Dakota is in a similar position. They’re both high on 538’s list of Democrats who might defect to Trump. The others who are high on that list have better environmental records and are less likely to be a problem. So, at least on some issues, Democrats may need four or five Republican votes instead of three, which would be much tougher.
If a proposal to strip EPA of jurisdiction over greenhouse gases reaches the Senate floor and can’t be filibustered, Caputo, Manchin, and Murkowski would probably fade away. McCain (not to mention Lindsey Graham) at one point supported cap-and-trade. Graham and McCain ran for cover after 2008, but maybe they could be prevailed upon to step forward again to defend climate action. (Especially since McCain doesn’t really need to worry about reelection). Portman might stand up for EPA on this issue, or he might not. Murkowski is probably not going to be there, although perhaps growing concern in Alaska about the impact of climate change could sway her. Finally, it’s possible that a state that produces a lot of natural gas might be ambivalent in terms of climate regulations that restrict the use of coal, though getting those votes seems like a long-shot. In short, blocking a congressional rollback on climate change rules could be a heavy lift without the help of a filibuster, but it’s not necessarily impossible.
Thus, without the help of a filibuster, the Senate is not necessarily a reliable safeguard for Obama’s rules. But even without the filibuster, it seems likely that there are enough votes to block radical legislative changes in our environmental statutes and perhaps congressional overrides of some of the Obama rules.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more