Passing Green Laws in a Polarized Senate
New legislation will require threading a needle in the Senate.
How polarized is the Senate? A lot. Consider their voting records: Every Republican except one has an environmental voting score below 25%. Every Democrat but one has a score above 75%. That’s a walloping fifty point gap. Given this polarization, getting energy or environmental legislation through Congress will require tremendous finesse. That’s without even considering the House, where Nancy Pelosi will have to keep progressives on board for legislation that can hold the moderates in her narrow majority.
The complexity of passing environmental laws becomes even clearer if we look at the two mavericks. Republican Susan Collins from Maine has a score of 61%, which is almost three times more than the next most moderate member of her party. On the other side of the aisle, Joe Manchin from West Virginia has a lifetime score of 49%. His score is lower than Collins’s, which is the only overlap between the scores of the two parties.
Some legislation isn’t subject to filibuster and requires only a bare majority in the Senate. If Democrats win the two Georgia seats, they would have 50 votes plus Harris’s tie-breaking vote as Vice-President. This would mean they could pass such legislation if they get either Collins or Manchin on board — preferably Collins, because she’d support stronger legislation. Unfortunately, the exception from filibuster mostly applies to spending and tax legislation via the “reconciliation” procedure, so Biden would need strong bipartisan support for anything else.
Unless Democrats win both Georgia seats, Republicans will have the Senate majority led by Mitch McConnell. As majority leader, McConnell would then be able to stop legislation from getting to the floor even if the legislation has majority support. McConnell is likely to allow legislation to reach the floor only if it either has strong support from his caucus, or he thinks it’s necessary to hold onto key seats in the upcoming mid-terms, or if it’s attached to legislation he’s unwilling to block.
In short, in the most optimistic scenario, it may be possible for Democrats to pass taxing and spending bills relating to the environment with Susan Collins’s support. Otherwise, environment or energy legislation will require either broad bipartisan support or Democratic hardball with legislative riders.
This isn’t a reason to despair. Even during the Trump years, funding cleared Congress for climate and energy research, toxic chemical legislation, a public lands bill, and major military spending on renewable energy. With a Democratic President and a stronger hand in the Senate, Democrats should be able to do better than that. We may well see legislation, for instance, to make it easier to build the new transmission lines we need for renewable energy.
By and large, however, no matter what happens in Georgia, Biden is going to have to rely on his administrative agencies to get anything done. The extreme polarization in environmental positions in the Senate is what’s driving this situation. To make durable progress on climate change, we will somehow have to deal with that problem.
Oddly, although the electorate is polarized, Republican voters are more diverse in their views than their representatives in the Senate. That provides some grounds for hope that we may someday see a decline in polarization in the Senate.
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