What the Georgia Senate wins do (and don't) mean for climate policy

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Y’all, before we get started today I have to share the funniest
thing that’s ever happened.


You know how I went on MSNBC a few weeks ago to talk about how
Joe Biden should do everything at once? And you know how former
Saturday Night Live comedienne and all-around awesome person
Leslie Jones frequently tapes herself watching MSNBC and
commenting on people and their rooms? Well get a load of this:


Lol. It’s even funnier to read the comment thread beneath the
tweet. Apparently I look like all the white bearded guys rolled
into one.


Anyway. Good times. On to business!


I’m working on a longer post about electricity transmission (join
the preliminary discussion), but the news cycle has intervened.
To wit: on Tuesday, Democrats officially won both the Senate
runoffs in Georgia. Joe Biden will have a Democratic Senate!


This news has Forest shaking with excitement.


So before we get to transmission, let’s talk about what these
Senate wins mean, in general and specifically for clean-energy
policy. I’ll end with a little bit of advice for the Democratic
Congress, which is the same advice I gave Biden: go for it.


Control over the Senate matters


Democrats have 50 senators (well, 48 plus Independents Bernie
Sanders and Angus King) and Vice President Harris casts the
tie-breaking vote, so technically they have a majority in the
Senate — albeit the slimmest possible majority.


But in the US Senate, the one-vote difference between being in
the minority and being in the majority is a chasm. Just ask
incoming Senate Minority Leader Mitch McConnell.


Most importantly, the Senate majority leader controls which bills
come to the floor. McConnell was forever refusing to bring bills
to a vote unless he had the entire GOP caucus behind him — even
bills with enough bipartisan support to pass. It was an
incredibly effective weapon to suppress and obscure the
Democratic agenda. New Senate Majority Leader Chuck Schumer will
be able to control the tempo and focus now.


Secondly, Senate committees will now be chaired by Dems, who can
choose what to hold hearings on, and when.


Thirdly, this is going to make it much easier for Biden to get
his appointments confirmed by the Senate, which is a huge relief
— those fights would have drained his attention and political
capital. The day after the election, Biden announced that he
would nominate Merrick Garland for attorney general. Ha ha, suck
it, Mitch.


Fourthly, if Dems can maintain their unity (which is never a
given), they can begin populating the federal bench with
competent progressive judges to offset the incompetent
reactionaries McConnell has been cranking out. And if Justice
Stephen Breyer should choose to retire [makes the sign of the
cross] they will have an opportunity to get a solid progressive
on the Supreme Court.


Losing the Senate would have been a disaster for Dems. Congress
would have passed nothing, leaving Biden virtually alone to
accomplish everything his coalition needs to hang together in
2022 and 2024.


Instead they have a narrow majority in the Senate to match their
increasingly narrow majority in the House. So it is a
non-disaster. That said, it’s not going to lead to progressive
legislation.


A 50-50 Senate will be owned & operated by Joe Manchin


Pre-November, Democrats were pretty high on election optimism —
smoking some bad polls, as it turns out — and there was talk of a
sweeping, New Deal-esque agenda, beginning with aggressive
democracy reform and moving quickly into climate change. (Biden’s
published plans constituted the most progressive agenda any
Democratic presidential candidate has run on in decades.)


That was all premised on the idea of Democrats winning 52 or 53
seats in the Senate. And if we’re being honest with ourselves,
even that wouldn’t have been nearly enough of a margin for Dems
to pass the kind of agenda Biden ran on.


But with only 50 seats, Democrats will need unanimity for every
move they make. Republicans will be united in obstructionism. It
is what they know best; it is where they shine. There are only a
few Republican senators who even pretend to be “moderate” any
more — Susan Collins (ME), Lisa Murkowski (AK), and Mitt Romney
(UT), basically — and even if one or two Republicans can be
picked off for a given vote, that’s not enough to fully offset
losing conservative Dems like Joe Manchin (WV, now chair of the
Senate Energy and Natural Resources Committee), Kyrsten Sinema
(AZ), and Jon Tester (MT), plus Independent Angus King (ME).


Basically, the rightmost handful of Dems in the Senate will be
the narrow aperture through which all legislation must pass, and
as such, they will have almost total veto power over every part
of the agenda. They will decide what gets through.


Manchin does not want to pass Medicare for All or a Green New
Deal. He doesn’t even want to pass Biden’s actual climate plan.
He doesn’t want to do anything big at all, which he has made very
clear:


Senator Joe Manchin III of West Virginia, the most conservative
member of his party in the Senate, has a message for fellow
Democrats hoping to capture the majority and quickly begin
muscling through legislation to bring about sweeping, liberal
change: not on his watch.


Most importantly, Manchin doesn’t want to get rid of the
filibuster, and he’s not alone in that. Without 50 votes to scrap
it, the filibuster stays, which means no major legislation will
pass. No more Covid relief bills. No democracy reform bill. No
climate bill. No health care bill. Nothing, period, full stop.


(I cannot stress the point enough: there is no significant
legislation in the universe for which 10 Republican senators will
cross over to vote with Dems, save perhaps defense spending
authorization. Keeping the filibuster means deliberately taking
major legislation off the table.)


That doesn’t mean there’s no hope for clean energy in the new
Congress, though.


Opportunities for climate progress


I’ve already written about all the things Biden can do using
executive authority alone. All of that is still on the table,
though as we will see below, it is somewhat complicated by the
Georgia development.


But what about Congress?


There is at least one place where Dems could get substantial
clean energy legislation passed.


Budget reconciliation


I wrote a long piece on reconciliation last year, which I
recommend. (Everyone needs to study up on this!) It’s a bit
difficult to nail down, because the rules governing it are not
statutory but adopted rules of the Senate, which can be changed —
either at the beginning of the session or on a case-by-case
basis. So reconciliation is, in many ways, whatever the Senate
wants it to be.


Budget reconciliation was originally conceived of in modest
terms, as a way for the Senate to finalize and work out any
discrepancies in the federal budget for the year. Unlike normal
legislation, it cannot be filibustered, so it requires only a
majority vote.


As normal legislation has become more difficult, both parties
have increasingly turned to reconciliation to pass their
priorities. If I may quote my own story:


In an age of partisan gridlock, the boundaries of
[reconciliation’s] use have been pushed by both parties. “As
polarization has made it harder to legislate under regular
order,” says Molly Reynolds, a congressional scholar at the
Brookings Institution, “the pot of gold at the end of the
reconciliation rainbow has become more and more valuable as a way
to pursue party-defining achievements.”


But reconciliation is not a get-out-of-jail-free card. It can’t
be used for just anything. Quoting myself again:


The big and most obvious limitations are that a budget
reconciliation bill is typically only passed once a year, cannot
create or change regulations, and cannot create or direct any
discretionary spending (things like research, defense, and
environmental protection). It can only mess with mandatory
spending or the tax code.


Within that basic framework, the biggest limitations are imposed
by the “Byrd Rule,” introduced by then-Senate Minority Leader
Robert Byrd in 1985 (and subsequently incorporated into the
[Congressional Budget Act] in 1990). He wanted to prohibit
“extraneous” measures in reconciliation bills. He defined as
extraneous any measures that [quoting Vox’s Dylan Matthews]:
“change Social Security; don’t change the overall level of
spending or revenue, or where such a change is merely
‘incidental’; increase deficits outside the 10-year budget
window, and/or are outside the jurisdiction of the committee
recommending them.” All reconciliation bills receive a special
analysis to see if they abide by these restrictions, a process
known semi-affectionately as a “Byrd bath.”


This set of restrictions creates a kind of conceptual puzzle into
which reconciliation policies must fit. They must materially
affect spending or revenue, but they must balance out over the
budget window (typically 10 years). Any new spending or tax
expenditure must be paid for within that window.


So what kind of clean energy policy can fit through this
reconciliation process? The most obvious place to look is at
measures that directly affect the budget: a refunded carbon fee,
clean-energy tax credits and RD&D investments, infrastructure
investments, and the like. Anything that spends money or charges
fees.


A variety of mandatory spending programs — think Medicare,
Medicaid, food stamps, and unemployment benefits — could be
tweaked to support a just transition away from fossil fuels. A
Green Bank (or an infrastructure bank with a green focus) could
be established to make ongoing clean-energy investments.


There’s also some thinking underway about how to tweak regulatory
programs so that they work via the budget and thus could pass
reconciliation. For instance, there are several ways that a
national clean-energy standard to decarbonize the electricity
sector by 2035 could be adapted to reconciliation. (More on that
in a post coming soon.) But it’s a lot of work, translating
regulations to budget measures, and there are a lot of
regulations needed.


In theory, the Dem majority could vote to suspend or change
reconciliation rules for particular measures like democracy
reform. If challenged by the Senate parliamentarian who rules on
these matters, they could simply vote to override. But it’s not
clear why that bit of procedural radicalism would be any more
congenial to Manchin than ditching the filibuster.


Total Democratic unity is almost certainly going to be required
to get any ambitious reconciliation bill passed (remember, other
Dem interest groups also want their priorities included;
Republicans are going to hate these bills), so once again,
Manchin will be the gatekeeper. That will mean, among other
things, that carbon capture, utilization, and storage (CCUS) gets
lots of money, along with a bunch of other stuff greens don’t
like.


Nonetheless, budget reconciliation is likely the biggest bite
Dems will get at the apple, and they’ll get at least two before
the 2022 elections.


The Congressional Review Act


Trump did an enormous amount of regulatory damage in his four
years and Biden’s administration could easily spend four years
cleaning it all up. It could use some help.


Helpfully, there’s a law called the Congressional Review Act. I
wrote a piece about it in (good lord) 2011 that has some
background. Quoting myself yet again:


The CRA is a law Newt Gingrich got passed back in 1996. It says
that within 60 days of a regulation being passed by the executive
branch, a majority in both houses of Congress can vote to nullify
it. (It can’t be filibustered, so you only need a majority in the
Senate, not the usual 60.)


At the time, the law was rarely used, because the circumstances
in which it could possibly work are narrow. Any bill has to be
signed into law by a president, and presidents don’t want to
nullify their own administration’s regulations, so a president is
only likely to sign a CRA that nullifies what the previous
president did in the last 60 days of their term in office. And
that new president needs both houses of Congress to be controlled
their party as well.


It doesn’t seem like it ought to happen much, and hadn’t until
Hillary Clinton lost to Trump and Republicans took both houses in
2016. Republicans went on an immediate deregulatory bender,
nixing 16 rules Obama passed in his last 60 days.


Now it’s happened again: Trump lost to Biden and Democrats took
both houses. So Dems can use the CRA to nullify everything Trump
did in his last 60 days, with the stroke of a pen.


And Trump has done a lot in his last 60 days. ProPublica has a
special project devoted to tracking all the last-minute
regulatory changes Trump’s administration has pushed (and is
pushing) through. There’s a short article in The National Law
Review about how best to use the CRA. Over at Morning Consult,
Lisa Martine Jenkins has a nice chart covering the various ways
that Dems might overturn Trump regulations, including by using
the CRA.


Among the CRA’s top targets: the EPA’s odious “secret science”
rule, which would prohibit the agency from considering a huge and
pivotal body of studies on public health; the EPA’s twisting of
cost-benefit analysis to ignore most of the benefits of air
pollution rules; DOI’s recent leasing of Alaskan Arctic land for
oil and gas drilling; the recent assault on the Migratory Bird
Treaty; and many more.


Democratic wonks have been tracking the Trump administration
closely and stand ready to write a comprehensive CRA bill. It
should (and likely will) be a top priority for the new Congress.


Uncertainties abound


Roughly 100% of my political prognostications in the last five
years have proven laughably wrong, so I’m not even going to
pretend to predict what course the next few years will take. As
the last few days have demonstrated yet again, anything can
happen.


But there are a few particular strands I’ll be keeping my eye on.


There’s at least some chance that Manchin is just positioning
himself on the filibuster. Other filibuster supporters like Ron
Wyden (OR) have recently said that, while they don’t want to get
rid of it, they aren’t simply going to let Republicans block
everything again. There’s some chance that, if Democrats lead
with a democracy reform bill and Republicans block it, Wyden,
Manchin, and other Dems could be persuaded to suspend the
filibuster on a one-time basis, or reform it — say, so that
senators once again have to conduct “talking filibusters,”
appearing on the floor rather than simply vowing to filibuster
through a press release.


Another wrinkle is that having a Democratic Congress might weaken
Biden’s drive to maximize executive action. He might think that
if he acts too aggressively, he’ll lose the cooperation of key
Democratic moderates. I think that would be a huge mistake —
executive action is something he knows he can do, while
congressional cooperation, as Biden should have learned under
Obama, can be a maddening ephemera.


There’s also the question of the 2022 elections. A president’s
first midterms are typically a disaster in which their party
loses Congressional seats. (Think, if you can stand it, about
2010.) And in 2020, Republicans won the key state houses that
will allow them to gerrymander themselves more seats, so there’s
a very real chance Dems could lose the House in 2022.


The Senate landscape will be more congenial to Dems; Republicans
are defending 20 seats, Dems only 13. But Senate races are
devilishly difficult to handicap.


So 2022 could see Dems keeping both houses, which would
strengthen their mandate; losing the House and keeping the
Senate, which would put a freeze on new legislation and open up
the possibility of impeachment (Republicans will make up some
reason); or losing both houses, which opens up the possibility of
impeachment and removal from office.


And then there’s the question of Biden’s health and the
Democratic presidential candidate in 2024, which is even more
opaque and unpredictable.


We are cursed to live in interesting times. The Republican Party
could implode. US democracy could crumble in the face of
authoritarianism. A meteor could strike America. These are all
open possibilities.


So in the end, my advice to the Democratic Congress is the same
as it is to Biden: blitz. Only two years are guaranteed. The only
hope Democrats have of surviving the waves of white grievance and
authoritarianism that are crashing against DC — strengthened by
deep structural deficiencies in the US constitutional system — is
to rapidly and visibly improve the lives of ordinary people.


Get the pandemic under control. Give Americans money to get
through the recession. Give them access to affordable health
care. Make it easier for them to vote. And invest in the
clean-energy growth that will employ them and clean their air. Do
it proudly and loudly and make sure everyone hears about it.


If you have to write a check to every citizen of West Virginia to
get it done, well then, all hail our new overlord Joe Manchin,
blessed be His beneficence.


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