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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