The House passed the Waxman-Markey cap-and-trade bill last Friday on a largely party-line 219-212 vote. The New York Times editorial board now urges the Senate both to strengthen and pass the House-passed bill. But the Senate is right of the House on climate, so the choice will be to strengthen or pass a bill. Senate passage would require “weakening” the bill from the standpoint of a cap-and-trade advocate. This legislative situation provides me with a great teaching opportunity about the hard choices of practical legislating.

As a reminder, there were two important Senate climate change votes in April on the Senate budget resolution:



  • 67 Senators, including 27 Democrats, voted against creating fast-track reconciliation protections for a cap-and-trade bill, meaning that supporters need 60 votes to pass a bill, rather than 51.
  • 54 Senators, including 13 Democrats, voted for an amendment that would allow any Senator to initiate a vote to block any climate change provision which “cause
    [s] significant job loss in manufacturing or coal-dependent U.S. regions such as the Midwest, Great Plains, or South.”
  • The specifics of these amendments are less important than that Democrats split 27-28 (with 3 not voting) and 13-44 (with 1 not voting) on these amendments. (I am counting Independent Senators Lieberman and Sanders as Democrats.) This signals a deep split within the Senate Democratic caucus, rather than a few wayward moderates whom Senator Reid and the White House need to work. Most vote counters put solid Senate support for a carbon cap in the mid-40s. That is a long way from the 60 votes that advocates will need.

    I believe the political popularity of cap-and-trade legislation has been overstated by advocates. It is easier to vote yes on the general question, “Do you want to do something bold to address climate change?” than on the specific question, “Do you support the House-passed bill, which would have the following specific costs [list the costs]?” To borrow a metaphor from a knowledgeable Senate insider (used in another context), “Everyone likes ice cream; not everyone likes rum raisin ice cream.” I expect some Democratic Senators will argue that they are open to pricing carbon but oppose this specific bill. And I believe they have strength in sufficient numbers to resist pressure from their leaders or the White House.

    I think it is highly unlikely the Senate will pass any cap-and-trade bill before the end of 2010, but the only bill that would have a chance of passage would be one that would move in the opposite direction from that desired by the New York Times editorial page. The New York Times editorial board admits this:

    The Senate will not be an easy sell. It has rejected less ambitious climate bills before. While 60 filibuster-proof votes are needed, only 45 Senators mostly Democrats, can be counted as yes or probably yes. There are 23 fence-sitters and very little Republican support.

    If I am right, then cap-and-trade advocates inside and outside of government face a tradeoff: how much substance are they willing to sacrifice for the sake of legislative progress? The New York Times editorial board makes their judgment call:

    Democratic leaders should nevertheless resist calls to weaken the targets on emissions reductions. The House bill is itself a compromise, and a weaker Senate bill could be worse than no bill at all.

    They have left themselves wiggle room by writing “could be worse” rather than “would be worse,” but the clear lean is against sacrificing substance for legislative progress. You have to look hard to see it, but in legislative vernacular the New York Times editorial board is leaning toward having “an issue rather than a law.”

    In a legislative body you never get everything you want. The strategic questions generally look like this:

    1. How much of our final goal can we get through the Congress and signed into law now? Three-fourths? Half? A quarter?
    2. If we get a signed law now that is [half] of our goal, does that make it easier or harder for us to get the rest of our goal in the future? You can argue, for instance, that getting a cap-and-trade mechanism in place is the hard part, and that once the mechanism is in place, it is relatively easier to pass new legislation in the future to tighten those caps. On the other hand, once a first bill is in place, the legislative momentum will be gone, and for at least several years it will be harder to generate new enthusiasm for a second bill that tightens the caps.
    3. Does our legislative hand get stronger or weaker over time? If you think political support for your position will strengthen over time, that maybe you should forego the bird now and wait for an improved future chance at two in the bush. If instead you think political support for your position will weaken over time, then you should grab whatever you can get now.

    I offer here my positive analysis (how I think things are) of the legislative situation rather than my normative analysis (how I would like things to be). Unlike much of what I have posted on other topics, I can prove none of the following. Please consider this a well-informed set of guesses.

    1. I don’t think cap-and-trade advocates can get the Senate to pass any bill pricing carbon before the end of this Congress (December 2010). I just don’t see how they get to 60 votes, even if they were to substantially weaken the House-passed bill. They can get only a small portion of their goal now.
    2. If President Obama were to sign a “climate change bill” (as opposed to a bill pricing carbon) into law, momentum for a future carbon pricing bill would slow somewhat. So if a bill pricing carbon cannot pass the Senate, the President could instead almost certainly get a “clean energy” bill to his desk that increases mandated energy efficiency standards, maybe includes a “renewable electricity standard,” and spends a bunch of money on climate change R&D. But signing such a law would take some of the political goodies out of a future carbon cap bill, making it harder to pass. I think the President and his team have positioned themselves to be able to sign such a law and declare partial victory. The President almost never talks about “climate change” or “pricing carbon,” but instead about “clean energy technologies.”
    3. I am unclear about whether Senate support for a carbon pricing bill would be higher in 2011 and 2012 than it is now. There is no clear long-term trend. If I had to wager, I would offer 3:2 odds that there would be less Senate support for Waxman-Markey (or almost any specific carbon pricing bill) two to three years from now than there is today. Note that I am hypothesizing about support from Senators, rather than what public opinion polls might say. The two are related but not identical.

    If my legislative analysis is correct, then cap-and-trade advocates are going to face a letdown. They will fail to get 60 votes in the Senate, and will then be forced to decide whether to enact a “climate change bill” without a carbon price. If they do, they further reduce their future chances of enacting carbon pricing legislation. Either way, I think (guess) that their chances decline over time.

    In a future post I will explain my opposition to the House-passed bill. For now I challenge you to look on this as an exercise of legislative analysis and strategy rather than one of advocacy:

    • Whatever your view on what should happen, do you agree with my analysis of the legislative situation? If not, with which specific assumptions do you disagree, and why?
    • For those who support the House-passed bill: Suppose my analysis of the legislative environment is correct. Would you want a “climate change law” now (by 12/2010) that drops the carbon pricing mechanism, or would you rather wait and save those relatively easy provisions to package with a future legislative attempt at a carbon pricing law?

    If this were an exercise for a class, I would dock points from anyone who responds by telling me why we should support or oppose the House-passed bill. That’s a question for another day and another post.

    (photo credit: The old “cut the polar pear in half” trick! by ucumari)