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Calls to nix US Senate filibuster offer mixed opportunities for climate bills

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Calls to nix US Senate filibuster offer mixed opportunities for climate bills

A growing number of policymakers are pushing to eliminate the U.S. Senate filibuster, a change that could make enacting aggressive climate change legislation easier but imperil the long-term viability of those policies by enabling future Congresses and administrations to undo them more readily.

Under the Senate's filibuster rule, at least three-fifths of the chamber, or 60 senators, must agree to end debate on legislation in order to bring the bill up for a vote. The filibuster rule has become an effective tool for lawmakers in narrowly divided Congresses who wish to delay or block legislation.

The filibuster already has been significantly weakened in recent years. In 2013, former Democratic Majority Leader Harry Reid of Nevada invoked the "nuclear option" to abolish the filibuster for most presidential appointments, meaning debate on those nominations could end with support from just 51 senators. Four years later, Senate Majority Leader Mitch McConnell, R-Ky., scuttled the filibuster for U.S. Supreme Court nominees in order to confirm Justice Neil Gorsuch.

SNL Image

Washington Gov. Jay Inslee, who is vying for the Democratic nomination for president in 2020, is a proponent of abolishing the U.S. Senate filibuster to help pass climate legislation.
Source: AP

Sixty Senate votes still are needed to proceed to a vote on legislation in the upper chamber. But as Democrats push to enact sweeping measures to address climate change, some current and former senators and U.S. presidential candidates want the legislative filibuster eliminated if that party retakes the Senate.

"People ask how it is possible that America is failing to lead on climate change, even as we rapidly approach a catastrophic transformation of our planet that will wreak irreversible havoc on millions of Americans," Reid said in an Aug. 12 opinion piece in The New York Times. "The answer: the filibuster."

Reid called on the Senate to "abolish the filibuster in all its forms" and urged candidates seeking the Democratic nomination for president to follow suit.

Others share that viewpoint. Democratic White House hopeful Jay Inslee, who has made climate change the top issue of his campaign, has said he would tackle global warming if elected "first by taking away the filibuster." Fellow Democratic primary candidate Julián Castro also has indicated support for discarding the filibuster to enact gun control legislation.

Not so simple

While scuttling the filibuster entirely could allow the Senate to pass legislation more easily, the maneuver is not without its downsides.

To abolish the filibuster, the ruling Senate party would need at least 51 votes in favor of the procedural change, said Molly Reynolds, a senior fellow in governance studies at the Brookings Institution. But Democrats and progressive lawmakers are far from unified on the issue. Presidential candidates Joe Biden, Bernie Sanders and Cory Booker, the latter two of whom serve in the Senate, all have expressed support for keeping the legislative filibuster.

If lawmakers throw out the rule, a Democrat-majority Senate still would need at least half of senators to support any legislation it wants to pass. Achieving even a simple majority on aggressive climate legislation could be tough, with Republicans often opposed to sweeping measures such as a carbon tax or cap-and-trade program and moderate Democrats, including U.S. Sen. Joe Manchin of West Virginia, leery of policies that could further hurt coal demand.

"At the end of the day, a lot of it is really about this question of even when you have a majority … do you actually have a majority for a specific piece of legislation?" Reynolds asked.

Bills that lack strong bipartisan support could prove vulnerable in the long term, according to a former GOP Senate aide who asked not to be identified. He pointed to laws such as the Democrat-backed Affordable Care Act and the GOP-drafted Tax Cuts and Jobs Act of 2017 as examples of bills that were passed using budget reconciliation, a process that allows the Senate to move to a vote and pass legislation with a simple majority. Although those bills became law, insufficient input from the minority party exposed the measures to more technical issues and implementation difficulties that can increase a policy's susceptibility to legal challenges and create confusion for regulated entities.

"I think bipartisan votes, bipartisan legislation … makes [laws] durable," the former aide said. "If you want them to be able to stay themselves through time, you can't do them in a partisan fashion."

More simply, the risk of voiding the filibuster is that future administrations with unified control of Congress could more easily reverse laws they do not like. "The minute there is a change in Congress and president, they're going to undo [the opposing party's policies] with a simple majority," the former aide said.

Current Senate Democratic Leader Chuck Schumer is noncommittal on throwing out the legislative filibuster. "Get the majority. Beat Trump. We'll leave discussion of rules to next year," Schumer said.

Sen. Tom Carper, D-Del., the top Democrat on the Senate Committee on Environment and Public Works, also has demurred on whether he would support jettisoning the filibuster to pass climate legislation. A spokesperson for Carper said the Delaware lawmaker is focused on what Congress can enact now on climate change, including a bipartisan surface transportation bill the committee passed in late July that contained funding for electric vehicle infrastructure and to help states and cities with climate adaption and emissions cuts.

"Senator Carper is going to keep working across the aisle to further progress on policies that address the climate crisis, and can be enacted without requiring 60 votes to cut off debate," the spokesperson said.