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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Democrats in Array: How the Climate Bill Finally Passed
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Sunday, August 07, 2022
Democrats in Array: How the Climate Bill Finally Passed
David Super
As readers
presumably know, the Senate today passed the Inflation Reduction Act, a budget reconciliation
bill that has been in the works for a year and a half. Although far less ambitious than the Build
Back Better agreement Democrats reached then abandoned
a year ago, it still includes transformational changes in energy policy to
combat climate change. It also reduces
prescription drug prices for both Medicare beneficiaries and the federal
government itself as well as extending enhanced premium tax credits that
originated in the American Rescue Plan Act of early 2021. It also reduces the deficit by raising taxes
on the affluent and repairing some of the damage Republican appropriators have
done over the past decade to the Internal Revenue Service’s capacity to curb
tax evasion. Superficially, everything
went largely according to script: all
Democratic senators supported the bill, all Republicans opposed it, and Vice
President Harris broke the tie in favor of passage. The House will reconvene later this week to
pass the bill and send it on to the President.
Beneath the
surface, however, this legislation is not just a substantive tour de force
but a strategic one as well. It also
suggests that, after decades of headlines about their supposed “disarray”,
Democrats are developing the pragmatism and strategic judgment necessary for them
to do much more going forward if they can manage to win elections. This post is a set of observations on how
this happened. First, notwithstanding
the determined talk about bipartisanship from President Biden and his two immediate
Democratic predecessors, the Democrats recognized early on that they were
completely alone. Under no circumstances
would any Republicans help out in any way; historically, senators
from the minority party will sometimes help craft parts of legislation, or
defeat nefarious amendments, even if they do not plan to vote for final
passage. Here, every single Republican
move, from threatening to hold hostage other legislation to crafting amendments
designed solely to splinter the Democratic caucus, sought to undermine the
legislation. Supposed Senate Republican moderates
played along all the way. (Sen. Collins
voted against a few extreme amendments when the Democrats had demonstrated they
had the fifty votes to defeat it, but she never committed herself in advance –
suggesting that she might have changed her vote had it been decisive.) Second, Democrats
showed remarkable unity. Adoption of any
Republican poison-pill amendments might have doomed final passage in the Senate
and almost certainly would have done so in the House. Democrats had two
means available to pass a “clean” bill:
defeat every amendment as it came up or support a comprehensive superseding
amendment at the end from Senate Majority Leader Schumer to strip out all
amendments adopted along the way. Many of
us assumed the senators would want to vote for many Republican amendments and
then adopt the “king-of-the-hill” strategy at the end. That, however, would have put a majority of
the Senate on record favoring this or that problematic policy and all but
inviting Republicans to force them to vote on those same policies during
consideration of future must-pass legislation.
To their credit,
Democratic senators recognized this danger, held hands and voted down everything. Sen. Bernie Sanders (I-VT) gave moderate and
endangered Democrats cover by offering up several amendments to make the
legislation more liberal. Consistent
with the Democrats’ agreement to oppose all amendments, the Sanders Amendments
were voted down 99-1 or thereabouts.
This allowed all senators to say that they were protecting the
underlying bill by opposing amendments they liked as well as those they did not
– a claim made more credible when they rejected appealing liberalizing amendments. Democratic
senators’ unity, and clear focus on the need to enact the climate bill, was so
powerful that Senator Schumer elected not to use several lifelines he had
available. In particular, many Republican
amendments violated the Senate’s rules; by raising a point of order against
them, Senator Schumer could force the Republicans to seek the sixty votes needed
to waive the Congressional Budget Act.
That framing made “no” votes easier to explain, and the higher threshold
allowed up to nine Democrats to cast politically convenient votes with the
Republicans while still allowing the amendment to fail. Yet that device, too, would put Democrats on
record supporting policies they disfavored, opening the door to on-going
Republican attempts to force votes on future legislation. On several Republican amendments containing overt,
even outlandish violations of Senate Rules, the Democratic leadership elected
not to raise the point of order, fighting the amendment with a fifty-vote threshold
for success. To the amazement of those of
us beseeching the leadership to invoke available points of order, every such
amendment failed. Only on two Republican
amendments did the Democrats give themselves a margin of error by raising a
point of order. Most observers
became convinced that the legislation was going to pass after Democrats voted
down the seventh offered amendment, which would have reinstated President Trump’s
“remain-in-Mexico” policy. That policy polls
extremely well but is difficult to reconcile with our international obligations
to those fleeing oppression. Democrats
have been leery about opposing it in the past, but this time they voted
it down without dissention (and also without help from any purportedly moderate
Republicans). This amendment blatantly
violated section
313(b)(1)(D) of the Congressional Budget Act, but Democrats declined to
raise a point of order that could have allowed nine of them to vote for it. On the other hand,
half of the Democratic amendments came to the floor needing sixty votes to
pass. At least one of these did irredeemably
violate Senate rules, but some others probably could have been reframed to
require only fifty votes to pass. The leadership
recognized, however, that adoption of these amendments would blow up their
carefully-honed deal and that no Democrat wanted to be recorded as the one to
scuttle important Democratic priorities.
By bringing their amendments to the floor in a form requiring sixty
votes, Democrats could vote for the amendments and still know that nothing would
rupture their agreement. Third, Democrats
showed impressive preparation. The bill
threatened to unravel near the end of the “vote-a-rama” on amendments when Sen.
Kyrsten Sinema unexpectedly decided to support an amendment from Senate Republican
Whip John Thune. The Thune Amendment
would narrow the bill’s corporate minimum tax and pay for it by extending caps
on deductions for State and Local Taxes (SALT).
SALT caps are intensely unpopular with Democrats from high-tax states,
and extending them could have jeopardized the bill in both chambers. Once Sen. Sinema broke ranks, six other purple-state
Democrats followed suit. The leadership was
ready, however, and as soon as the Thune Amendment passed Sen. Mark Warner
offered an amendment to strip out Sen. Thune’s SALT caps and replace them with an
alternative revenue source. All
Democrats supported the change, and the underlying bill was again free of
poison pills. Had the leadership not
prepared amendments with alternative revenue sources and had them costed out in
advance, it would have had few good options for salvaging the bill. After Sen. Thune’s
SALT gambit failed, Senate Minority Leader McConnell terminated the Republicans’
fourteen-hour amendment campaign and allowed a final vote. All told, Republicans offered twenty-seven amendments
and Democrats brought ten to a vote; all except Sen. Thune’s and Sen. Warner’s
failed. @DavidASuper1
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