The Senate’s Energy Failure

Barataria Bay.jpg

Patrick Semansky/AP Photo

Oil spews from a wellhead in Barataria Bay on the coast of Louisiana after it was struck by a tugboat, July 27, 2010

Many reasons have been served up to explain the Democrats’ dismal withdrawal of the energy bill last week: the President was too reticent about fighting climate change; they failed to drum up sufficient public support; they let too many other things take precedence on the legislative agenda. But one reason towers above all others—the dysfunctionality of the Senate.

During the 2008 campaign, Barack Obama made it clear that his highest domestic priorities were health care, energy, and education. Education was always understood to be third on that list by most insiders—not least because Obama’s proposals for it were more in the realm of using discretionary executive powers than enacting sweeping new legislation through Congress. The latter is always considered more important for advocates and partisans gearing up to make history.

So education was third, but which was first? This was a great guessing game among liberals in late 2008 and early 2009. I guessed energy: In his debates with John McCain and in campaign speeches, while Obama covered both subjects, usually even devoting more time to health care, to my ear he spoke with far more conviction on energy. I believed, and still believe, that Obama felt more passionately about it.

But personal feelings are one thing. The vast and complex machinery of a political party’s moving parts are another. And the Democratic Party’s moving parts—the interest groups, the sources of money, the ground-level activists—argued for putting health-care reform first. More Democratic constituency groups have a stake in it than in energy, from unions and trial lawyers to nurses and AARP members. And, of course, health-care reform stood out as the main piece of unfinished New Deal business, exerting a far stronger emotional gravitational pull on most liberals.

So energy was going to wait. Actually, in the long-gone days of early 2009, when Obama’s approval ratings were in the 60s, it was thought that health care reform would take perhaps four months and energy would follow immediately. The original idea was to pass health care by, say, September 2009, then conquer energy, permitting Obama to show up in Copenhagen last year brandishing the new law. In April 2009 – with the stimulus bill successfully in hand and a sense of urgency emanating from a popular White House —all this seemed quite possible.

Today’s reality is quite different, of course. Since the stimulus, the Republicans have decided to oppose en masse all major legislation, and the Tea Party movement arose to punish deviationists. Health-care reform took nearly a year, and achieving it cost the president many approval-rating points and much political capital. And now, despite a seemingly favorable constellation of external pressures—the BP spill, rising oil prices, wide public concern about the climate—comprehensive energy legislation is dead. A modest bill might yet emerge from negotiations, but a large bill that establishes the principle of putting a price on carbon emissions will not happen. The New York Times’s David Leonhardt recently reported that, on a NASA list of the hottest years on the planet since records were first kept in 1880, nine of the top ten spots are occupied by years in this young century (the tenth is 1998). But the American government did not and cannot act, and it’s difficult to imagine when it might.

What happened? As the above narrative suggests, with a weak economy and high unemployment rate, members of Congress were nervous about enacting too much “big-spending” legislation that, in the average voter’s mind, was not related directly to the economy. So they were willing to tackle one such bill, but not a second. One can criticize, as one always can, the administration’s political strategy: as with health care, the rhetoric wasn’t persuasive—Obama could never conjure up the language to sweep the right’s disingenuous “questions” about climate science to the side, and he did not seize the post-BP moment as he might have. But the deeper explanation lies with the Senate.

The rules of that body, combined with the collapse, in our hyper-partisan age, of the practices that used to maintain Senate collegiality, have created a situation in which a supermajority of sixty votes is required to pass anything. This is the so-called “cloture” vote, which is not a vote on the merits of a piece of legislation per se, but a vote to end debate and bring a matter to the floor for a final vote. The cloture rule has existed since 1917, but it is only in the last thirty years, and most intensively in the last fifteen or so, that the cloture process has come to apply to virtually all matters. Since sixty votes are required to end debate, a minority of forty-one senators can block the will of fifty-nine; a minority, in other words, can function as an effective majority, threatening to filibuster any legislation it does not support. I explain all this in detail in a piece that will run soon in the New York Review.


Both parties’ Senate members are guilty of behaving this way when in the minority, but the Republicans have used this blocking device more often, especially since the 2006 elections, when they became the minority party. In the case of energy, the Democrats were not unanimous in their support for a large bill, as they had been on health care. Certain moderates (Nebraska’s Ben Nelson) feared the legislation on the grounds that it would lead to a hike in rates or taxes, while otherwise liberal senators from the sootier, fossil-fuel-dependent states (Jay Rockefeller of West Virginia) were against it. But the Democrats probably had fifty-one or fifty-two votes for it, possibly more. In other words, they had a majority. But in today’s Senate, a majority is not enough.

Filibuster reform is thus an imperative, as more and more Democrats and progressive activists have come to realize. In the Republican Party of Lyndon Johnson’s day, or even of twenty years ago, getting four or five or even dozen moderate Republicans to participate in shaping and then supporting Democratic-sponsored domestic legislation was a possibility (thirteen Senate Republicans out of thirty voted for Medicare in 1965). But this is no longer possible, given today’s GOP. Until this fever breaks (which could be four years or thirty-four, who knows), the passage of large-scale domestic legislation will be well-nigh impossible. And yes, reform of the filibuster rule would benefit the Republicans when they have power, but to many observers, and an increasing number of Democratic senators such as Iowa’s Tom Harkin, New York’s Charles Schumer, and New Mexico’s Tom Udall, a Senate that passes liberal legislation at certain times and then conservative legislation at other times is better than a Senate that does nothing.

Democrats are mounting an effort to reform filibuster rules at the beginning of the next Congress, assuming they retain the majority. Coming off an election in which they stand to lose seats, I think it will be difficult for them to make a case that the rules should be changed. But serious discussion of Senate reform needs to start. The institution is broken.

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