Double Tracking Rides the Climate Legislation Off the Rails

Barack Obama has called health reform his top domestic priority.  And though providing health insurance and care to America’s 45 million uninsured is indeed a pressing moral issue, the yearlong process has tied up the activities of Congress’s upper houseThe House of Representatives has been hard at work, passing bill after critical bill, while the Senate has been sitting on its hands, fighting insular battles due to parliamentary procedure. A recent tally counted 219 bills passed by the House that the Senate has yet to address.  One of these is the American Clean Energy and Security Act (ACES), cosponsored by Representatives Waxman and Markey, which Obama has claimed will “spark a clean energy transformation.”

Heretofore, there has been little pressure on the Senate to take up ACES.  Of course, with the difficulty of passing health reform, moderate senators have had little motivation to take up another issue that might harm them in the upcoming midterm elections.  The ACES’s Senate counterpart, which is cosponsored by the bipartisan team of Senators Lindsay Graham, Joseph Lieberman, and John Kerry, is a more moderate response to cap and trade, but it has remained a Senate non-starter. Conservative senators have cast aspersions on the legislation – John McCain has called it “a joke” – but climate change has been one issue that senators, realizing the pressing urgency of the situation, have been willing to reach across the aisle on.

The trouble, as it stands, with the current Senate is its ability to “double track.”  A March 9 Op-Ed piece in the New York Times pointed out that before the mid 1970s, the Senate dealt with one piece of legislation at a time, on one “track.” If this piece of legislation were filibustered, the whole of the Senate’s business would freeze.  Realizing the difficult situation that this presented, then-majority whip Robert Byrd invented the double track system whereby one bill could be filibustered and other Senate business could be taken up simultaneously. This tweak in the Senate rules made sense in the 1970s, when there were around 20 votes on cloture (the procedural motion required to break a filibuster) each Congress, as opposed to the 112 votes last Congress. Today, senators have no qualms about filibustering legislation that they do not like because the rest of the Senate’s business can still carry on.  It’s clear that the filibuster is being abused, but double tracking is allowing senators to get away with it – seen most recently when Sens. Jim Bunning and Richard Shelby put extortionist holds on unemployment and federal judicial nominations while other legislation was still being addressed.

This brings us back to climate change legislation.  It, along with the 218 other House-passed bills that are waiting for their Senate counterparts to be addressed, is currently sitting in a Congressional purgatory.  If the Senate had been forced to deal with health reform before moving on to any other legislation, it would have likely flown through the Senate, instead of crawling through the chamber, having taken more than a year to reach the president’s desk. Harry Reid and the Senate Democratic leadership have limited political capital, and trying to push through two major pieces of legislation at once would quickly expend it. However, a victory on health reform will likely reinvigorate the Democratic caucus’s excitement for a climate change bill.  The case for a climate change bill is pressing, and the longer we wait on a bill, the harder it will be for the world to recover from the poisonous effects of global warming.  The bill would also create green jobs, which are so desperately needed at this low point in our nation’s economic history.  The job of enacting climate regulations will fall to the Environmental Protection Agency if not addressed in Congress. However, many, including energy companies, moderate to conservative lawmakers, and President Obama, oppose the complicated regulations, potential lawsuits, and increased government bureaucracy that will arise if the EPA takes on this responsibility instead of Congress. Health reform should be finished now so as to allow the Graham-Lieberman-Kerry bill to come before committee and eventually be voted on in the Senate.  If senators wait too long, the power will no longer be in their hands.