For The Fire This Time: Lessons from Waxman-Markey

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The last time the American federal government attempted to pass comprehensive climate legislation was also, not coincidentally, the last time that Democrats controlled the Presidency, the House of Representatives, and the Senate. That was 2009-2010; the policy was cap-and-trade. The bill, known as “Waxman-Markey”, passed the House in June 2009, but no bill was every brought to a vote in the Senate, so no substantial policy action was taken via legislation. And since 2011, Republicans (aka the anti-climate party) have controlled the House, Senate, and/or the presidency, effectively putting a lid on any possibility for new mitigation policies.

Regardless of what you think about the policy of cap-and-trade, that particular political failure to pass a bill can teach us—the climate left—what elements of power matter in the attempt to get a climate bill through the US Congress and signed by the President, and what strategic decisions likely need to be made differently next time.

Academics, journalists, organizers, and commentators have answered various versions of the question, why couldn’t we pass a bill? in the years following the attempt. The evidence used in those analyses (listed in this document) primarily includes interviews with many of the stakeholders involved. A few of the analyses rely on those interviews but ground them in broader trends and some political science theory. Here, I aim to synthesize what has been written about the 2009-10 failure and be clear about the lessons and their implications for what we need to do differently the next time that Democrats hold the Presidency and majorities in the House and Senate—since there’s no sign of the anti-climate, anti-government vice grip on the Republican Party (known as the fossil fuel industry) loosening anytime soon.

Lesson #1: Which issues elected leaders prioritize matters a lot.

One factor that impacted the 2009-10 attempt was President Obama prioritizing a healthcare bill over a climate bill. Some critics have said Obama could and should have made more public speeches about climate and directed his staff to be more involved in the policy development and coordination between interest groups and House and Senate leaders.

The precise priorities of legislative leaders are equally vital. In 2009, House Speaker Nancy Pelosi seemed to be on the same page as Reps. Waxman and Markey, taking steps to ensure the bill got its vote and successfully passed the House of Representatives. Senate Majority Leader Harry Reid, on the other hand, wanted to defer to Obama’s priorities, and personally favored tacking immigration before climate.

Another obstacle the Senate is the head of the Budget Committee, who decides whether to attempt to pass a bill via “budget reconciliation”, which only requires 51 votes in the Senate instead of the filibuster-proof 60 votes (further discussed in lesson #3). If the then-Budget Committee chairman Kent Conrad (D-ND) had been committed enough to climate action, he would’ve used reconciliation. But, as a Senator from an oil-rich state notoriously cozy with the industry, he did not.

Fortunately, by the same logic, the political incentives of the President and legislative leaders could work to our advantage. The President prioritizes any given issue because it will positively impact her (a) re-election and (b) legacy. This will happen when she sees the public and interest group community care (and likely cares herself, though that’s not necessarily built into the incentive structure)—only then is she likely to put in the large amount of effort (and spend “political capital”) to push a bill through the process. Leaders in the House and Senate aim to (a) continue their party’s control of that legislative chamber and (b) make policy progress—which are also highly driven by the public and interest group community’s dedication to the given issue.

What does this all this mean? Vitally, in primary elections for the President and across many important House districts and states (aka Senate districts), coordinated mobilization from the climate community is essential to make sure climate champs become the Democratic Party’s nominees (and then win the general election). Then grassroots pressure must continue following the election—until a bill goes through the process. This last bit is vital: Obama stated that climate was priority #1 during the campaign, but seemed to change his mind right after the election, choosing to prioritize healthcare instead.

Lesson #2: The coalition pushing the policy must be as broad as possible.

Fortunately, efforts on the left to recognize the converging interests of groups representing women, people of color, climate, labor and others seem to be gaining traction in the wake of the 2016 election. In 2009-10, unbelievably, the coalition pushing cap-and-trade didn’t include a sizeable segment of even politically-active environmental advocacy groups, let alone adjacent interest groups on the broader left. Policy-wonkish organizations Environmental Defense Fund and Natural Resources Defense Council drove the coalition alongside big business groups, and the policy and political strategy they chose alienated even other “Big Greens” at the time like the Sierra Club, the National Wildlife Federation, and Greenpeace.

Some efforts aimed at building and displaying public support for climate policy in 2009-10 did bring in other environmental groups towards the end of the legislative campaign, along with partner leftist groups like the NAACP, but the broader left was definitely not included in (a) policy planning or (b) political strategy throughout the entire process—the fault of center-left establishment groups leading the charge, but also of the broader left to not build and assert more power over coalition decisions.

Granted, there will always be disagreements within the left that make agreeing on a joint course of action difficult, but the more a wider array of interest groups—within the environmental community and across varied leftist interests—can realize their shared goals and can coalesce around the policy and strategy, the more power and momentum there will be behind a massive legislative campaign.

Lesson #3: Effective lobbying requires grassroots mobilization.

This is also obvious (and probably especially obvious to The Trouble’s readership), but the 2009-10 effort—as mentioned, led by the more center-left environmental groups and business interests—didn’t have the grassroots groups on board to pressure Obama, Reid, and moderate legislators in swing districts/states, who were feeling countervailing fossil fuel interests especially strongly. Those playing the “inside game” (lobbying/legislative strategy) didn’t seem to have as much “outside game” (grassroots pressure in electoral districts) to make the lobbying do enough. In other words, if elected leaders don’t see their constituents emotive and active on an issue (and therefore likely to impact their reputation and re-election), they are likely to only listen to the voices of insider interest groups. And big business will always have more insider lobbying firepower at its disposal.

Lesson #4: The Senate is whole different strategic ballgame than the House.

One critique of the 2009-10 effort is that once the House passed Waxman-Markey, there wasn’t enough of a Senate strategy to get a bill going right away within the higher chamber. In the future, the folks playing the inside game need to be working with senators and their staff far before a bill passes the House, and the folks playing the outside game need to have a revised plan on grassroots pressure aimed toward the Senate (e.g., particular senators) once the House is done (or vice versa if the bill starts in the Senate).

This lesson also refers to the filibuster and the option for the “budget reconciliation” route in the Senate. The ability for a bill’s opponents in the Senate to use the filibuster means that a bill needs 60 votes to pass. Democrats did have 60 seats in the Senate for a few months in 2009, but that seems unlikely to happen anytime soon. Assuming that doesn’t happen the next time Democrats control the Presidency, the House, and the Senate (and Republicans hold tight to their anti-climate orthodox), this means that Democrats can (a) get rid of the filibuster, requiring just 51 votes for any legislation, no matter how substantial (though changing that threshold would seem to run into tons of opposition) or (b) aim to pass a climate bill through budget reconciliation—which would likely limit the scope of policy options.

In 2009-10, the (partial) environmental-business coalition pushing the particular bill watered it down to attract moderate Republican support in the Senate—which clearly didn’t even work well enough to get a bill passed (let alone in the form of a near-ideal policy). Assuming there aren’t any moderate Republicans willing to support a leftist climate bill, Democrats can only rely on themselves for the votes needed, which most likely means aiming for a simple majority and not the 60-vote supermajority.

Lesson #5: Policy choice matters.

The point of this article isn’t to determine the theoretically-best policy to actually initiate a just transition away from a fossil fuel-dominated economy (and politics). The point here is instead that the cap-and-trade policy of choice in 2009-10 became so convoluted because of negotiations with the business community, and didn’t offer tangible benefits to voters in a way that could attract public support.

Other variations of climate policy will inherently attract vastly differently kinds of public (and interest group) support. For example, proposals including renewable energy jobs programs are likely to bring labor interests to the forefront, whereas proposals including investments in renewable energy companies will energize those industry groups and proposals ending fossil fuel production near poorer and non-white communities will bring racial justice advocates to the table.

Certainly, policy should be crafted with the chief purpose of moving us toward a better world. But there will be aspects of the various policy choices that will inherently cause varying constituencies to support the policy more.

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By no means are these five lessons the only things required to get a serious climate bill through Congress and signed by the President. But since we know these things likely had some impact in preventing a bill from passage in 2009-10, there’s no excuse not to understand them and their implications for next time.

While we’re at it, let’s make sure that “next time” is 2021.

Sam Zacher is a PhD student in political science at Yale University studying how interest groups can improve their strategies for success on issues like climate change. He tweets @samzacher


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