On their way out of town for the Memorial Day recess Senate Minority Leader Mitch McConnell and all but six Republican senators killed legislation that would have established an independent investigative commission on the January 6th insurrection. The attack on Congress was intended to stop the Senate from certifying Biden’s 2020 election victory. The commission provided for in HR 3233 would have been similar in composition and operation to the one appointed following the 9/11 terror attacks.
Republican resistance to the January 6th commission carries with it an ominous warning of what’s to come for US climate policy. I’ll get to the why-of-it in a moment.
First, a bit of discussion on the legislative process used to kill the January 6th commission bill is in order, as it will undoubtedly impact negotiations in the matters of infrastructure and climate.
Opposition to the proposed January 6th commission was the first time the filibuster was used in the 117th Congress. It is unlikely to be the last unless Senate Democrats decide to go kamikaze and dispense with the rule altogether.
Senate Democrats are no strangers to rule changes following Republican filibusters. In 2013 the Democrats eliminated the 60-vote rule for the confirmation of federal judges and presidential appointments. They came to rue the day. President Trump used the simple majority rule to appoint nearly a fourth of the federal bench in his four years in office, with the Democrats having no way to stop him. Salt was poured into the wound when Republicans justified lowering the 60-vote rule for Supreme Court justices—reminding their colleagues across the aisle that what’s fair for one is fair for all.
The January 6th insurgency looked to undermine American democracy in its attempt to stop the Senate from certifying Biden’s free and fair election as the 45th president of what used to be the “United” States of America.
If the chants captured by various news sources on audio and video are to be believed, rioters were looking to hang Vice President Pence. A situation then President Trump was reported to have been made aware of but was unmoved to do anything about.
The commission bill opposed by Republicans in the House and Senate was as bipartisan as it gets these days in Capital City. The bill came out of the House Homeland Security Committee following an agreement between the committee chair, Bennie Thompson (D-MS), and the ranking Republican, John Katko (R-NY). Katko added his name as a co-sponsor of the proposed legislation following his talks with Thompson.
Nearly as soon as the bill came out of committee, House Minority Leader Kevin McCarthy (R-CA) came out against it. Notwithstanding McCarthy’s opposition, 35 Republicans joined with 217 Democrats to approve the bill by a vote of 252 to 175.
The Senate has never actually voted on HR 3233. The 54 to 35 recorded tally was on ending the Republican filibuster for which a 60 vote super-majority is required. A filibuster is nothing more than the refusal to end a debate on a particular piece of legislation.
Once cloture of the filibuster is achieved, a vote on the underlying legislation is then possible. In most cases, including the matter of the commission, the Senate needs only a simple majority to approve a bill.
The Senate filibuster has been much in the news lately—often as part of discussions on moving major portions of Biden’s climate and social justice agendas through the Congress. The filibuster dates back to 1806 when the Senate—at the advice of Vice President Aaron Burr—took care of a housekeeping matter.
Filibusters were a regular feature in the run-up and aftermath of the Civil War. They were used again in 1917 as part of the debate to arm merchant ships. The current 60-vote rule was adopted in 1975.
There are two basic ways around a filibuster—a unanimous consent agreement (UCA) and budget reconciliation. Given today’s hyper-partisanship, a UCA is an unlikely option.
Without getting too far into the weeds on the arcane reconciliation process, readers should understand that reconciliation has its limitations. Only matters related to taxes or having a budgetary impact can be included in a reconciliation bill.
The refusal of most Senate Republicans—and for that matter most House Republicans—to empower a January 6th commission is about two things that don’t pair well—Donald Trump and the truth. I’m speaking here of more than the truth about the charge up Capitol Hill by supporters of the former president.
We are now a nation divided by crucially more than simple differences of opinion. We are a people lacking any mutually respected or accepted measure of what the truth is or even how to ascertain it—without which it is virtually impossible to settle our policy disputes.
The months of pandemic and the response of many to mask requirements show that scientific findings are not an agreed to measure of truth—nor a universally accepted foundation upon which policies should be crafted.
It’s all well and good for House Minority Leader McCarthy to walk out of the White House after discussing infrastructure spending with President Biden, look into the TV cameras with straight-face, and say he didn’t think anybody was seriously questioning the legitimacy of the presidential election. If only he wouldn’t follow it up with a wink and a nod.
Even if the Republicans in Congress don’t believe the lie, they appear willing and eager to be guided by the liar. If the truth be damned, then there’s nothing to stop the nation from being delivered into the hands of demagogues like Representatives Marjorie Taylor Greene (R-GA) and Matt Gaetz (R-FL).
Greene thinks it’s fair to compare masks worn in defense of disease to the yellow stars Jews were forced to wear by Nazi regimes. The recent sale by a Nashville hat shop of yellow six-pointed stars with the phrase “not vaccinated” in the middle proved too much even for Minority Leader McCarthy.
Gaetz, in a speech given on the “America First” tour he and Greene are on, told the largely MAGA audience:
The Second Amendment is about maintaining, within the citizenry, the ability to maintain an armed rebellion against the government if that becomes necessary. I hope it never does but it sure is important to recognize the founding principles of this nation and to make sure that they are fully understood.
The consequence of all of this on national clean energy and climate policy is far from hypothetical. President Biden, congressional Democrats, and climate and clean energy activists point to what climate scientists have to say about the crisis and what can and should be done about it.
With no Republican measure of actionable truth other than “Trump says,” how can climate activists ever hope to convince Republican lawmakers of the need to put the nation on an irreversible path to a decarbonized economy? Are they left to following the suit of a solar industries group and hiring Sean Hannity, a FOX media personality, to make their pitch? Without truth, what’s to say an opposition group wouldn’t pay him more to trash the industry?
Extremes beget extremes—what next?
Events surrounding the failure of the proposed January 6th commission make it more likely that any advancements in national climate and clean energy policy will largely be the result of partisan congressional action, e.g., budget reconciliation, and the exercise of presidential authority, e.g., executive orders.
It may also mean amending the Senate filibuster rule. Changes to the rule could be anything from abolition to modification. For example, a rule could be adopted that filibusters may only do so while physically present in the Senate chamber.
The days of Mr. Smith going to Washington are over. Now a senator can simply indicate an intent to filibuster for it to come into play. I think it hardly unfair to require the presence of someone in the hall who is trying to defeat the will of the majority. Whatever tinkering the Senate Democrats do to the filibuster rule will undoubtedly have consequences the next time they are in the minority.
It’s anybody’s guess at this moment whether President Biden, congressional Democrats, and Republicans will find common ground on infrastructure, climate, and social justice. They remain considerable sums apart in their current negotiations. According to the recent offer and counter-offer, they remain $700 billion apart.
Money, however, is not all that divides the sides. Democrats view climate change as a clear, present, and imminent threat to the health and welfare of the nation—for Republicans, not so much.
We know what climate and clean energy policies by presidential order mean for the nation—a perpetual cycle of feast and famine that creates uncertainty in the marketplace and crowded court calendars. I continue to believe the odds of a compromise stand-alone climate bill are long—at least as long as congressional Republicans remain under the control of Trump with no objective measure of truth.
Joel B. Stronberg is a recognized thought leader in the fields of climate and clean energy. A senior executive and attorney, he is the founder and principal of The JBS Group, a Washington, DC consulting firm. Joel is currently advising the Legal Pathways to Deep Decarbonization project at Columbia University’s Sabin Center along with his other clients. Joel is a featured voice on Resilience.org, a Top Climate Change Writer on Medium.com, and a highlighted opinion writer on Energy Central.