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What happens when Congress fails

In June 2009, the Waxman-Markey cap-and-trade bill passed the House of Representatives with a slim majority. In July 2010, Harry Reid, the Senate majority leader, announced that the Senate couldn't find a supermajority for a companion piece of legislation. Cap-and-trade was dead.

But regulations to reduce carbon emissions are alive and well. The Environmental Protection Agency can attack carbon as a pollutant, and the Obama administration's announcement that efforts to hamstring the EPA will be vetoed suggests that they mean to do exactly that.

This is, more often than people realize, the end game of the filibuster: It's not that the issue is tabled, but that it is handed over to the executive branch, or an independent agency, or the courts. It is handed over, in other words, to an institution free from the filibuster.

The Federal Reserve took a larger-than-anticipated role in the financial rescue because Congress couldn't do everything it needed to do, and if the economy can't pull out of its funk, the Federal Reserve is going to step in and take unprecedentedly large steps to stimulate the economy. One of the health-care bill's signal achievements was creating the Independent Payment Advisory Board, which was designed to reduce congressional authority over Medicare. The deficit conversation has been offloaded to a fiscal commission formed by the executive branch. The EPA will handle carbon emissions.

All of this reduces accountability and, in may cases, leads to bad policy, as these alternative institutions and procedures don't have the flexibility and power of the normal congressional process. But it's what happens when the majority wants to act but is blocked by a supermajority requirement: They might not be able to pass a law through Congress, but they can allow another institution or agency to make policy on their behalf.

By Ezra Klein  |  July 26, 2010; 12:56 PM ET
Categories:  Senate  
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Make policy on their behalf and take the blame, as the GOP spins it into another "big government takeover" narrative. Also, it might help get some measures through on climate and energy where there is a foundation of strong legislation like the Clean Air Act to build on, but what about other issues?

What I think will tip the balance is when a sufficient number of businesses really agitate for something to be done (on climate) because they see how it is going to adversely affect their businesses--insurance cos and electric utilities, for example. There was actually a lot of business support for civil rights legislation in the '60s and environmental legislation in the '70s because without it at least in the short run an economic advantage is given to the most unscrupulous players and the responsible ones are penalized (like what we still see to some extent in the financial industry). Part of business wanting "regulatory certainty" is wanting to do away with this disincentive to be responsible.

Posted by: Mimikatz | July 26, 2010 1:08 PM | Report abuse

The Federal Reserve took a larger-than-anticipated role in the financial rescue because Congress couldn't do everything it needed to do

I would phrase it more like "wouldn't" then "couldn't" but good point nontheless.

Posted by: allastair | July 26, 2010 1:29 PM | Report abuse

One more point: Reading Ross Douthat's op-ed on the death of the climate bill, I don't disagree with much of his reading of history. And I think he is certainly correct that the right is wrong and that very serious changes will come to pass with climate change. There's peak oil, which he didn't mention.

But if our way out of this really depends on technological change, especially new energy sources, this is one area where Congress is absolutely necessary--to fund research and make the necessary tax law changes that would put us on a clean energy path.

I thought about this further watching a leading venture cap guy on CNBC this am talking about how disasterous it would be for CA if the voters misguidedly repeal AB 32, the bill that put CA on the clean path. He said it has already created 500,000 green tech jobs. Arnold will campaign against repeal, and Meg Whitman's views on this is likely to cost her Schwarzenegger's endorsement. Even George Schulz is lining up in support of AB 32. What a disaster if these ignorant and greedy folks send us marching back to the 19th century, leaving the field open for China and the Europeans.

Posted by: Mimikatz | July 26, 2010 1:42 PM | Report abuse

Maybe I'm naive, but I don't understand why Reid doesn't make the Senate take a vote on the bill so we can all officially see who voted against for and against it. Let's put these people on record. If they make an unpopular decision (depending on your point of view) then maybe they'll have to feel the heat from their electorate as opposed to what's happening now which gives them all cover.

Posted by: saratogian | July 26, 2010 1:57 PM | Report abuse

"All of this reduces accountability and, in may cases, leads to bad policy, as these alternative institutions and procedures don't have the flexibility and power of the normal congressional process."

Man, I think this claim needs a little more substantiation. Given how Congress works, it's very hard to imagine how agency processes could produce worse POLICY than the special interest-ridden, ignorant, slow, heavily insulated Congressional process. Unless of course that agency's hands are tied by the statutory language Congress itself crafted.

EPA simply can't refuse to regulate a pollutant that it determines to be dangerous to human health. It's just legally not allowed to. Everything from DOJ to USDA to Interior to State has very precisely crafted legal authority narrowly defining its rights and responsibilities, and the courts are always available to push them to live up to those.

Meanwhile, Congress can hide behind the political question doctrine for decades if it wants. Virtually everyone understands that our farm policy is ridiculous, economically wasteful, and environmentally damaging, but it's never going to change because it's vital to winning election in most states. A significant chunk of sitting Senators and Representatives went from actively doubting the existence of climate change, to pushing right-wing alternatives to regulation, and then back to flat out denial again in the scope of like two years. There is ZERO accountability for Congress to act in the public interest (at least, beyond the enormously flawed electoral process).

Virtually everyone who works at a federal agency actually has experience (if not recognized expertise) in their subject matter. Meanwhile everyone knows Congress has more than its fair share of people who barely know or care about what the federal government actually does, beyond its usefulness in attracting donations or bashing the other side.

So I guess I'd like to see you develop this a little bit more. Why would you trust Congress over an expert agency?

Posted by: NS12345 | July 26, 2010 4:42 PM | Report abuse

The EPA implements what it has threatened to it needs to do whatever it must do to make sure the Republicans can NOT retake the House.

Because if the Republicans retake the House ( The body that authorizes spending ) the budget for 2011-2012 for the EPA will be $0.

Now Obama won't SIGN that budget.
But the House Republicans will stick to it and give him two choices ...
a ) shut the government down
b ) reverse the EPA decisions. And fire the head of the EPA.

This isn't like the 1995 budget shutdown for the Republicans, Clinton didn't have the choice of reversing his decisions. And I suspect the majority of the public will DEMAND the termination of the Head of the EPA.

Besides -- anything enacted by the EPA is in effect only as long as the EPA is controlled by the Democrats -- as in the length of the Obama Presidency.
If it becomes unpopular, the public doesn't have to work through arcane procedures and figure out how to over-take a Democrat filibuster.
Just fire the president.
new president, new EPA head. new EPA head, old EPA's directives reversed.

And stating the EPA must as in MUST do something?
They do not have to ENFORCE their rules!
If they did, why then the INS would have to ENFORCE immigration laws wouldn't they?

So if you are counting on the EPA giving you what you want -- you better make it illegal for the Republicans to control the House of Representatives or the Presidency.

Posted by: chromenhawk | July 26, 2010 5:09 PM | Report abuse

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