It won't be easy, quick, or simple, but Mitch McConnell can likely force a vote one way or another on President Obama's climate-change rules.
The Senate minority leader last month invoked a rarely used legislative tool — the Congressional Review Act — to try to block the Environmental Protection Agency's proposed rule clamping down on carbon emissions from the nation's power plants.
The move is likely going to force the Senate to vote sometime in the next several months on the cornerstone of Obama's climate agenda, and that's not good news for vulnerable Democrats up for reelection in red states, including Sens. Mark Pryor of Arkansas, Mary Landrieu of Louisiana, Kay Hagan of North Carolina, and Mark Begich of Alaska. Continued Democratic control of the Senate may well hinge on those races.
But McConnell, who is himself in a tight reelection race this year in Kentucky, will have to thread the political and legal needle carefully to succeed. The first problem he runs into is that the CRA, used successfully just once since its creation in 1996, can apply only to final rules issued by federal agencies. The regulation McConnell is targeting — EPA's carbon standard for new power plants — is still only a proposal.
McConnell must convince the Senate parliamentarian, the official arbiter on rules and procedures in the chamber, that EPA's climate standard is, in effect, a final rule.
"He's trying to make the point that the [carbon rule], because of the way it uniquely operates, amounts to a final rule even when it isn't," said Chris Miller, who was the top energy and environment aide for Senate Majority Leader Harry Reid for seven years until last year. "That was a very unique and in some ways a clever political tactic."
To help bolster his argument, McConnell is seeking to convince the Government Accountability Office to back up his view that EPA's draft carbon rules are actually final in their substantive impact on power plants because of the way the Clean Air Act is written. GAO's backing would help McConnell make a more convincing case to the parliamentarian.
"We don't look at things Democratic versus Republican. We looked at things as a Congress versus the executive," said Alan Frumin, who was the Senate parliamentarian on two separate occasions for 19 years in total until 2012, when Elizabeth MacDonough assumed the post. "If GAO were willing to say, "˜EPA, you've mislabeled this,' then I think Elizabeth would be inclined to say, "˜Yes, this should be covered by CRA,' " Frumin said.
Even if McConnell doesn't succeed on that front, experts on Senate rules say he could still force a vote on the EPA rules by working the system in a roundabout way, and could use the results to put pressure on moderate Democrats up for reelection.
This wouldn't be the first time senators cast procedural votes painted as something more. Last March, several liberal Democrats, such as Sens. Christopher Coons and Thomas Carper of Delaware, voted to support a budget resolution that included language on the Keystone XL pipeline. Proponents of this project cited these and other yes votes to argue that the project had broad support in the Senate. But when asked about their yes votes, Coons and Carper (and others) noted that they merely supported a resolution that said the pipeline would have a positive impact on the budget if it were approved. The political portrayal still won the narrative, and the same thing could play out with votes senators cast on EPA's climate rules in a similarly indirect way.
"You can almost write a press release on anything," said Martin Paone, who spent nearly 30 years working on the Senate floor for Democratic leadership in various capacities until 2008.
If GAO rejects McConnell's argument, he could still force a procedural vote that might be interpreted as a vote for or against EPA's climate rules. This is where it gets really confusing.
McConnell could gather 30 signatures for a discharge petition for his disapproval resolution — a step authorized under the CRA — and ask the parliamentarian to put it on the floor calendar. The parliamentarian would likely say no, based upon GAO's finding, and then McConnell could appeal that ruling.
A vote could occur at this point, depending on what legislation is pending and if his appeal is or is not debatable. In the unlikely event the appeal isn't debatable, a vote could occur right then. If the appeal were debatable, McConnell could move to table his own appeal, and force a vote on his motion to table his own appeal.
This would be, in a circuitous and ambiguous manner, voting on whether to continue debating whether to stop EPA's climate rules. McConnell would likely vote no because he doesn't want to stop debating EPA.
"Now it's getting rather convoluted," Frumin said. "How is McConnell voting on his own motion to table? Presumably, he would vote no. He would be forcing Mark Pryor to vote yes, if that's his goal.
"Now, Pryor would argue it's just a procedural vote," Frumin added. Of course the National Republican Senatorial Committee would likely interpret it differently.