How Mitch McConnell Can Force a Vote, One Way or Another, on EPA Rules

The Senate minority leader has a few tricks up his sleeve to target carbon limits for power plants.

WASHINGTON, DC - JANUARY 28: U.S. Senate Minority Whip John Cornyn (L), Senate Minority Leader Mitch McConnell (2nd L) and Senate Majority Leader Harry Reid (R) head to the front of the chamber together before President Barack Obama delivers his State of the Union speech on Capitol Hill on January 28, 2014 in Washington, DC. In his fifth State of the Union address, Obama is expected to emphasize on healthcare, economic fairness and new initiatives designed to stimulate the U.S. economy with bipartisan cooperation.
National Journal
Amy Harder
Feb. 3, 2014, 3:33 p.m.

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.

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