For the last two months, political strategists and prognosticators have been acting based on the assumption of a Biden presidency and a Republican-controlled Senate. With the recent Democratic victories in Georgia, however, that assumption has been upended. But how big a change will this mean in practice? The Democrats’ Senate victory has been viewed by many as an opening door for legislative opportunities that otherwise were not present, especially for climate and energy. But expectations of sweeping legislation should be tempered by an understanding of both the Senate rules and the political reality of a 50-50 Senate. President-elect Biden now has more opportunity to pursue the clean energy agenda he promised during his campaign, but the scope of his authority as well as that of Senate Democrats remains narrow. Here are four issues to keep in mind for the 117th Congress under a Biden administration.
The Byrd Rule is more important than ever
Major legislation has been pushed through the Senate in the past in a strictly partisan fashion, with the two most prominent examples being the Tax Cuts and Jobs Act of 2017 (Tax Reform), and the Affordable Care Act in 2009 (Obamacare). The enactment of those legislations has led many to believe that wholly partisan control of the Senate yields enormous authority, but the truth is both of those bills were only able to pass due to their adherence to something known as the “Byrd Rule.”
The Senate enjoys a tradition of unlimited debate and requires 60 votes to end debate. With 50 votes in the Senate plus the vice president to break ties in their favor, Democrats still need bipartisanship to end debate and vote on legislation—a process known as “cloture.” The exception to this are bills that fall under “budget reconciliation” rules where committees receive budget instructions earlier in the year (either to raise or expend revenue), and legislation that falls under these provisions merely requires simple majority passage. The intent, traditionally, was to avoid filibustering and politicization of conventional governance and prevent a minority party from essentially holding the government hostage. Since 1980, budget reconciliation has been used 25 times, usually without incident or fanfare.
The constraining factor on budget reconciliation, though, is the “Byrd Rule,” which requires that any provision in legislation be relevant to the budget and originate from the committee of jurisdiction. The 2017 Tax Reform was able to survive the Byrd Rule despite not having 60 votes in favor because it was budgetarily relevant, but it is less likely that major policy changes would pass scrutiny. The Byrd Rule explicitly prohibits any provisions in a bill where budget effects are “merely incidental,” so arguing that a new policy would affect the economy and thus the budget is a no-go. Policies like a clean energy standard, something Biden promised during his campaign, would not pass the litmus test of the Byrd Rule.
To be sure, there are a lot of policies on clean energy that Democrats can pursue that comply with the Byrd Rule, such as tax credits or even carbon pricing, but a sweeping Green New Deal-esque climate bill is off the table.
Biden has much more flexibility on nominees
The traditional check of the Senate on the Executive is the ability to approve or reject high-level political appointments. It is also the responsibility of the Senate majority party to set the agenda, meaning the majority has the power to decide if and when nominees are considered for confirmation.
It should also be noted that since 2013, nominations only require simple majority vote to pass. Prior to 2013, nominees were usually at least unoffensive to the opposing party to avoid posts remaining vacant, but since the “nuclear option ” was enacted presidents have had much more opportunity to nominate partisans to key positions in government. Betsy Devos is perhaps the best example, as the first cabinet nominee to require a tie-breaking vote  from the vice president.
With an (albeit slim) majority, the Biden administration is less likely to run into roadblocks for filling its major policy positions.
The “Manchin Rule”
Coal is, to put it bluntly, the most carbon-intensive electric power source in the United States by a wide margin. Any legislative efforts hoping to decarbonize the electric power sector are almost certainly going to hit coal the hardest—but key votes will have to come from coal states. Sen. Joe Manchin (D-W.Va.) will become the chairman of the Senate Energy and Natural Resources Committee and recall that the Byrd Rule means any legislation offered under budget reconciliation will require provisions to originate from the committee of jurisdiction. In plain English, Joe Manchin has not just the required vote but the pen for any simple-majority energy legislation Democrats hope to pass.
Carbon pricing as an example faces a unique challenge in the makeup of the Senate. It is perfectly consistent with the Byrd Rule, making it the easiest environmental provision for Democrats to pursue, but it is also the most difficult provision to get Sen. Joe Manchin to sign off on.
Any energy policies Democrats expect to push through the Senate along party lines will need to thread the needle of both surviving the Byrd Rule and also the “Manchin Rule” of being agreeable to Sen. Joe Manchin.
The Congressional Review Act is not a silver bullet
Early in 2017, the “Congressional Review Act” (CRA) was invoked to overturn 15  “midnight” regulations from the Obama administration. The CRA allows Congress to overturn regulations by simple majority if they were finalized within 60 legislative days of the CRA vote. Its repeated use when Trump took office leads many to believe that it is a viable tool for overturning last-minute regulatory changes imposed by the Trump administration.
In particular, the U.S. Environmental Protection Agency (EPA) issued new rules regarding the standards for what scientific evidence is admissible for rulemaking, and how benefits are calculated in benefit-cost analysis. Some are expecting  that the now-Democratic Senate could overturn these rules and allow the Biden administration to return to the lower bar regulatory process, but such an assessment of the CRA’s viability may be inaccurate.
The CRA’s authority is confined to rules that are germane to the execution of public policy . Explicitly excluded from the CRA’s jurisdiction are rules that govern how an agency conducts its own internal business, meaning the latest rules from EPA pertaining to the standards for rulemaking cannot be overturned via the CRA. The Biden administration will be the first administration to have to comply with a much higher standard of quality for regulation, despite the outcome in the Senate.
Between the general election and the Georgia runoffs, we wrote a piece about climate policy that could be achieved under divided government . Despite a now unified government, the salience of those assertions remains, as the incoming Biden administration will still face bigger constraints in its ability to pursue and implement policy than its predecessors.
Image credit: turtix
- “nuclear option”: https://www.politico.com/story/2013/11/harry-reid-nuclear-option-100199
- “require a tie-breaking vote”: https://www.npr.org/2017/02/07/513836576/pence-becomes-first-vp-to-break-senate-tie-over-cabinet-nomination
- “overturn 15”: https://fas.org/sgp/crs/misc/R43992.pdf
- “Some are expecting”: https://www.axios.com/democrat-senate-energy-policy-c7c7788b-ba8c-4781-8361-3103525901b5.html
- “germane to the execution of public policy”: https://fas.org/sgp/crs/misc/R43992.pdf
- “achieved under divided government”: https://www.rstreet.org/2020/11/10/under-divided-government-can-anything-get-done-on-climate/