I. The Senate Filibuster

I think Richard Lazarus was right when he said that the biggest constitutional impediment to environmental law in the United States may be Article I, §5 of the U.S. Constitution, which provides that each House of Congress may make its own rules. We see that clearly in the "Sacred Quest for 60," as we try to craft a climate bill that can make it through the U.S. Senate.

There is a second, more subtle way in which the Rule of 60 makes things more difficult, which is that it muddles the head count, and thus accountability in general. A 60-vote threshold gives senators the opportunity to say, "Well, sure, I'll vote for it," knowing that they may never have to, because leadership rarely will take a vote on bills subject to a filibuster unless it has 60 votes locked up. Thus, many senators can indicate support for a bill, while knowing the odds are that they will never have to go on record and actually vote for it. And if, for one procedural reason or another, the issue is then recast into a form requiring a simple majority, anything can happen. You may start out with a 58-vote head count when you need 60, and then suddenly have 48 when you're looking for 51 on the same issue. Welcome to Washington.

Apropos of Senate whip counts, as soon as the Waxman-Markey climate bill passed the U.S. House of Representatives last year, I edited the automatic signature at the bottom of my e-mails to include the statement: "Waxman-Markey: if you don't have 60, you'd better have 41." If you don't have 60 votes to pass a bill, you'd better have 41 to block whatever bad thing the Senate may come up with instead. So, I put that on my e-mail because I wanted people to keep that in mind: If you don't have 60, you'd better have 41.