Full-blown partisan warfare is expected tomorrow when Democrats try to begin a markup of global warming legislation in the Senate Environment and Public Works Committee despite plans by the panel's seven Republicans to skip the meeting altogether.
Chairwoman Barbara Boxer (D-Calif.) plans to proceed under a rarely used interpretation of the committee's rules that allows her to start and finish the markup so long as a majority of the panel's members are present, rather than longstanding precedent requiring two minority members to be in attendance, according to sources on and off Capitol Hill.
Boxer's justification for the move is that Republicans are trying to stall on a climate bill that they have no intention of voting for anyway. And with a 12-7 majority favoring Democrats, she does not need their support to report the bill favorably.
"We believe that there's no reason for them to stay away," Boxer told reporters last week. "It'd be remarkably bad faith if they did."
Republicans counter that they have no choice but to boycott the markup because they have not been given all of the information from U.S. EPA and the Congressional Budget Office that they need to understand the full economic implications of the legislation, let alone prepare amendments for committee action.
Andrew Wheeler, a former EPW Committee Republican staff director, agreed that Boxer has the power to proceed with the markup absent Republicans' participation, though he warned against the precedent she could create. "The loophole is she's the one who decides the rules are being followed," he said. "There's no appeal to any higher authority. There's no committee Parliamentarian. ... There's no police."
Late Friday, Boxer released a new 959-page version of the climate bill that will serve as the vehicle for the markup.
Senate aides say the latest proposal encompasses several technical changes to the bill, as well as the byproduct of some last-minute negotiations with moderate Sens. Max Baucus (D-Mont.) and Arlen Specter (D-Pa.). The biggest difference deals with language that pre-empts U.S. EPA from regulating greenhouse gas emissions under two especially strict provisions of the Clean Air Act that deal with air toxics and nationwide emission levels, also known as the National Ambient Air Quality Standards.
Amendments to the Boxer bill are due by 9 a.m. today, though most committee Democrats said last week that they were largely satisfied with the existing bill. Republican committee members insisted that they had not even begun thinking about that stage of the process given the partisan infighting that has put the entire markup process in jeopardy.
"I have to finish reading the bill, and I have to find out what it costs before I write my amendments," said Sen. Lamar Alexander of Tennessee, an EPW committee member and the chairman of the Senate GOP conference.
"The fact of the matter is, the complete analysis gives you a much better idea of what kind of amendments you ought to be working on," added Sen. George Voinovich (R-Ohio), who has placed a "hold" on Robert Perciasepe's confirmation to be EPA deputy administrator until he gets answers on the economic implications of the House-passed climate bill (H.R. 2454) and its emerging Senate counterpart.
EPW Committee ranking member James Inhofe (R-Okla.) is also preparing a Republican counter hearing for this week on the climate bill, though details have not yet been released.
'A very fine balance'
Boxer last week said she could take multiple days to finish work on the bill.
"I honestly can't predict, but I do like to work long hours when I'm marking up," she said. "I think it gets things done better. I'd anticipate long, long, long hours every day we're in markup."
Several sources tracking the debate said Boxer may end up accepting a brief delay -- perhaps for a couple of days this week, or until the week of Nov. 16 or Nov. 30 -- while waiting out the Republicans and working back channels to find a solution.
"The Senate is a unique place," said Bob Hurley, a top Republican EPW Committee staffer from 1980 to 1990. "You don't want to force something before it's ripe. On the other hand, in order to make it ripe, you have to do a little bit of forcing.
"It's a very fine balance," added Hurley, now a principal at the Accord Group. "If you push too soon, you can create problems for yourself. But if you don't push at all, you may never get anywhere. It's a combination of where the votes are, who's involved in the discussions on both sides of the aisle and obviously member relationships."
"It seems close to a parody of a card game at a Wild West saloon," said Frank O'Donnell, head of the environmental advocacy group Clean Air Watch and a veteran observer of past environmental battles on Capitol Hill. "Is someone, or everyone, bluffing?"
On the surface at least, EPW Committee Democrats and Republicans have been anything but civil toward each other. Last week's hearings on the legislation, which lasted three days, included several heated exchanges before committee members, with Voinovich at one point complaining that Boxer was "editorializing" on other members' comments.
Spokesmen for both sides issued dueling statements about the prospect of a GOP boycott loaded with the now familiar partisan rhetoric.
"Senator Boxer believes that it is in the best interests of the American people for Republicans and Democrats to work together toward independence from foreign oil, toward protecting our children from pollution and toward creation of millions of clean energy jobs," Boxer spokesman Peter Rafle said yesterday. "Therefore, she urges the Republicans to join us at the opening of the markup on Tuesday morning."
But Rafle added that Boxer "will use all the tools at her disposal to move forward."
Republicans have linked their boycott threat to Voinovich's three-month-old demand for a larger set of EPA economic modeling runs on the House climate bill, including less optimistic assumptions about the long-term growth of nuclear power. Voinovich has said he would settle for the same data but focused now on the Senate legislation.
"The taxpayers expect us to know what this 1,000-page bill costs before we start voting on it," Inhofe spokesman Matt Dempsey said late Friday, moments after Boxer formally noticed the markup. "They will only know this if we have a full economic analysis of how Kerry-Boxer affects them. This bill threatens Americans with trillions of dollars in higher energy taxes and millions of lost jobs.
"We cannot move forward in the legislative process if we don't have a complete understanding of this bill," Dempsey added.
EPA Administrator Lisa Jackson in August denied Voinovich's request, saying that the Energy Information Administration had done much of the work he wanted (E&E Daily, Aug. 7). And Jackson's spokeswoman, Betsaida Alcantara, released a statement Friday that defended the latest round of EPA modeling, while offering no sign that the Obama administration would bend to the Republicans' demands.
"Administrator Jackson believes that the Oct. 23 analysis should be perfectly adequate at this stage of the process, given the rigorous analysis, the lack of numerous, detectable legislative changes since the House-passed bill, and the large number of computer modeling runs in the very recent past on very similar legislative provisions," she said.
Meanwhile, Sen. John Kerry (D-Mass.) last week asked EPA "to conduct a full economic modeling of the bill that will be voted on by the full Senate," Alcantara said. "EPA has committed to doing that modeling and will continue to work with Senator Voinovich to answer any concerns he has with this modeling."
Boxer said EPA's work to date represents the "longest study there is." And she questioned the sincerity behind the Republicans' demands for a CBO report when that office is not required by statute to produce an analysis until the legislation has passed out of committee.
A threat to 60-vote efforts?
Both sides of the EPW Committee are treading into seldom seen territory as they spar over the climate bill.
The last official boycott came in October 2003 when Democrats were in the minority. At issue: the EPW confirmation vote for Michael Leavitt to be President George W. Bush's EPA administrator. Democrats said at the time they were trying to obtain more thorough responses from the Utah governor regarding his views on issues he would deal with if put at the helm of EPA.
The EPW Committee's Republicans called the boycott "insulting" and questioned whether presidential politics had anything to do with the move considering two of the committee's Democrats, Sens. Joe Lieberman of Connecticut and Bob Graham of Florida, were running for their party's nomination to face Bush in 2004.
The Democrats' boycott ended after two weeks, with the committee voting 16-2 to confirm Leavitt. Boxer skipped the confirmation vote to protest Leavitt's responses to questions on a range of energy and environmental matters (E&E Daily, Oct. 16, 2003).
Senate Democratic aides say Boxer is pushing ahead now for a markup on the climate bill given the significant role that at least four other committees still need to play in the process. Kerry, the Democrats' point person on the climate bill, last week called the process in the EPW Committee the "foundation" for his larger campaign to win over 60 votes and defeat an expected GOP-led filibuster.
Sen. Sheldon Whitehouse (D-R.I.) called the threat of a GOP boycott "theatrics."
As for the merits of the Republicans' request, Whitehouse argued, "I think the notion that absolute exactitude before the bill goes in, when the EPA has come so close to figuring out its economic effects, doesn't make any sense in light of the fact the amendment process is going to move the results around more than the level of uncertainty that exists right now."
But some question whether Boxer's efforts now could foretell trouble as Kerry tries to work with moderate Democrats and Republicans.
A former Senate Democratic staffer warned that an end-run around the committee's process may not be the best strategy when appealing to swing-vote senators. "That product is totally toxic," the former staffer said. "It's basically worthless."
Wheeler, the former EPW Republican staff director, said that Boxer's move to bypass longstanding rules could hurt the Democrats' chances on the floor for winning the votes of committee members like Voinovich and Alexander, as well as GOP moderates off the committee like Sens. Susan Collins and Olympia Snowe of Maine, and Judd Gregg of New Hampshire.
"They all believe in the process and minority rights," Wheeler said. "The fastest way to ensure that no Republican ever supports this is to do something like that."
Industry attorney Scott Segal said there is "an awful lot of bipartisan common ground" to be found on climate legislation.
But he said that the partisan tensions of the EPW Committee that are now boiling into public view won't help the process.
"Boycotts and discharge petitions are both exceedingly rare," added Segal, a lawyer at Bracewell & Giuliani who represents the electric utility and petroleum refinery industries. "They are signs that the process has broken down. On such a major bill like climate change, these actions would put us in uncharted waters. That can't be good."
Click here to read the new version of the Senate climate legislation.
Schedule: The markup is tomorrow at 9 a.m. in 406 Dirksen.