Low-Energy Fridays: Harris Cares About Climate, but What About Institutions?

A new Democratic presidential candidate will be on the ballot this year, most likely Vice President Kamala Harris, so it’s no surprise that her record on energy policy is garnering some attention. We’ve already covered why political candidates exaggerate the effects of their energy policies on the campaign trail, but an important unknown at this point is to what extent Harris would push the envelope of presidential authority in energy policy even further than it has been. One noteworthy claim in Harris’ energy record is her idea that the Senate filibuster should be sacrificed to pass a Green New Deal. This indicates to me that Harris may see policy as more important than institutions, and this raises some questions about what her energy policy implementation could look like.

One troubling trend in American politics is a growing belief that institutions are impediments to popular policy implementation rather than the bulwarks that preserve liberty and democracy. The nation’s founders knew that convoluted restrictions on the execution of governmental authority could prevent the government from doing things people desired, but they viewed that burden as worth bearing if it constrained elected officials from unilaterally imposing their will on the population. The U.S. Senate, in particular, is structured to avoid a “tyranny of the majority,” by requiring broader agreement than simple majority votes.

For most of U.S. history, the Senate enjoyed a tradition of unlimited debate, where senators—if an issue was important enough to them—could debate continuously and effectively prevent legislation from passing. In 1917, a cloture rule was adopted, requiring a two-thirds majority vote to end debate and vote on legislation; this was later updated to the current 60-vote requirement. Traditionally, when presidents were elected, Congress would at least appreciate that voters were choosing the new president’s policies, and a measure of bipartisanship in implementing the newly elected presidents’ positions was the norm.

That changed after the 2008 election when Republicans’ massive unpopularity led to an electoral blowout and a Democratic “supermajority,” where with 60 Democratic senators, bipartisanship was not required to implement President Barack Obama’s agenda. But Sen. Ted Kennedy’s unexpected death in 2009 and the special election of Republican Scott Brown put Democrats in a bind, and they chose to utilize budget reconciliation—a process in which budget-related laws are exempted from cloture requirements—to implement health care reform without Republican support. The deepening partisanship of government policy propelled an ascendant Republican Tea Party movement, and the rest is, as they say, history (even the commonly critiqued use of budget reconciliation to pass President George W. Bush’s tax cuts was bipartisan with the support of 12 Democrat senators under a Democrat-controlled Senate).

Cloture requirements are effectively the last barrier that prevents the Senate from functioning like the House of Representatives. A certain measure of comity and bipartisanship is required for the Senate to function, but eliminating cloture would open it up to precisely the “tyranny of the majority” that John Adams warned of. To see how that would damage institutional trust, look no further than the elimination of cloture requirements for judicial appointments.

Bringing this back to Harris, what was revealed about her energy policy philosophy is that institutions are less important to her than policy implementation. Under a potential President Harris, I would anticipate that whatever levers could be pulled to adopt her preferred energy policies would be pulled. One might think that that has been true of all past presidents, but it may surprise people to hear that a measure of restraint has been displayed by most presidents thus far—even Presidents Joe Biden and Donald Trump.

One example of abuse of power in the energy policy space has been the use of the Defense Production Act (DPA). R Street critiqued Trump’s proposed utilization of the DPA to prop up fossil fuels and similarly has opposed the Biden administration’s actions under the DPA to further subsidize renewables. But one reason we’ve called the DPA the “pandora’s box of bad policy” is because its opportunity for abuse has not been exhausted. A President Harris likely would go further down this road.

The problems caused by presidents adding an authoritarian tinge to their policy have been seen in America before, particularly with the “Nixon shock.” President Richard Nixon used his authority to implement widespread price controls, which then led to the “stagflation” of the 1970s. Congress wisely refused to sustain this authority, but under the DPA and other laws, presidents have plenty of opportunity to abuse power.

What we already know about Harris, given her endorsement of the Green New Deal, is that she is a step to the left of Biden on climate policy and stands in stark contrast to Trump. What we don’t know is how far Harris would go to implement such policies. Given her past comments, it’s fair to question whether Harris would respect things like the Supreme Court’s ruling in West Virginia v. Environmental Protection Agency or make good on President Biden’s threat to utilize the DPA to force actions from oil refiners. Ultimately, institutions are what preserve the liberty of everyday Americans. The big-picture question about the future of energy policy under either Harris or Trump is not simply what their preferred mix of energy utilization is, but whether they promise to respect the boundaries of their authority and build up the credibility and quality of the institutions that constrain them.