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Things are finally aligned in the US Congress to pass sweeping climate change legislation. The new chairman of the relevant committee, California's Henry Waxman, has been on the right side of the issue for years. His deputy, so to speak, Massachusetts' Ed Markey, has equally strong bona fides. Together, they've put together a fairly robust climate change bill, which has won plaudits from most of America's major environmental groups. The Democratic party enjoys a five-seat majority in a 435-seat body led by Nancy Pelosi, for whom climate change is a top priority.

There's just one problem: the other house of Congress.

The US Senate is, to paraphrase Norm Orenstein, a broken institution. It is paralysed by egotism, both vis-a-vis its individual members and the entire body's regard for itself. It is designed in an undemocratic way, and it piles on to that undemocratic design by standing forthrightly behind undemocratic rules that have no particular basis in the US constitution

For some issues, that doesn't spell doom. The Senate's current make up (58 Democratic members, 41 Republicans and one liberal Democrat yet to be seated) means that the filibuster, or the threat thereof, empowers a bloc of conservative Democrats and moderate Republicans to make a big mark on major legislation. But it doesn't give the Republicans reliable veto power over President Barack Obama's entire agenda. This is how the debate over the economic stimulus played out, and, to a lesser extent, the federal budget as well.

But the Senate seems at times as if it's designed to choke the life out of climate change legislation. One major problem is that the constitution designed it to give the smallest states in the union the same amount of representative clout as the most populous, which skews the body's politics in a number of ways.

Republicans hold 41% of the Senate's seats, but represent a significantly smaller percentage of the nation's population. Along the same lines, Democrats from coal- and oil-producing states and manufacturing states have disproportionate power relative to their states' sizes. Combine that with the fact that most major legislation can't pass without a 60-vote supermajority behind it, and you can see why climate change legislation (or climate change legislation that's up to the task of forestalling crisis) isn't a sure thing.

That's a shame, because the Waxman-Markey bill (the American Clean Energy and Security Act of 2009) is a fairly robust bill. It would create a cap-and-trade system that would reduce greenhouse gas emissions to 83% below 2005 levels by 2050 (and, perhaps more importantly, would enforce steep reductions early – 20% reductions by 2020 and 42% by 2030).

It has some potential shortfalls, too, most of which are meant to short-circuit the political realities I outlined above. It would hand out some emissions allowances to energy-intensive manufacturing industries, instead of auctioning 100% of them. It contains price-control provisions meant to keep allowances from becoming too expensive too quickly, but which could ultimately make meeting yearly emissions goals difficult. And it would allow companies to account for emissions reductions by buying "offsets", many of which are extremely dubious, or, at the very least, troublingly opaque.

But back to the politics. It's hard to know why Waxman and Markey included these loopholes at the outset. Maybe those provisions will serve as a sign of good faith and help the bill earn early support from sceptical Democrats. But even if the bill had started out flawless, the Senate would almost certainly have inserted those flaws, and many many more, before subjecting it to a three-fifths majority cloture requirement which it might well fail.

Which is all a very long way of saying: congratulations to the House of Representatives! You're doing admirable work. We wish you the best of luck. You're going to need it. But you must be used to the frustration by now.
 

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