It's Called Democracy

03/16/2009 01:10 pm ET | Updated May 25, 2011

San Francisco -- In some ways it's amusing to watch the seething indignation and shock from Republicans over the idea -- being floated by the Obama administration and Senate Democratic leader Harry Reid -- that a revenue-generation auction of carbon permits might be adopted by the Congress as part of the federal budget process. The formal name for this budget process is "reconciliation," and it was adopted by the Congress back in 1974. Since that time, Congress has broadened its applicability, but its original function was quite simple: To ensure that, if a simple majority of the Senate wanted to adopt legislation that would generate federal revenues and hence reduce the deficit, a filibuster could not prevent such a revenue-increasing measure from passing.

In 1996 the Republican Congress broadened "reconciliation" to ensure that a majority of the Senate could also pass a bill that made the federal deficit worse. And in 2001 the Bush administration took advantage of that broadened reconciliation provision to pass the Bush tax cuts, which totaled $1.6 trillion dollars. Reconciliation was also used by the Bush administration and its allies in Congress to pass two other major tax-cut bills that Bush supported.

Now the Obama administration comes along and suggests that we ought to start reducing the deficit. President Obama wants to require oil and coal interests to obtain permits for the pollution they emit. The permits would be sold at a free-market auction and the proceeds would be used to help reduce the nation's dependence on fossil fuels and for additional tax cuts. Some in the House and Senate might want to use the revenues from this auction differently -- perhaps to reduce the deficit. But no one doubts that the cap-and-auction system would yield major federal revenues -- revenues that would otherwise require a tax increase. In fact, though, leading Senate Republicans are attacking Obama's "cap and auction" proposal as a $750 billion tax increase.

But if they are right, then the budget reconciliation process is precisely the way the Congress should deal with the proposal! That's how Congress passed Bush's three tax cuts, and it's also how Congress passed Bill Clinton's 1994 budget with its tax increases. But no, now Senate Republicans say that reconciliation shouldn't be used for anything so big. Alaska Senator Lisa Murkowski says, "I also strongly disagree with attempts to do an end-run around Congress..." An end run around Congress? Excuse me, but reconciliation still requires a majority of both Houses to pass the budget. If anything is getting an end run, it's the tyranny of minority rule in the Senate.

Murkowski isn't alone. Senator John McCain claimed, "It's not the way to address an issue of that magnitude ..." Oh? The 2001 Bush tax cuts were a good deal bigger. And how did Senate Republicans vote on whether to adopt those tax cuts by a simple majority? Well, John McCain honorably voted "Nay," but among Senate Republicans he was almost alone. Senate Minority Leader Mitch McConnell voted "Yea." So did Olympia Snowe and Susan Collins. Ditto Senator Murkowski's father, Frank. And how did occasional deficit hawk Judd Gregg react when Bush drove an enormous hole through the fiscal safety of the nation under reconciliation? He, too, voted "Aye." Now what does he say about using the normal democratic process -- majority rule -- for cap and auction? It would, Gregg told the administration, "create real consternation [and] be regarded as an act of violence" against the minority. "There would be no point [cooperating] in the exercise if we are going to get blindsided by reconciliation."

Now you can't, under the Senate rules, pass a comprehensive energy and climate bill through reconciliation. All you can do is create the auction and its revenues. But some in the minority fear that if reconciliation is used for that part, a majority of the Senate might create a real auction, with no payoffs to industry -- and all the money devoted to public purposes. Others just don't want any climate legislation to pass, and hope that minority rule will give them their wish. And just this week eight Democrats joined Republicans in urging minority rule -- 60 votes -- so it's not clear that the leadership currently enjoys the simple majority option.

But no one, no one, is asking the real question. Why aren't we outraged that members of the U.S. Senate have enshrined minority rule so deeply in their culture that even otherwise responsible and capable public servants like Gregg find it unacceptable to allow the majority to rule? I may be particularly sensitive on this topic because I have the misfortune to live in the only state in the union -- California -- that requires a two-thirds vote to pass its budget. Minority rule has, essentially, bankrupted and ruined the state and its public services.

If the founders had wanted the Senate to work on a supermajority, they could have written it into the Constitution -- and indeed, for treaties, they did. And if Congress as a whole wanted to require that important legislation receive a supermajority, it could write such a law. But instead Congress wrote a law specifying that bills that raise revenues should not be held hostage to the filibuster. So why do half of the present Senate seem convinced that they (like the California legislature) should be uniquely privileged among legislators in democracies -- and that the minority should rule? I understand why it's convenient. Minority rule makes each senator more important. But is it right? Is it wise? Is it democratic?

Actually, there is one other historical precedent for institutional empowerment of the minority -- it was the Polish parliament. And as a result, Poland disappeared from the map for a century. Are we trying to join them?