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Senses of Congress: The Green New Deal in Context

By: Alan Masinter

April 8, 2019

My first reaction to the Green New Deal was that this was much ado about nothing. The resolution,1H.R. Res. 109, 116th Cong. (2019); S. Res. 59, 116th Cong. (2019). introduced this February, styles itself as a “manifesto calling for sweeping changes to American society,” but could just as easily be characterized as a short, non-binding wish-list: cheap talk from new members of Congress.

Politicians discussing the Green New Deal may be referring to a broader set of policies to be established across many years and statutes, given the obvious connection to Roosevelt’s New Deal of the 1930s. But it was the Green New Deal resolution, rather than any specific proposal for legislation, that seems to really have sparked debate. Articles published in its wake discussed everything from its likely effect on startup companies to the Hamiltonian philosophy of government that’s arguably inherent in the Resolution. Writers have taken the opportunity to expound on the necessity of establishing a transformative climate policy as soon as possible, or to insult the resolution for being overly idealistic. Though most admit the Green New Deal Resolution is “vague on the details” (or praise it for avoiding fights over such details), I couldn’t help but wonder: was everyone forgetting—or not understanding—that it’s not “real” legislation?

But even though there’s no binding law in the Green New Deal Resolution, I’ve come around to the idea that it still really matters. There is, in fact, a longstanding practice of non-binding congressional resolutions and other forms of “soft law” that, despite having no binding legal effect, play a significant role in the political process. In their article on the topic, Jacob Gersen and Eric Posner contrast this body of law to “hard law,” which has gone through the formalities required to be legally binding.2Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 Stan. L. Rev.  573 (2008). Soft law is significant in the international context: for example, the Universal Declaration of Human Rights has no formal legal effect, but nevertheless has a great deal of normative authority, and has had a huge influence on subsequent treaties and laws.3Id. at 592. Other soft law materials include Presidential signing statements on new legislation, regulatory guidance from administrative agencies, and the dicta of judicial opinions.4Id. at 575-76. All lack the force of law, but nonetheless have important real-world effects.

Non-binding resolutions like the one for a Green New Deal are an important part of this body of soft law. Congress uses resolutions for a diverse array of purposes: from frivolities, like recognizing Pi day.5H.R. Res. 224, 111th Cong. (2009) (recognizing March 14 as an appropriate day for recognition of the ratio of the circumference of a circle to its diameter). or the victory of a college football team,6Gersen, supra note 2,n. 37 (citing S. Res. 12, 109 Cong. (2005), a resolution passed to congratulate a college football team for winning a championship). to much more serious statements on domestic and foreign policy.7See id. at 580 nn.31–35 (citing resolutions calling for maintenance of an arms embargo on China, recognition of the Armenian genocide, revision of regulations regarding disaster relief, and others). Non-binding resolutions are often termed “sense of” resolutions after their common language declaring that “it is the sense of Congress” (or one of its chambers) that something is the case.8See Christopher M. Davis, Cong. Research Serv., 98-825, “Sense of” Resolutions and Provisions  (2016). The Green New Deal resolution, as introduced in the House and Senate, falls in line with this practice, with each resolution declaring it to be “the sense of” the respective chamber that “it is the duty of the Federal Government to create a Green New Deal.”9H.R. Res. 109, 116th Cong., at 5 (2019); S. Res. 59, 116th Cong., at 4–5 (2019).

Gersen and Posner posit two theories for the use of soft law in the domestic context.10Gersen, supra note 2, at 586–94. First, a resolution can be a strategic instrument to influence private behavior by signaling that Congress may soon pass a hard law on the subject. This gives the public time to adjust behavior in advance to make it easier to comply with the law when the time comes. This shift in behavior may even preempt the need for binding legislation in the first place. Historical examples include instances where, after Congress passed a resolution on each respective topic, the recording industry adopted guidelines for notice of explicit lyrics in music; universities adopted guidelines on illegal file-sharing; and food companies restricted advertising for “junk food” during children’s television programming.11Id. at 591.

Although it is not so plausible that the current Congress would pass major climate legislation, the Green New Deal resolution nonetheless provides some indication that a later Congress might do so. A credible signal that Congress is committed to major climate action would encourage private actors to plan for a future consistent with such action. Some oil companies, for instance, are already beginning to plan (at least in the very long-term) for a time when their primary source of revenue will no longer be viable. Support for the Green New Deal would further encourage this kind of planning by serving as a signal to expect stronger climate action in the (near) future.

One issue, though, is that current support for the Green New Deal is not necessarily all that credible. As Gersen and Posner explain, one of the basic insights from signaling theory is that a statement is credible when accompanied by costly action.12Id. at 589. Floor statements, for example, are generally not very credible indicators of legislators’ actual views, as there is typically little cost to entering a statement in the Congressional Record.13See id. at 598. Support for the Green New Deal would be more credible to the extent that supporting it may upset any of a legislator’s constituents or detract from other priorities.

The second theory posited for the use of soft law is as an epistemic instrument to convey information about Congressional beliefs, and to spread those beliefs.14Id. at 591–94. To the extent that one believes that members of Congress make sincere, informed votes, these votes can be treated as part of an informal national or global debate about a particular moral or descriptive fact.15See id. at 591–93. In this way, expressions of support for the Green New Deal Resolution may help to convince the public of the seriousness of climate change. On the other hand, those who do not ascribe such noble values to members of Congress may be less swayed.

Stronger support is better under either theory. That is, one would expect the impact of a non-binding resolution, as either a strategic or epistemic instrument, to be roughly proportional to the strength of the support for that resolution. But despite its mixed support in Congress, the Green New Deal resolution has sparked a disproportionate amount of attention. It has inspired media coverage and public engagement regarding climate change in a way that a more pragmatic, incrementalist, and legally-binding proposal, perhaps, could not. This suggests that its sponsors, by introducing the measure, may have already accomplished much of what they set out to do.

Alan Masinter, J.D. Class of 2019, N.Y.U. School of Law.