Last May, in a rare display of bipartisanship, the House and Senate overwhelmingly approved a congressional review process for the Iran nuclear agreement — a process President Barack Obama initially said he didn’t want and didn’t need.
The president eventually came around to endorsing the bill when he realized congressional support for a review role was running at veto-override levels. It also helped that the final compromise tilted heavily in the president’s favor. The agreement would take effect unless Congress enacted a joint disapproval resolution over the president’s likely veto. That would take two-thirds of both — a near-impossible feat in today’s polarized environment.
In a previous column (“Congress Has an Overriding Problem with Iran Deal,” April 13, 2015), I explained Congress’s three options: enact an approval or disapproval resolution, or do nothing. To ratify a treaty, the president needs two-thirds Senate approval. The review act, on the other hand, says the president wins if majorities in both chambers enact an approval resolution; either chamber rejects a disapproval resolution (or one-third-plus-one of its members sustains a veto); or if Congress collectively fails to act. (Spoiler alert: Congress excels at the latter option.)
That seems complex enough, but then both chambers threw in a few more procedural permutations to further complicate things. The Senate has the added option of talking something to death unless three-fifths of its sitting members (60 senators) invoke cloture to bring the matter to a vote. And that’s the course Senate Democrats chose, even though it entailed a higher threshold for success — 41 votes to block cloture versus 34 votes to sustain a veto.
Why did Senate Democrats choose the higher hurdle? The answer came to me as a recollection from my grade school days in the 1950s and our atomic bomb drills called, “duck and cover.” At the sound of an air-raid siren, students duck under their desks, assume a fetal position, and cover their heads (though this will not save you at ground zero).
That’s exactly what Senate Democrats opted to do when the Iran political bomb landed in their laps. They metaphorically ducked under their desks and covered their backsides in hopes they would be spared any fallout. Moreover, they were providing the president political cover from the reality of majority opposition in Congress, enabling the White House instead to hail the Senate non-vote as a great victory. In support, the White House could point to four failed cloture votes on which the deal’s opponents could not muster 60 votes to end a filibuster — netting a paltry 58 senators at the high-water mark. Let’s just say the whole charade will not make the next edition of “Profiles in Courage.”
The House took another route that was almost as diverting procedurally. At first it followed the statutory path of clearing a disapproval resolution through the Rules Committee for an up-or-down vote. But then some eager legal beavers in the GOP caucus glommed onto a provision in the review bill requiring congressional access to all relevant documents. They claimed that the president had not turned over a secret inspection document and therefore that the congressional review period had not legally begun.
The controversy forced Republican leaders to withdraw the disapproval revolution and instead make in order three other measures: a sense-of-the-House declaration that the president had not complied with the law; a measure to suspend the president’s authority to waive the Iran sanctions; and, finally, to preserve the review act’s intent of letting members vote for or against the agreement, an approval bill introduced by Speaker John A. Boehner (even though, by the legalistas’ reasoning, the official clock for considering such a bill was not yet ticking). The House passed the first two measures and rejected the Boehner bill — all on near party-line votes. Everyone then crawled under their desks for a happy-nap when the game-ending buzzer sounded on Sept. 17, Constitution Day.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a congressional fellow at the Woodrow Wilson Center and former staff director of the House Rules Committee.
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