The Iran deal & U.S. Senate rules: A guide

The current Senate whip count on opponents of a potential resolution disapproving of the Iran Deal stands at 34, and rumors of a possible filibuster of the Senate’s version of the resolution have begun to percolate inside the Beltway. The possibility that Democrats might filibuster the resolution, preventing Republicans from voting to reject the Iran deal raises the question: Why didn’t Republicans insist on a parliamentary procedure that would have required the Senate to vote on the resolution? Had they done so, the current political game between President Obama and the Republican-led Congress would look very different: Republicans would be assured a chance to vote against the deal and Democrats would be forced to a take a vote on the merits, instead of potentially ducking behind a procedural vote to prevent consideration of the resolution.

Last summer, amid talks between Iran and the so-called P5+1 countries, Senator Bob Corker (R-TN) and four Republican co-sponsors introduced a bill that would have required any deal agreed to by the parties to be reviewed by Congress under “expedited procedures”—special rules that ease a measure’s path through Congress, especially the Senate, where opportunities for obstruction abound. Since the early 1970s, Congress has repeatedly created sets of these procedures, including the rules for considering budget reconciliation bills, approving trade agreements, reviewing recommendations for closing military bases, and overturning executive branch regulations.

In many ways, Corker’s original 2014 proposal typified how these rules worked, including the following:

1. To prevent a review resolution from getting bottled up in committee, Corker’s proposal stipulated that after 15 days, the bill would be automatically reported to the floor.
2. Once on the floor, the motion to proceed to its consideration could not be filibustered, eliminating a common opportunity for a minority to block a vote on a bill.
3. The disapproval resolution could not be amended on the Senate floor.
4. Total debate on the bill in the Senate would be capped at 20 hours, eliminating the possibility of a filibuster.

Corker and Senator Lindsay Graham (R-SC) attempted to bring the bill establishing the expedited procedures to the floor in November 2014, but they were thwarted by Democratic opposition.

Fast-forward to March 2015, when Corker—this time, with Democratic co-sponsors—introduced the Iran Nuclear Agreement Review Act, which included none of these provisions. Instead, it prevented the president from using his existing authority to waive sanctions against Iran until Congress had time to review the deal. Congress could pass a resolution disapproving of the deal in that window, but because the president would have to sign such a measure, any congressionally-imposed limits on the deal would require the two-thirds necessary in the House and Senate to override a veto.

In the coming weeks, then, the Senate will find itself in one of the following three scenarios:

1. The Senate and the House pass a disapproval resolution with large enough majorities to override a presidential veto.
2. The Senate manages to pass a disapproval resolution, but lacks the votes to override a veto.
3. The Senate fails to pass a disapproval resolution.

How would including expedited procedures have affected these options? First of all, expedited procedures matter little under option #1. If deal opponents in the Senate have the 67 votes they need for option #1, they likely have those votes throughout the legislative process. Recent work by Patrick Hickey, for example, finds that in the House, less than 2 percent of presidential party members who voted with the president initially defect from the president’s position on a veto override attempt. Expedited procedures might speed up consideration under this scenario (and reduced the likelihood of individual acts of procedural chicanery). But at the end of the day, President Obama and congressional Democrats would incur negative political consequences regardless of the rules Congress used to get there.

The real impact of expedited procedures, then, would have been to make option #2 more likely and option #3 less so. Politically, Republicans would have benefitted from such an outcome, as would any Democratic opponents of the deal: guaranteeing votes on a disapproval resolution would make it more likely that opponents of the deal would be able to claim credit for doing their part to try to stop the president. The president and congressional supporters of the Iran deal would find themselves politically bruised (probably less so than in the case of a veto override) by the fight, but would still see the deal ultimately implemented.

Enacting the expedited procedures, however, would have been a tricky needle to thread. Assuming every Senate Republican would have been on board with such a plan, incorporating expedited procedures would have likely required the votes of at least six Democrats (to avoid a filibuster of the measure banning a filibuster) and possibly as many as thirteen Democrats (if Obama had threatened to veto a measure containing the expedited rules). For conservative-on-Iran Democrats like Senators Chuck Schumer (NY) and Bob Menendez (NJ), backing expedited procedures would have been a thorny political choice. Supporting special rules would increase the chances the resolution passes the Senate, scoring them personal political points. But a win for them individually would also be a victory for the GOP, even if a rejection of the deal was vetoed subsequently by the president. It’s hard to imagine enough Democrats would have been willing to accept the latter in exchange for the former.

What’s more, including expedited procedures for the resolution of disapproval might have come at a political price for congressional opponents of the deal. Expedited procedure provisions often prohibit proposing amendments to the bill on the floor of the Senate, and congressional Republicans would have likely been under substantial pressure to follow that precedent. Not only would limiting amendments have gone against a key promise made by Majority Leader Mitch McConnell at the start of the term, but it would have eliminated opportunities for Republicans to score additional political points—chances that are especially important if Congress is unable to stop the underlying deal.

As my colleague Sarah Binder points out, it’s certainly possible that congressional Republicans simply underestimated Democratic support for the underlying deal and did not see expedited procedures as a necessary backstop. It’s also possible Democrats will judge the political costs of preventing a vote too great to bear. But as both sides make their way through the rest of the debate, the episode should serve as yet-another reminder of the large and important political consequences of small and seemingly technical procedural choices.