Moment of truth nears for Iranian nuclear deal

A congressional vote on the Iranian nuclear deal (IND) is permitted under the Iran Nuclear Review Act of 2015 (Corker bill), which was passed by an overwhelming majority of both houses of Congress for the avowed purpose of giving Congress “a say” in the matter. A resolution of approval or disapproval may be passed within 60 days of the finalized deal being presented to Congress (establishing a deadline for action of September 17, i.e., this Thursday).

SAFE is on record as favoring disapproval of the IND, which in our view will do more harm than good. Should Congress reject the Iranian nuclear deal?
8/24/15 This entry won’t repeat what has already been said, but it will note some recent developments that reinforce our concerns.

A majority of the House voted against the IND last week, while a minority in the Senate forced a cutoff of debate with a filibuster. If this pattern holds, no congressional resolution of disapproval will be sent to the president; accordingly, he won’t be forced to either accede to such a resolution or take responsibility for a veto. We consider the use of a filibuster in this situation to be odious, but the provisions of the Corker bill don’t prevent it. DC update: three big battles in September,
8/31/15.

This is only the latest in a series of events that have demonstrated how the members of Congress are choosing to abdicate their responsibilities and play a diminishing role in our system of government. Listen up Congress, because you are failing,
3/2/15.

Various ideas have been offered for bringing the debate about the IND to a more constructive conclusion. A review follows of the apparent options, of which we would submit that options 1 and 6 are the most promising.

1. Persuade two Democratic senators who support the IND to nevertheless vote against a filibuster. – Here are the relevant voting results from last week; note that although a filibuster was sustained in the Senate, another vote will be taken this week and could have different results.

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A shift of two Democratic senators would suffice to break the filibuster, thereby clearing the way for a congressional resolution of disapproval. Why not Senator Tom Carper and Senator Chris Coons? Although both of Delaware's senators have publicly explained their support for the IND, we’re not aware that either has sought to justify the use of a filibuster in the IND context. Indeed, Senator Coons has publicly expressed qualms about a filibuster. Will Dems filibuster the Iran deal? Susan Ferrechio, Washington Examiner,
9/9/15.

"I think it would be really regrettable if we didn't ultimately go to the floor and cast our votes for or against this deal," Coons told CNN.

Mindful of the “nothing ventured, nothing gained” adage, we
have urged Senators Carper and Coons not to back a filibuster.

Without attempting to challenge their decisions to support the IND, we also took the opportunity to point out that the situation in the Middle East is steadily deteriorating –belying any notion that the IND will foster better behavior of the Iranians.

The conflicts raging in Syria have resulted in the dislocation of millions of people over the past several years. Syrian civil war prompts world’s biggest refugee crisis, David Williams, Daily Mail,
9/3/13. Now a flood of refugees is arriving Europe and demands are mounting for the US to do its share, the situation has gained recognition in the Western world as a humanitarian disaster. The politics of the Syrian refugee crisis explained, Janell Ross, Washington Post, 9/11/15.

The latest development is Russian boots on the ground in Syria, apparently in collaboration with Iranian forces. US dithering with respect to that country has produced a veritable powder keg that could explode with disastrous consequences. In major humiliation for Obama, Iran sends soldiers to support Russian troops in Syria, Tyler Durden, zerohedge.come,
9/10/15.

If our efforts fail, hopefully others will have better luck with senators in their states. Again, a shift of two votes out of 42 would break the filibuster and permit a substantive vote on the IND. We believe that the 535 members of Congress deserve no less.

2. Challenge the Sept. 17 deadline. - The Corker bill provides that Congress will be furnished with all relevant documents before the 60-day review period for the IND begins to run. There are two known agreements between the UN inspectors (IAEA) and Iran that were requested by Congress but have not been provided to date. Accordingly, it could be plausibly argued that the clock has yet to start running.

This claim is being raised too late in the day, however, to carry much weight. The GOP leadership has accepted the September 17 deadline since July. A House resolution based on the claim will go nowhere, even though it passed on a party-line vote, and House Speaker John Boehner’s reference to possible litigation seems even more remote. House votes to accuse Obama of withholding Iran documents, Cristina Marcos, Washington Examiner,
9/10/15.

3. Claim the IND is actually a treaty. – At first blush, this argument has considerable appeal. We doubt the founders ever imagined that the requirement that 2/3 of the Senate approve treaties could be circumvented by labeling long-term agreements with other nations as “executive agreements.” There are, however, some court-tested precedents.

To set up the argument, a senator would raise a point of order that the IND is a treaty, and should be reviewed as such rather than proceeding as contemplated by the Corker bill. Once the point of order was upheld (by majority vote), the filibuster would be out the window since treaties require affirmative approval by the Senate.

The treaty claim was considered and rejected during consideration of the Corker bill, however, so it would be a stretch to bring it up now. Sen. Tom Cotton was right, Robert Romano, netrightdaily.com,
9/11/15.

4. Bully banks not to transfer blocked funds. – Senator Ted Cruz has suggested a three-prong approach. He rolled it out at the Capitol Hill rally against the IND on September 9 and has also written to Senator Majority Leader Mitch McConnell and House Speaker John Boehner. We can still stop the Iran deal – here’s how, Sen. Ted Cruz, politico.com, 9/10/15.

The essence of Cruz’s proposal is to avoid elaborate “show votes” that are “doomed to fail.” The goal should be to stop the IND, or at least the transfer of blocked funds to Iran, not to establish a record of attempting to do things and failing.

First, both leaders should formally declare that the president has not submitted the IND to Congress as required by the Corker bill, because the side deals weren’t provided. (See option 2, but the need for a vote would be eliminated.)

Second, Leader McConnell should schedule a vote on a resolution expressing the sense of the Senate that, if the IND had been introduced as a treaty, it would not be ratified. (See option 3, but it would not be necessary to demonstrate that the IND actually was a treaty for legal purposes.)

Third, given the probability that the president would ignore actions one and two, the big US banks should be warned of potential civil or even criminal liability for transferring funds pursuant to an agreement (the IND) that had not been authorized in accordance with applicable law (Corker bill or the normal treaty process, take your pick). According to Cruz, legal counsel for the banks would not take such warnings of what might happen under the next administration lightly.

Having spent years advising major corporations in private practice, I can say that their general counsels will likely tell them their legal exposure is real, which could well result in the banks deciding not to release the funds to Iran, despite the president’s actions.

Cruz also holds out an olive branch to McConnell and Boehner, a nice touch given past strains in his interactions with the two leaders.

It is no secret that they and I have not always agreed (to put it mildly), but this is an opportunity for them to show bold leadership. And I will readily sing their praises; as I told the Capitol rally yesterday, with regards to leadership, if they will only do the right thing . . .

Senator Cruz deserves high marks for creativity, but this approach seems “too clever by half” and we don’t think the American public would understand it. Let’s keep looking!

5. Lose the battle, win the war. – Here’s the apparent game plan of many establishment Republicans, which amounts to the polar opposite of the Cruz approach. Take lots of votes, force Democrats to support the IND at every turn, and then slam them when this deeply flawed deal goes sour in the future. GOP aims to make Democrats pay politically for Iran vote, Burgess Everett & Seung Min Kim, politico.com, 9/10/15.

Republicans are plotting to make Democrats pay dearly for backing an agreement the GOP argues hinges on an historic enemy of the United States playing nice. Senate Majority Leader Mitch McConnell plans to return to the floor next week to force Democrats to take more votes Republicans say they'll regret as soon as Iran violates the terms of the deal or sponsors terrorist attacks, which critics believe is just a matter of time.

If our concerns about the IND are valid, this kind of thinking seems grossly irresponsible. It should not take another 9/11 attack (or worse) to make the nation’s political leaders start realistically assessing the risks involved; they should be doing so right now!

6. Abolish the filibuster. – This isn’t a new idea; we’ve suggested it before as a way of breaking the gridlock that is making decisive action by Congress nearly impossible. Something’s got to give in the US Senate, 2/23/15. Once the Senate Republicans went nuclear, they would be able to pass a resolution of disapproval of the IND, appropriation bills, and goodness knows what else and send them to the president’s desk.

Most members of the Senate seem comfortable with the filibuster, perhaps because it enhances their personal status. The only recent comment about eliminating it of which we’re aware came from the other chamber. House GOP delays Iran vote after conservatives revolt, Pete Kaperowicz, Washington Examiner,
9/9/15.

"They have the power to do it, they have just been unwilling to do it," Rep. Raul Labrador, R-Idaho, said Wednesday of Senate Republican leaders, during a roundtable with House conservatives. "The Senate leadership needs to stand up and go nuclear on this."

Since Senator Cruz seems to be the champion of radical ideas, SAFE has written to him about abolishing the filibuster. Hopefully
the suggestion will bear fruit.

Even if the filibuster was abolished, of course, the president could continue to veto legislation that he didn’t like. Such a change would force him to take direct responsibility, however, and might conceivably result in an attitude adjustment.

According to polls, the IND is not viewed with great favor by the American public. On Iran, Obama wont the fight but lost the argument, Washington Examiner,
9/10/15.

In July, when the campaign of persuasion had just begun, 33 percent supported the deal, with 45 percent opposed and another 22 percent undecided. Today, approval of the deal has plummeted to just 21 percent. Forty-nine percent say they oppose it outright, a small uptick from before, but the main development is that the ranks of the undecided have grown.

Up to this point, the president has characterized minority votes in Congress as supporting his position. Consider the
statement he issued, for instance, after the filibuster vote in the Senate last Thursday. One would never guess from reading it that the Senate vote was 58-42 against the IND.

Over the last several weeks, the more members studied the details of this deal, the more they came out in support. Today, I am heartened that so many Senators judged this deal on the merits, and am gratified by the strong support of lawmakers and citizens alike.

Perhaps the president would strike a similar note in vetoing a congressional resolution of disapproval, but if so the American public could decide what to make of it. We don’t see any reason for concluding at this point that an override attempt would necessarily be doomed to fall short.
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