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Iraq Irresolution Produces Procedural Pandemonium

It often is said that procedure drives policy. But the corollary to that is: The lack of clear policy preferences can drive procedure crazy. Put another way, policy uncertainty can produce procedural pandemonium. The irresolution in the Senate over its response to the president’s surge of troops in Iraq is a case in point — amid the flurry of activity surrounding the issue, Sen. Arlen Specter (R-Pa.) observed that nonbinding “sense of Congress” resolutions were “flying around like snowflakes.” [IMGCAP(1)]

It’s difficult to keep your players straight in such circumstances (even if you have a program), let alone decipher their plays (even if you think you know the rules). How do you begin to explain all this to someone who is not familiar with the game?

Let’s start at the beginning. Most close observers agree that the central message of the 2006 midterm elections is that the electorate wants a change in our Iraq policy. The people have grown frustrated and angry after four years, especially because the war was launched on bad intelligence. Members of Congress returned to Washington, D.C., in January with a clear mandate from voters on the war: Do something different!

President Bush provided the hook with his announced policy to increase our military presence by 21,500 combat troops to enable the Iraqi government to establish its own security capabilities, infrastructure and legitimacy. That is not the kind of policy change, though, that most Members (or their voters) had in mind.

Senate Foreign Relations Chairman Joseph Biden (D-Del.) took the lead with hearings before his committee followed by a vote to send his anti-surge resolution (H. Con. Res. 2) to the Senate floor. The resolution states in part that “it is not in the national interest” of the United States to be “increasing the United States military force presence in Iraq.” (Biden had agreed in committee to substitute “increasing” for “escalating.”)

Senate Armed Services member John Warner (R-Va.) immediately countered with his own, milder anti-surge language (S. Con. Res. 4): “The Senate disagrees with the ‘plan’ to augment our forces.” Warner rebuffed Biden’s offer to negotiate a compromise between their resolutions. At that point, Majority Leader Harry Reid (D-Nev.) stepped in and offered to make Warner’s language, with a few minor changes, the main vehicle for Senate consideration. Warner accepted the offer, and the changes were made.

However, Sen. Carl Levin (D-Mich.), with Reid’s blessing, transplanted the new language from Warner’s amended resolution (S. Con. Res. 7) to a Senate bill (S. 470). On its face, this switch from a concurrent resolution, which requires approval only by both chambers, to a bill, which must be sent to the president, seemed to be setting up a veto showdown with the White House.

But, as Levin explained it, it was done merely to get around the “clumsy” amendment dilemma posed by resolutions, which cannot be amended with complete substitutes. This is because the “resolving” clause of a resolution must first be perfected by amendments before the preamble (the “whereas” clauses) can be amended. Levin said the intention was to revert to a concurrent resolution after all amendments had been dealt with on the bill. Nevertheless, Warner did not co-sponsor the bill with Levin, signaling his insistence on resurrecting his concurrent resolution at the end of the process.

Notwithstanding Reid and Levin’s claim that their switch from a resolution to a bill was simply to facilitate amendments, they apparently were not contemplating the usual open amendment process for Senators. Specter reported in floor remarks that the behind-the-scene negotiations were aimed at severely restricting the amendment process and that the Majority Leader was threatening to “fill the amendment tree” himself to obtain that objective. Filling the amendment tree is something Majority Leaders of both parties have done in recent years to block others from offering any amendments.

Negotiations between Reid and Minority Leader Mitch McConnell (R-Ky.) broke down when Reid insisted on allowing only one Republican substitute, that of Sen. John McCain (Ariz.), that set benchmarks for the Iraqi government. This infuriated Republicans because a majority favored a substitute authored by Sen. Judd Gregg (R-N.H.) to prohibit cutting funds for the troops. The Majority Leader’s presumption in deciding which Republican amendment could be offered is uncharacteristic of the Senate. The ploy more resembles the audacity of House Democrats in 1981 when they rewrote the Republican/Reagan budget substitute in the Rules Committee.

As a result of this blowup, Reid’s attempt to invoke cloture — that is, end a possible filibuster on the motion to consider the bill — fell 11 votes short of the 60 needed. Even Warner and most of his GOP co-sponsors voted against the motion. Reid subsequently pulled the bill, charging Republicans with “blocking debate.” Many reporters swallowed Reid’s spin/bait, hook, line and sinker, even though, as Minority Whip Trent Lott (R-Miss.) pointed out afterward, the effect of the vote actually was to allow for more debate. A review of the Congressional Record reveals considerable substantive debate on Iraq already had transpired at the time Reid yanked the plug.

Reid’s decision Feb. 15 to move to an up-or-down vote on the less complicated resolution passed by the House, supporting the troops while disapproving of the president’s surge, reveals just how much he admires House Democrats’ way of doing things by shutting out all amendments. Ironically, it was the current House Democratic majority that campaigned on the pledge to be more fair and open. They even initially promised House Republicans an Iraq alternative, only to reverse course and revert to their old, no-amendment ways for the ninth out of 10th time this year.

The fog of war on the floor has now cleared, revealing an empty shell, devoid of any effectual policy change. Beginning with the supplemental appropriations bill, however, Members will have ample opportunity to vote on real money measures having real consequences for the future of our troops and Iraq.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for scholars and former staff director of the House Rules Committee.

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