Filibuster the Strike Against Syria? Not So Fast
Posted at 12:20 p.m. on Sept. 3, 2013
Senate critics of U.S. military action against Syria might not even get a chance to filibuster.
If Senate leaders take all the proper steps, the resolution to authorize the use of force against Syria might not only jump to the front of the schedule, but it could even short-circuit any filibuster attempts.
The War Powers Resolution of 1973 created a special privileged status for resolutions reported from the Senate Foreign Relations Committee that are in compliance with other legal provisions. The reward for drafting a compliant resolution? The measure becomes the pending business on the Senate floor without debate or the risk of a long series of debate-limiting cloture votes.
Expedited procedure or not, the measure that was set to come before the Senate, an energy efficiency bill drafted by Democratic Sen. Jeanne Shaheen and Republican Sen. Rob Portman appears certain to be jettisoned, at least temporarily.
Aides said the offices of Senate Majority Leader Harry Reid, D-Nev., and Foreign Relations Chairman Robert Menendez, D-N.J., are working on revisions to the open-ended resolution that President Barack Obama sent over the evening of Aug. 31. Likely areas for changes include a prohibition on U.S. boots on the ground and a time limit for the strikes in response to the Syrian regime’s use of chemical weapons.
Obama told reporters Tuesday that he would work with Congress on modifying the original request.
But for the Senate to use an expedited process, the Foreign Relations Committee could act on the use of force resolution following a report from President Barack Obama that the Syria case represents an instance “where imminent involvement in hostilities is clearly indicated by the circumstances.”
As the Congressional Research Service explains:
Under Section 6(b), the bill or joint resolution, once reported (or once the committee is discharged), “shall become the pending business” of the House or Senate, as the case may be. By making a covered measure the pending business on the House or Senate floor, the War Powers Resolution evidently makes the measure privileged for floor consideration in the House (without the need for the Rules Committee to report a special rule for that purpose), or obviates the need for a motion (that usually is debatable) to proceed to the measure’s consideration in the Senate. Because Section 6(b) contains no provisions to the contrary, the measure presumably would be amendable on the floor of either house to the same extent as any other bill or joint resolution that house considers, or could be tabled.
In short, assuming Reid takes this course and other provisions remain in effect, there would be no way to filibuster the motion to proceed. The CRS notes that even the final passage vote might not be subject to the typical hurdles:
Section 6(b) goes on to require that the House or Senate vote on final passage of the measure within three calendar days after having become the pending business, “unless such House shall otherwise determine by yeas and nays.” The effect of this subsection probably is more significant for the Senate than the House, because it is designed to preclude a filibuster on the Senate floor. In addition, the last provision of the subsection evidently gives either house options to adjust the timing and length of floor consideration by adopting any of several conceivable motions by rollcall vote.
Of course, nothing would prohibit the Senate from using the normal procedures or increasing the time for debate beyond what’s defined in the War Powers Resolution if additional time were needed to muster the votes.
The debate over the authorization for use of military force against Iraq didn’t go through the Senate with an expedited process. The chamber even held a cloture vote on the motion to take up the measure. The motion was adopted 95-1, with West Virginia Democrat Robert C. Byrd voting “no,” saying the Congress was acting too quickly.