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Analysis: The Filibuster Reality-Distortion Field

Watching proponents of the Iran deal rejoice over the emergence of two more senators who support it is a lot of like watching a wide receiver spike the football before reaching the end zone: The guy with ball is celebrating, but everybody watching is kind of in shock, knowing too well what happens next.

A primer: The Senate has 100 members. A majority, which includes at least two Democrats and the whole Republican majority, are vocally opposed to this deal. But because of the careful phrasing of the agreement, there is no new legislation that must pass right now, it is not a treaty that must be ratified, and the President had, prior to April, threatened to just carry it out with or without congressional approval.

Under normal circumstances, laws are passed using a majority of both houses. The President may veto a law, and Congress needs two-thirds of both houses to override a veto. When the majority to pass a new law is slim, either party in the Senate can effectively prevent its passage by talking forever—and to stop a filibuster, you need 60 votes.

With the Iran deal, however, something bizarre has happened: Back in April, the administration decided to give Congress a voice by signing off on the Corker-Cardin bill, which effectively endorsed an agreement that no one had yet seen, but would give Congress the chance of voting to disapprove it. Because of the already stiff opposition to the deal, it was clear that such a vote would have to be vetoed, however—and the big question was whether they could disapprove it so much that they could override the veto with a two-thirds majority.

So here we are today: There’s a deal, it is full of holes, most Americans oppose it, and Congress is poised to vote its disapproval. The administration is on the precipice of scraping together one-third of the Senate to block an override. Now the question is: Can it get the 41 senators it needs to sustain a filibuster?

Yes, that’s right. The same people who promised to give Congress a voice are now going to filibuster to prevent a debate. But a filibuster here means something really strange: The President is making a huge policy shift for America, and now he’s working overtime to block a vote. This filibuster would pervert the point of the rule—which is to keep Congress from changing major laws with only a slim majority—and keep the Senate from acting as a check on a major policy shift that has implications in law as well. And a check on bad foreign policy is precisely what the Constitution intended when it assigned the Senate with the task of ratifying treaties and approving cabinet members.

This is why some have floated the “nuclear option” of changing Senate rules in this case. But there’s really no need for it: The administration should be interested not only in getting the deal through, but in doing it in a way that is above reproach. If President Obama needs to veto it, so be it—he’s done that before. When he shows up at the UN this fall, what exactly will his argument be? That Congress never really got around to voting?

Regardless of whether there’s a filibuster on the Iran deal, the administration has lost the political battle, and will be implementing it against the majority of the nation’s elected representatives. If President Obama insists on doing it via filibuster, he risks undermining the little sense of legitimacy the deal has left. And it will not be long before he is anyway forced to veto a string of new congressional actions aimed at undercutting its implementation, and laying the groundwork for the next president to ensure it’s never implemented in full.

The end-zone dance will be a brief one.