Through A Maze Of Mirrors

US laws require that the deal must lie in Congress for 30 days of continuous session before it can be taken for an up or down vote.

Why’s it an obstacle?

The current Congress set to end on September 6. Not enough time to meet the 30-day requirement.

Can a way around the 30-day condition be found?

Yes, the Senate can pass a unanimous consent resolution, waiving the 30-day condition. But even one member can put it "on hold". A bargain can be reached with the member to "vacate the hold".

What happens then?The Senate majority leader can file a cloture motion. If it gets 60 or more votes, a cloture is invoked, waiving the 30-day condition and limiting time for the debate and vote.

What about the House of Representatives?

Its rules committee could send a resolution to the floor saying the 30-day requirement isn’t required. Can be passed by a simple majority, but the deal can be amended or delayed through prolonged debates.

Are there other options?

Yes, the deal can be voted upon during a lame-duck session. Or it can be taken up by the new Congress, a worrying prospect.

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The USIBC is keen that Congress endorses the N-deal in its ongoing session because last week’s waiver for India in Vienna now allows Delhi to participate in nuclear commerce with 44 members of the Nuclear Suppliers Group (NSG). Trade with the group’s 45th member, the US, must wait till Congress grants approval to the nuclear agreement. Couldn’t a delay in securing this approval disadvantage American firms? India has said it will wait for Congress to approve the deal before setting off on a nuclear shopping spree. It’s consequently both in New Delhi and Washington’s interest to win congressional endorsement for the deal at the earliest.

But supporters of the deal face a daunting foe: time. Existing US laws require that the deal must lie in Congress for 30 days of continuous session before members can take it up for an "up or down" vote. The US President sent the deal to the Congress on September 11. With the current session of Congress scheduled to end on September 26, it’s impossible to fulfil the 30-day condition. A senior diplomatic source said the process was "very fluid...in the domain of speculation."

Yet the 30-day stipulation could be circumvented through finely calibrated manoeuvres. For instance, the requirement could be waived in the Senate through what is called the unanimous-consent resolution. However, the resolution can be put "on hold" even by one senator. Then, the Senate Majority leader could bargain with the senator(s), asking him or her to "vacate the hold". The dissenting senator could agree in return for, say, a favour pertaining to his or her constituency. Such bargains can take inordinately long. Analysts say the N-deal is unlikely to get unanimous consent from the Senate, which passed the Hyde Act 85-12.

The way out is to have the Senate Majority Leader (presently Harry Reid) file a cloture motion to proceed on the deal. If the Senate leader gets 60 votes, the 30-day requirement would be waived and cloture is invoked, limiting time for debate and vote on the deal. Donald Ritchie, associate historian at the Senate Historical Office, says this is usually (but not always) 100 hours or an hour for every senator. A vote less than 60 wouldn’t get the 30-day condition waived.

Lawmakers could also introduce a "resolution of approval" to waive the 30-day requirement. In such an instance, the House of Representatives’ powerful rules committee would say that the 30-day stipulation doesn’t apply, and send a resolution to this effect to the full House for a vote. The resolution could be adopted by a simple majority, and the 30-day requirement is set aside with Congress passing the deal as a new piece of legislation. But this poses risks—the bill would lose its "privileged status" and be open to debate, filibuster and even amendments. While amendments would only govern US-India nuclear commerce, Indian officials are concerned that these may also "set standards" for other countries engaging in nuclear trade with India.

The deal could also be appended to an unrelated piece of legislation—say, one of great urgency, like fiscal reforms—and pushed through with a provision waiving the 30-day requirement. Such bills usually win the approval of Congress.

If the deal misses the September 26 deadline, it can be voted on in a "lame-duck session", which is held after the election day to choose the president but before January 3. The extra time could enable the deal to meet the 30-day condition. A cloture motion is vital in this scenario. Ritchie told Outlook, "If you don’t get 60 votes to invoke cloture, then the threat of a filibuster looms all the time." A filibuster refers to any attempt to block Senate action on a bill or other matter by debating it at length or through other delaying actions. But passing the deal during a lame-duck session is considered the most unlikely scenario as members of the old Congress are usually reluctant to return to Washington after elections, either having lost their seat or retired.

These hellish procedures can be overcome only with Congressmen willing to cooperate with the Bush administration. Analaysts say the recent controversy over the varying perceptions of India and the US about the 123 agreement have the potential of riling US lawmakers.