Assessing the new Kirk-Menendez sanctions legislation (Updated)

The new Republican-controlled Senate this month fulfilled its promise to try to reassert control over the Iran nuclear negotiations. Senators have outlined no less than three bills extending conditions on the Iran talks, drawing the repeated threat of a Presidential veto. The most controversial bill is legislation drafted by Sen. Mark Kirk (R, Ill.) and Sen. Robert Menendez (D, N.J.), which is a substantially watered down version of its 2013 predecessor. This Iran Matters post breaks down the revised bill and its differences from the 2013 version.

Background. The latest iteration of the Kirk-Menendez sanctions legislation, entitled the “Nuclear Weapons Free Iran Act of 2015” and referred to here as the “2015 bill,” was released by Kirk’s office on January 16. It is based on the “Nuclear Weapon Free Iran Act of 2013,” also known as Senate Bill 1881 and referred to here as the “2013 bill.” That bill was introduced in December 2013 and received 59 cosponsors. (See Gary Samore’s analysis of the 2013 bill here.)

Primary difference: Suspending sanctions. Both 2013 and 2015 bills implement nearly identical sanctions that target petroleum, banking, shipping, senior Iranian officials and other sectors. The main difference is how the President can suspend the implementation of those sanctions. Both bills distinguish between two situations: suspending sanctions on a temporary basis during negotiations, and suspending sanctions if a final agreement is reached.

Suspending sanctions during negotiations

The 2013 bill puts a time limit on negotiations: 240 days, which includes a single 180-day waiver and two 30-day waivers. In order to obtain those three waivers, the President must make a number of certifications about Iran’s conduct, including that it is negotiating “proactively and in good faith,” it has not conducted a terrorist attack against the U.S. and it has not tested certain ballistic missiles. After that 240-day period, all sanctions are implemented automatically.

In the 2015 bill, the President can request recurring 30-day waivers of sanctions by only certifying that such an action is “in the national security interest of the United States” and that Iran has complied with interim agreements.

Reaching a final deal

Even in the case of a final nuclear agreement, the 2013 bill envisions a perpetual “sword of Damocles” above Tehran. The 2013 bill allows the President to suspend sanctions on an annual, renewable basis. At each renewal, the President must certify that Iran’s “illicit nuclear infrastructure, including enrichment and reprocessing capability and facilities, and the heavy water reactor and production plant at Arak” are being dismantled, that Iran is in accordance with United Nations Security Council resolutions and that it is complying with an expansive monitoring and verification regime overseen by the IAEA.

The 2015 bill takes an opposite view. If an agreement is reached, the White House must simply notify Congress and wait 30 days before implementing the agreement. Sanctions in the 2015 bill are not waived on a yearly basis; they are taken off the table entirely. The only condition is that the Secretary of State must write a report “assessing the extent to which the Secretary will be able to verify that Iran is complying with its obligations under the agreement.”

Staggered implementation. Should Iran and the West fail to reach an agreement, the 2015 bill calls for the implementation of essentially the same sanctions as 2013 but at a staggered pace. Following the self-imposed June 30 deadline for ironing out technical details, on July 6 the suspension of sanctions under the Joint Plan of Action is terminated. Then, every month new sanctions are put in place:

• August 3, 2015: Sanctions on petroleum products
• September 7, 2015: Reduction of international oil purchases to “de minimus” levels
• October 5, 2015: Sanctions on senior Iranian government officials
• November 2, 2015: Sanctions on foreign currency transactions
• December 7, 2015: Sanctions on shipbuilding, automotive, construction, engineering and mining industries.

Sense of Congress. Both bills contain “Sense of Congress” sections, which do not carry the force of law but do illustrate lawmakers’ mindset and intent. While the two bills express similar sentiments, there are several notable differences. At first glance the following differences may appear trivial, but the fact that deliberate alterations were made reflects the changing views of the drafters.

• Acquire or maintain? The 2013 bill said it is the sense of Congress that Iran “must not be allowed to develop or maintain nuclear weapon capabilities,” while the 2015 bill said that it is US policy that Iran “will not be allowed to develop or otherwise acquire a nuclear weapon capability.” The change from “maintain” to “otherwise acquire” reflects growing awareness in the policy community of other ways that Iran could obtain a nuclear weapon without indigenously producing the components, such as purchasing parts. (This Belfer Center discussion paper outlines such scenarios.)
• Removal of “findings.” The 2013 bill included a lengthy indictment of the Iranian regime’s human rights record, its worldwide acts of terrorism and “subterfuge” used to develop its nuclear program. This section is removed from the 2015 bill.
• Removal of discussion of Israeli pre-emptive attack. The section of the 2013 bill saying that the US “should stand with Israel” if it chooses to attack Iran is eliminated from the 2015 bill.

Moving forward. The 2015 bill was marked up in the Senate Banking Committee on January 29, and Menendez and other Senate Democrats said they would hold off on a vote until after the March 24 negotiation deadline. Meanwhile Congressional Republicans are considering merging the bill with one being drafted by Sen. Bob Corker (R., Tenn.), which is a revision of his July 2014 proposal.

Update 1/29: The Senate Committee on Banking, Housing, and Urban Affairs on Jan. 29 approved the bill by a vote of 18-to-4, sending it to the Senate for consideration. Six of the committee’s Democrats voted in favor of the bill. Senators voted to add four amendments to the bill: (1) the requirement that the Secretary of Treasury report to Congress on sanctions relief, to complement a report by the Secretary of State; (2) the Sense of Congress that a final agreement should be voted on by Congress; (3) affirming Israel’s right to self defense, a section that was removed from the 2015 revisions to the bill and (4) increasing verification reporting requirements.