START in a Lame Duck

The Senate should vote on the New START during the “lame duck” session.

The New START arms control treaty, negotiated between the United States and Russia and signed by the presidents of both countries last April, is awaiting ratification by the United States Senate.   Objections to the treaty rest primarily upon misunderstandings or misrepresentation.  In addition, though, some opponents of the treaty are arguing that, whether one supports or opposes the treaty, it is improper for the Senate to vote on the treaty during the post-election or “lame duck” session of Congress.  But there is neither a constitutional nor a commonsense reason to delay a vote.

Some of us who hope to dramatically and rapidly reduce the salience of nuclear weapons were disappointed that the treaty was rather modest, but it clearly moves in the right direction.  This treaty is not a radical departure from past treaties, it is not even a post-Cold War treaty;  it is an extrapolation of the Cold War SALT and START treaties stretching back to the days of the Soviet Union.  Given the current strategic security environment, neither Richard Nixon, nor Ronald Reagan, nor George H. W. Bush would blink an eye at this treaty.

Not surprisingly then, the treaty has very broad bipartisan support from former diplomatic and security civilian and political leaders, including former Republican Secretaries of State and Defense, as well as an impressive array of current and retired military leaders.

There are a few opponents of the treaty.  John Bolton is skeptical of treaties in general and arms control treaties in particular, so he is at least consistent in being skeptical about the New START.  The most sustained and vociferous, indeed, hysterical opposition, however, is organized by the Heritage Foundation.  Given the wide conservative support for the treaty, it is difficult to understand Heritage’s objections, which are either wrong (that through some mysterious process, the treaty will lead to N. Korea getting more nuclear weapons), gross misrepresentations (that the treaty limits missile defense but by prohibiting the US from doing things that it does not want to do), or entirely irrelevant (that the treaty does not require unencrypted missile telemetry, which is true, but telemetry is unnecessary with the intrusive on-site inspection that replaces it).  Do you think their motivations might be political?  Simply a reflexive opposition to any treaty negotiated by Obama?  It is inconceivable to me that Heritage would object to New START if John McCain had won the last election and he were presenting exactly the same treaty for ratification (which, given its modest reach, is entirely conceivable).

Heritage has now turned on its own, sending fliers out to voters in states with Republican senators who might support the treaty, including, incredibly, Arizona, home of Senator Kyl, the Senator most skeptical of the treaty.  The fliers are none too subtle, with a picture of President Obama next to Russian Prime Minister Putin (they probably figured none of their target audience would recognize Russian President Medvedev, plus, he does not always look scary enough), and Iranian President Ahmadinejad.

The flier’s argument is not simply to oppose the treaty directly but to oppose a vote on the treaty in the post-election, or “lame duck,” Senate.  (This is actually good news.  The very worst outcome for treaty supporters would be a vote on ratification that failed.  The fact that Heritage, Bolton, and others are asking for a delay means that they fear that there are more than enough votes in the Senate to ratify New START.  If the opponents were confident that the treaty would fail, they would be pushing for a vote in the Senate tomorrow, lame duck or not.)

The flier reads, in part, “President Obama and his allies in Congress are using a special, ‘lame duck’ session to ram the START treaty through the full Senate.”  First, the image of anybody “ramming” anything through the sclerotic Senate is laughable.  Nevertheless, several opponents of the treaty argue that, whether one supports or opposes the treaty, it is somehow unseemly, unfair, or unconstitutional to vote on the treaty after the election and it should be left to the next session of the Senate.

Is there any reason to not vote on the treaty during a lame duck?  The most common argument against an immediate vote is that, by voting after an election that resulted in such a dramatic shift in power (but less than the reversal of power it is sometimes portrayed to be), the Senate would be defying the will of the people.  This assumes that voters were expressing their will regarding New START through their votes.  The election did reflect deep frustration with the economy, but no one can seriously argue that the election was a mandate for or against the treaty.  Indeed, polling data taken after the election show solid majorities want to see the treaty ratified.  So the “will of the people” argument would support a vote in favor of the new agreement whether during a lame duck or later.

Another objection is that post-election ratification is somehow sneaky and cheating, even contrary to the intent of the Constitution.  Is there any reason to suspect that the Constitution discourages such votes?  It clearly does not prohibit post-election votes;  it now says nothing directly on the matter.  The original Constitution set elections in November (see Article 1, Section 4, Clause 1) and the only requirement for convening Congress was that it meet at least once a year on the first Monday of December (Clause 2).  Furthermore, the Constitution provided that, after the November elections, the newly elected members of Congress and the President assume their offices the following March, which made perfect sense given the transportation system of the 18th Century United States.  So, with November elections, March seating of a new Congress, and a required session in December, the Constitution originally required that every second session of Congress meet as a lame duck.  By the 20th Century, the long lag between the election and the next Congress was not needed and the 20th Amendment moved the date for forming a new government up to January.

What about lame duck votes?  By the time the 20th Amendment was passed, the country had a century and a half of experience with lame duck Congresses.  It must have been obvious to even the most wildly naïve constitutional drafter the kind of mischief that a legislature could get up to after an election that might have booted out a majority of members.  Given the obvious theoretical dangers of post-election votes, and given the long experience with lame duck sessions, and given that the 20th Amendment was the perfect opportunity to deal with any perceived problem, the fact that post-election votes are not even mentioned, much less prohibited, by the 20th Amendment can be taken to imply that its drafters and the four fifths of the States that ratified the Amendment had no problem with lame duck sessions in practice.

Even if a vote is legal, is it still appropriate?  Yes.  It was after the election of the 111th Congress that President Obama’s administration began negotiations with the Russians for New START.  It was the 111th Congress that the administration kept informed as negotiations proceeded.  It was the Foreign Relations Committee of the Senate of the 111th Congress that held exhaustive hearings, both public and classified, on the treaty and it was of the same Committee that voted to recommend ratification.  How can the Senate of the 112th Congress have a stronger claim on this vote?  There was never any intention by the framers of the Constitution or of the 20th Amendment to have the Senate throw away all that valuable work and start over.  If that had been their intent, they would have said so.  (I can’t help but notice that no one seems to object to having the 111th Congress vote on extending tax cuts.)  The Senate has every right, indeed, a duty, to vote on New START.  The Senate should ratify the treaty now.

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One Response to “START in a Lame Duck”

  1. Henry J Cobb November 14, 2010 at 1:07 pm #

    If the same hearings had to be duplicated during the 112th Congress, how much money would have been wasted on the hearings to date?

    And if the new Senators were to vote without hearings on what basis would they cast their votes?

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