Wednesday, December 22, 2010

The New START Treaty: A Constitutional Blunder and Its Political Consequences

Bruce Ackerman

The Obama Administration had a choice in framing its agreement with the Russians. It could have submitted it for majority consent by both Houses under Article one, generating a binding Congressional-Executive Agreeement -- this is the path taken by Richard Nixon in the first arms control agreement with the Soviets. Or it could have submitted the agreement as a classical treaty under Article two, requiring the approval of two-thirds of the Senate.

In an LA Times op-ed, Oona Hathaway and I argued for the first option, but the Administration chose the second. The result of this blunder is now apparent. If the Administration had taken the Article one route, Nancy Pelosi would have passed the pact expeditiously through the House, giving Harry Reid the momentum needed to obtain the two or three Republican votes required to break a Senate filibuster in short order. Once this threshold was passed, it would have been a simple matter to gain the simple majority vote required for passage. This rapid and decisive victory would have given Obama the green light to negotiate further anti-nuclear proliferation agreements.

But the Administration took the Article two path, and spent many months in a vain effort to convince Republican Senator John Kyl to provide the necessary votes to win a two-thirds majority. While the Administration has finally broken the log-jam, its tactics have led to such partisan bitterness that it has gravely endangered further progress on the anti-prolifereation front -- or so the New York Times reports today.

Perhaps the failure of Obama's most innovative foreign policy initiative was inevitable, given the strengthening of the Republican Right in the next session of Congress. But perhaps not -- maybe the choice of the Article one option, leading to a quick victory for the new agreement, would have greatly strengthened the hand of the Richard Lugars of the Republican party in the years ahead.

But thanks to the Administration's constitutional blunder, we will never know.

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