International Law and the Lame-Duck Congress

By Tracy Nelson

As the Republican-controlled 114th Congress reconvenes for its lame-duck session, expectations for the session’s productivity are low. While issues including military policy, judicial nominations, and various appropriations measures remain pending, it is unlikely that non-essential or divisive measures will move with any great speed. The Trans-Pacific Partnership (TPP), once swirling with lame-duck buzz, also seems unlikely to be ratified during the session, tarnished by a presidential election in which both major party candidates denounced the trade agreement. Senate Majority Leader Mitch McConnell has stated rather firmly that the TPP “certainly will not be brought up this year,” suggesting that consideration of the trade deal will be left to the new Congress, once President-elect Donald Trump has been inaugurated.

While it appears that the present lame-duck session may make little headway overall, this period has historically been one of great productivity in international and foreign relations law. The lame-duck session is often one of the only opportunities for Congress to complete substantial work in the second portion of the calendar year, due to August recess and election recess. As a result, time sensitive issues, such as defense and security measures, are frequently considered during this period. Divisive or executive-led issues are also often considered during lame-duck sessions, as the passage of midterm elections alleviates the pressure of public opinion. Because of these factors, lame-duck sessions present a final opportunity for a Congress or a President to push specific international law agenda items that have gone unaddressed.

The Uruguay Round Agreements Act of 1994 and the New START Treaty of 2010 are two examples of international agreements that were successfully passed during lame-duck sessions, and their passage and significance are detailed below. In both instances, the lame-duck session created time pressures alongside simultaneous relief from public opinion concerns, proving ripe for progress on international law issues. While the current lame-duck session may not result in activity of similar consequence for international law, there are two sanctions bills–one concerning Iran and another concerning Syria–that have already gained some traction in the lame-duck session and deserve attention. This piece concludes with a brief analysis of these bills and their prospects for passage.

Uruguay Round Agreements Act of 1994 and the Impact of Public Opinion

The Uruguay Round Agreements Act of 1994, approved during the lame-duck session of the 103rd Congress, implemented into U.S. law the Marrakesh Agreement of 1994, which transformed the General Agreement on Tariffs and Trade (GATT) of 1947 into the World Trade Organization (WTO). The Uruguay Round Agreements Act recognized the series of trade agreements (“Uruguay Round agreements”) that came out of the Uruguay Round of multilateral trade negotiations, conducted from 1986 through 1994, and formed the basis of the WTO framework. These agreements expanded the industries originally included under the GATT, further reduced tariffs, expanded restrictions on government subsidies, and created an institutionalized dispute settlement system.

A bipartisan majority supported the Uruguay Round agreements but faced opposition from portions of both parties. Opposing Democrats argued that free trade agreements harmed U.S. jobs and drove down the salaries of working-class Americans. GATT-opponent Senator Ernest Hollings (D-SC), Chairman of the Senate Finance Committee, held the legislation in his committee for the maximum permitted forty-five days, forcing the issue to be addressed after the November midterm elections, in the hopes of exposing what he believed to be flawed agreements. Many Democrats supported Sen. Hollings and believed that delaying a vote on the agreements until after the elections would prevent blowback from trade-opposed portions of the electorate. A number of Republicans also objected to the Uruguay Round agreements, due to concerns about the economy, U.S. accountability to the WTO, and the potential impact on the midterm elections. Some Republicans were hesitant to “[give] President Clinton a victory” in the form of accession to the agreements, as they saw the Republican-led negotiations as their own policy win. Therefore, the lame-duck congressional session ultimately allowed both Democrats and Republicans to consider the agreements on their merits rather than considering the political implications of the legislation’s passage in the 1994 midterm elections. Despite prior hesitations, a bipartisan coalition brought the Uruguay Round Agreements Act for a vote and both houses approved by a wide margin.

The New START Treaty and Political and Security Pressures

Ratification of the New START treaty and the United States’ subsequent nuclear posture were influenced by the political dynamics of the 2010 midterm elections and the lame-duck congressional session. The New START Treaty, signed by President Obama and then-Russian President Medvedev in April 2010, replaced the original and recently expired START Treaty. The agreement between the United States and Russia outlined targets for reduced nuclear arsenals and committed both parties to verification mechanisms. Without a valid treaty in place, the U.S. could not verify Russia’s nuclear force size and structure, creating great security uncertainties and additional time pressures for the ratification of the treaty. The treaty met opposition from Republican senators who argued that the agreement conceded too much to the Russians and could potentially foreclose the development of necessary missile defense capabilities. Despite a 58-42 Democratic majority in the Senate, Republican support was essential to clear the constitutionally required two-thirds majority for treaty ratification. Republican victories in the 2010 midterm elections applied additional pressure on the Obama administration to reach a bipartisan compromise in the lame-duck session as greater Republican support would be required in the newly elected Congress. The political and security pressures on timely ratification led to substantial lobbying efforts by the Obama administration as well as to the administration’s commitment to invest $80 billion to nuclear modernization in the subsequent decade. While the New START Treaty was eventually ratified on December 22, 2010, with the support of thirteen Republicans, the lame-duck dynamics present in 2010 led to the Obama administration pursuing a more aggressive nuclear posture than originally intended by the treaty.

Prospects for the Present Lame-Duck Session: The Iran and Syria Sanctions Bills

 Two sanctions bills, one a renewal of the Iran Sanctions Act of 1996 and the other directed at the Syrian government and its supporters, remain pending before the Senate in the current lame-duck session. Passed almost unanimously by the House, the Iran Sanctions Extension Act would renew sanctions set to expire at the end of the year. The bill would preserve “snapback sanctions” that can be invoked should Iran violate its agreements with the U.S., considered essential for the agreements to have any teeth. The renewal has significant support in the Senate and will likely be pushed through during the lame-duck due to the time pressures associated with the impending expiration. Also passed by the House and awaiting Senate consideration is the Caesar Syria Civilian Protection Act of 2016, which would permit sanctioning of the Assad regime and its supporters, including Russia and Iran, for war crimes and atrocities against civilians. This bill runs contrary to potential policy shifts anticipated under President-elect Trump, who has discussed increased cooperation with Russia and a more hands-off approach to the situation in Syria. While passed by a voice vote in the House, the bill lacks vocal champions in the Senate and could be cast aside as continued Republican control of both houses eases political pressure to pass the bill during this Congress.

Conclusion

The lame-duck congressional session presents a unique opportunity for productivity on international law issues. The conclusion of midterm elections eases concern over public opinion often associated with executive-led measures like trade agreements and international treaties. Simultaneous political and security pressures due to the Congressional calendar create an environment conducive for hastened work and increased compromise. Nevertheless, uncertainty surrounding the incoming administration’s policies and a lack of political pressure due to the maintenance of Republican control in Congress will likely stifle meaningful productivity during this lame-duck session, despite the increasingly lengthy queue of international issues to be addressed.

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