Senate Consideration of Treaties

Senate Consideration of Treaties

Order Code 98-384 GOV
Updated April 10, 2003
CRS Report for Congress
Received through the CRS Web
Senate Consideration of Treaties
Paul Rundquist
Specialist in American National Government
Government and Finance Division
Stanley Bach
Senior Specialist in the Legislative Process
Government and Finance Division
The consideration of treaties and nominations constitutes the executive business of
the Senate. The Senate conducts executive business only after it has resolved into
executive session. Senate Rule XXIX is concerned with executive sessions; Rule XXX
discusses proceedings on treaties. This report is one of a series of CRS fact sheets on
aspects of the legislative process. For more information on legislative process, see
[http://www.crs.gov/products/guides/guidehome.shtml].
When the President submits a treaty to the Senate, the treaty and any supporting
materials are referred to the Committee on Foreign Relations. Paragraph 3 of Senate Rule
XXIX requires that all treaties and “all remarks, votes, and proceedings thereon shall also
be kept secret, until the Senate shall, by their resolution, take off the injunction of
secrecy.” At the time the treaty is referred to committee, the Senate typically agrees by
unanimous consent to remove the “injunction of secrecy.” (See Senator Orrin G. Hatch
“Removal of Injunction of Secrecy - Treaty Document No. 108-2,”Congressional Record,
daily edition, vol. 149, February 11, 2003, p. S2227.)
The Foreign Relations Committee has the options of ordering the treaty reported
back to the Senate--favorably, unfavorably, or without recommendation--or of declining
to act on the treaty. If the committee votes to report a treaty, it is placed on the Executive
Calendar and must lie over on this calendar for one day before floor consideration
(although the Senate may waive this layover requirement by unanimous consent).
When the Senate is prepared to consider the treaty, the majority leader typically
makes a non-debatable motion in legislative session that the Senate go into executive
session for the purpose of considering that treaty. If the Senate already is in executive
session, or if the Senate agrees simply to resolve into executive session without the
purpose for doing so being specified in the motion, then a motion made in executive
session to proceed to any but the first item listed on the Executive Calendar is debatable.
Once in executive session, the Senate first considers the text of the treaty itself, just
as it would consider the text of a bill in legislative session. The treaty is amendable and
it is open for amendment at any point, with any amendments proposed by the Foreign
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Relations Committee being considered first. When there is no further debate or
amendment, the Senate does not vote on approving the treaty. Instead, the Senate takes
up a resolution of ratification, by which the Senate formally gives its advice and consent,
empowering the President to proceed with the ratification of the treaty. This resolution
typically states: “Resolved (two-thirds of the Senators present concurring therein), That
the Senate advise and consent to the ratification” of the treaty in question. When the
resolution of ratification is presented to the Senate, it incorporates any amendments to the
treaty that the Senate had approved.
One day is to elapse between the time the Senate completes action on the treaty itself
and the time it begins consideration of the resolution of ratification, although this
requirement also is frequently waived by unanimous consent. After the Senate has begun
considering this resolution, amendments proposing to change the text of the treaty itself
no longer are in order. However, Senators may amend the resolution of ratification by
attaching to it reservations, declarations, statements, or understandings that can affect the
interpretation or implementation of the treaty. Again, the Senate first considers any
reservation or other proposition that the Foreign Relations Committee has reported.
The final vote on agreeing to the resolution of ratification, with whatever
reservations or other propositions may have been attached to it, requires a vote of two-
thirds of the Senators present and voting (a quorum being present). A two-thirds vote also
is required to agree to a motion to postpone indefinitely further consideration of the treaty
and accompanying resolution, because adopting that motion has the effect of disposing
of the treaty permanently. All other motions, including those proposing treaty
amendments or reservations, require only simple majority votes. Treaties, resolutions of
ratification, reservations, and other propositions are all debatable under the normal rules
of the Senate, and are subject to the Senate’s cloture rule, Rule XXII. When cloture is
invoked on a resolution of ratification, action on all amendments and reservations must
be completed before a vote on ratification under the rule’s 30-hour time limit.
Frequently, the Senate agrees by unanimous consent to dispense with consideration
of the treaty itself and proceeds immediately to consider the resolution of ratification.
Treaties, unlike bills and other legislative measures, may remain before the Senate
from one Congress to the next. Paragraph 2 of Rule XXX states in part that “all
proceedings on treaties shall terminate with the Congress, and they shall be resumed at
the commencement of the next Congress as if no proceedings had previously been had
thereon.” Thus, if the Foreign Relations Committee fails to report a treaty before the end
of a Congress, the treaty remains on the committee calendar during the next Congress.
If the committee has reported a treaty but the Senate has not completed floor
consideration of it when the Congress ends, the treaty is recommitted to the committee,
and the committee must report it again before the Senate may consider it on the floor.
For additional information, see Riddick’s Senate Procedure, pp. 832-842 and 1294-
1310; and Treaties and Other International Agreements: The Role of the United States
Senate, a committee print of the Senate Committee on Foreign Relations.