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 Congressional Research Service ˜ The Library of Congress CRS-2 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 twothirds 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 12941310; and Treaties and Other International Agreements: The Role of the United States Senate, a committee print of the Senate Committee on Foreign Relations.