Historical Precedent: Treaties and Lame Duck Sessions

As newly-elected members of the Senate pointed out in a letter to Majority Leader Reid: “no bilateral strategic arms reduction treaty with the Soviet Union or Russia has ever been ratified during a lame duck session.”  Let’s go further: Has any major bilateral U.S. treaty ever been ratified during a lame duck session?

The 20th Amendment (ratified in 1933) established the current dates of Federal office terms, and consequently made possible the modern Congressional “lame duck” session.  Since 1933, there have been a total of eighteen lame duck sessions, including the current one.

A study of every treaty ratified by the United States would, though desirable, take more time than is left in the lame duck session.  So we assembled a list of 34 significant United States treaties from 1933 to the present from multiple sources (including the State Department). [For the list of treaties examined, see our Webmemo: Treaty Ratification During Lame Duck Sessions.]

We then cross-checked the Senate ratification dates with the specific dates of each lame duck session.  Our findings confirmed the assertion already made (that no bilateral strategic arms reduction treaty with the Soviet Union or Russia has ever been ratified during a lame duck session) and went much further.  Though some treaties may have been signed or entered into force during a lame duck session, we found no major treaty that has been ratified by the Senate during a lame-duck session.

Important legislation has in fact been passed during lame duck sessions (such as the General Agreement on Tariffs and Trade in 1994), but it must be emphasized that these were not treaties, but executive agreements.  While congressional approval is not required for executive agreements, treaties must be approved by a two-thirds majority of the Senate. The requirement for a supermajority makes ratifying a treaty one of the most significant legislative acts a Senate can perform.

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The recent midterm elections have placed even more pressure on the passage of the New START treaty during the lame duck session.  The Administration will have much more trouble passing the treaty in the new Senate.  However, to force action on the treaty at this time ignores those elected to replace many of the Senators who would vote to pass New START.

The ratification of New START by the lame duck Senate would not only ignore the message sent by American citizens in their election of new senators, but also defy the precedent set by American foreign affairs since 1933.

Co-authored by Matthew Kuchem.

Source material can be found at this site.

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