John Bellinger, the legal adviser for the State Department from 2005 to 2009, laments in this morning’s New York Times that the Obama administration has secured Senate approval for the fewest number of treaties of any President since World War II:
The Obama administration has been slow to submit new treaties to the Senate, and only nine have been approved so far. In contrast, the George W. Bush administration secured Senate approval of 163 treaties over eight years. These included not only bilateral treaties but also multilateral agreements on many important subjects, including human rights, atmospheric and marine environmental protection, the laws of war and arms control.
So why is it that a President who promised to be more multilateralist than his predecessor has failed on this score? One answer is that Presidents, including Obama, are increasingly relying on executive agreements, which do not require Senate approval (see this article by Jeffrey S. Peake, Glen S. Krutz, and Tyler Hughes). Another reason surely is, as Belinger puts it, that:
[..] an increasing number of Republicans had come to view treaties in general (especially multilateral ones) as liberal conspiracies to hand over American sovereignty to international authorities.
Yet Bellinger also argues that:
It isn’t enough to blame Republican opposition to international agreements, which certainly has risen among the party’s senators in recent years. That trend only makes it more important that President Obama work harder to gain Senate support for treaties in his second term.
The idea that it is indeed hard work to pass treaties is supported by a recent working paper by Judith Kelley and Jon Pevehouse. Passing a treaty isn’t a simple matter of tallying the votes. The Senate’s agree and consent process takes away legislative time and political capital that could be used for other, perhaps more valuable, legislation. This opportunity cost theory yields some interesting and counterintuitive hypotheses. Presidents should become less likely to advance treaties when their approval ratings are high and when their party controls the Senate because that is the time when they can pass more valuable legislation on domestic issues. Kelley and Pevehouse find strong support for these patterns in their analysis with data from 1967-2008.
I suspect that Bellinger is correct that the Obama Administration could have persuaded a few Republicans to switch sides on the United Nations Convention on the Rights of Persons with Disabilities if it had expended more time and capital on the treaty. This is not just about Republican opposition but also about priorities in the Obama Administration, which have, rightly or wrongly, been more on the domestic side.