A fellow Planet Gore-ite asked the following question, and suggested I post the response as food for thought. So here goes the question and answer, (I’m somewhat busy at the moment, so please excuse the lack of hyperlinks). I also do not indulge the purists horrified at the prospect of doing anything in the face of protocol; it’s protocol, and I’m told that the issue at hand addresses “the greatest threat facing mankind”. As such, I believe that offending protocol has the political upper hand here.
Possibly more later as the politics of SCOTUS’s CO2 opinion yesterday percolate.
Question: Is the Senate free to ratify Kyoto at any time? Or do they have to wait for the President to submit it to them. If the former, has anyone written anything on this glaring failure of the Democrat-controlled Congress to ratify Kyoto?
Answer: The former: there is nothing in the Constitution impeding or prohibiting the Senate from voting on a duly signed treaty. Protocol, as manifested in Senate rules, is the sole structural impediment (a lack of political will and related considerations also come into play).
That is, the Senate Foreign Relations Committee rules read as though they only contemplate voting on treaties transmitted to them by the president; Senate Standing Rule XXX contemplates only voting on treaties reported out by the FRC.
Now, who writes those rules, and regularly waives them (including for the purpose of Barbara Boxer’s unique, opening hearing on climate change? Right. And only the Senate, per the Constitution, so no court would impede them.
[In truth of course, because the "political question" doctrine dictates that this is between them and the Executive, the Senate also could vote on a treaty that Bush “unsigned”, the “Rome Statute of the International Criminal Court”. I suggest that the subsequent political dynamic would be quite different, however.]
The problem potentially would be that in truth a treaty isn’t really ratified until a president submits the instrument of ratification, in this case with the UNFCCC, but now we get into the weeds, though it is a useful discussion.
If the Senate ratifies Kyoto thereby challenging Bush to follow through on that act, clearly there is some measure of political pressure on Bush to submit the ratification – as well as an opportunity to educate the public, eschewed to date so an unlikely prospect. This pressure is, however, much less on him as a lame duck, but even more so for one who the world claims has already “rejected” and/or “withdrawn from” Kyoto. It seems to go without saying that the political cost is mitigated when one is only doing that which the world already thinks you’ve done. You just re-antagonize them. (Trust me, with this crowd, you won’t know the difference.) Heck, pass the buck to the next guy, just like Clinton did with this – it was 801 days after agreeing to Kyoto before he left office, without lifting a finger; he did the same with the ICC, even claiming during the signing ceremony that he didn’t agree with the document!
At this point the establishment mavens need smelling salts. The rest of you, bear with me.
The ultimate point toward which this argues is that the prevailing notion that George W. Bush is responsible for the US refusal to play Kyoto ball is absurd, if very, very politically useful for the Europeans–and our domestic version, the Democrats. He ought to simply transmit the treaty now – on the heels of the SCOTUS opinion and Democrat crowing about how the wind is now at their back to overcome that awful Bush – to make this point, demanding a vote if without recommendation.
The Senate after all is preparing to vote on the annual “embarrass-Bush-on-his-way-to-the-G-8” resolution, this year styled as “Biden-Lugar”, demanding that he negotiate a treaty that the Senate can approve of. To which the clever, I’ve-had-it-with-this Bush says, “you mean, do a better job of negotiating than Gore did. Well, there’s an offer on the table. Have at it.”
Republican Senate offices I’ve talked to are inexplicably terrified of this scenario. They think the Ds would get a majority but not 2/3 and make political hay blaming those mean Republicans. I say a) no they wouldn’t, but b) sounds like a nice fight to have, and besides, c) Article II Sec. 2 says treaties require approval by 2/3 of those voting.
So, Republicans, don’t vote. Leave it to those who profess global salvation. (At this point in the discussion, industry’s knees start knocking; apparently there are more Senators than Bernie Sanders who really want the US to be party to Kyoto). And watch the fun when they realize what you’re up to. Rushing down to change votes, deploring your conduct as a dirty trick, and other outbursts.
Alternately, the Republicans announce their plan to watch, in advance, and watch their antagonists, who have had a free ride on this issue at their expense, and fully count on two more years of it to really take over, rush to block what they earlier called salvation on procedural grounds (no presidential transmittal, etc).
Again, food for thought.