An opportunity cost theory of US treaty behavior*
Judith Kelley and Jon Pevehouse
* We thank John Gamble for sharing his data with us. For their assistance, we also thank
Kathryn Chylla, Robert E. Dalton and Frank Halloran at the US State Department,
Marjorie Browne with Congressional Research Service, and Michael Mattler, the
Minority Chief Counsel on the Senate Foreign Relations committee. For helpful
comments we thank workshop participants at Duke University, Georgetown University,
Florida State University, the University of Pennsylvania, Cornell University, University
of Nebraska and the University of Michigan. We also thank Mark Pollack for additional
comments. This paper was also presented at the Annual meeting of the American
Political Science Association, Seattle, WA, 2011, and the Annual meeting of the
International Studies Association, San Diego, April 1-4, 2012.
1 Abstract
The United States often leads in treaty creation, but lags in ratification. Opposition by
key veto players cannot explain all the delays or failures. Contrary to standard
international relations theory that expects countries to ratify treaties for which the
national costs outweigh the benefits for key veto players, we present an opportunity cost
theory that argues that the advice and consent process imposes opportunity costs in terms
of legislative time and political capital that could have been spent on other priorities.
These costs alter the calculus of key players and may obstruct or delay the process,
sometimes leading to cases where they US fails to ratify treaties despite its national
interests in its success. Statistical analysis of the transmittal and advice and consent
process supports the argument. The priority the Senate and President assign to treaties
depends not only on the value they assign to the treaty, but also on the value of other
possible policy achievements. Presidents are less, not more likely to transmit treaties to
the Senate the more support he has. Furthermore, the more support the president has in
Congress, the more the cost of Senate floor time matters for advice and consent.
2 The United States Senate can be speedy at granting advice and consent to treaties.
In March 2003, the US signed the NATO protocols to enable the accession of several
new members. By April, the President transmitted the treaty to the Senate and by May the
Senate provided advice and consent. Such speed is rare, however. In the same year, the
US signed the Framework Convention on Tobacco Control. Then-Senator Barack Obama
joined in a letter urging President George W. Bush to transmit the treaty to the Senate.
Yet, five years into Obama’s own presidency it still lingered in the vaults of the State
Department.
The fact that many treaties get stuck has long ago earned the Senate a reputation
as “the graveyard of treaties.” Some treaties such as the Disability Convention clearly fail
due to lack of support, but other treaties fail even when they have the requisite support.
President Clinton transmitted the Law of the Sea to the Senate in 1994, and it has been on
the Treaty Priority List of all presidents since, and at times had the support of over twothirds of the Senate (Winter 2009). Why then has the Senate not provided advice and
consent when there was sufficient support? Why do some treaties remain on the
President’s desk or remain tabled in the Senate despite strong incentives to move them
forward? Indeed, given that the US is often in the forefront of treaty creation, why does it
often lag behind other states in treaty ratification (Elsig, Milewicz et al. 2012)?
This paper argues that the fate of a treaty depends not only on the preferences of
veto players (Krutz and Peake 2009, 145), but also on opportunity costs. Because
political capital and agenda space in Washington is finite, the president and the Senate
must choose whether to spend time and resources on the treaty or to spend time on other,
often more valued, domestic legislation. While this is true for all countries, the
3 opportunity cost is often greater in the US, because the US Senate role differs from most
other democracies where pure majorities often suffice. The two-thirds threshold for
passage in the Senate is not only larger in the US, but the opportunity for delay is greater
given the US Senate rules for debate and passage. “Virtually no other country deals with
international law as [the US does] (Hathaway 2008, 4).” This makes treaties potentially
more time consuming for the US to ratify and this translates into greater opportunity cost
in the US political space. Using a new dataset on multilateral treaties, we show that
opportunity cost concerns even influence the president’s decision about whether to
transmit a treaty, that opportunity costs magnify the traditional barriers to treaties in the
Senate, and -- somewhat counter intuitively – that under some conditions treaties are less
likely to get advice and consent the more support the president has in congress.
We first lay out our opportunity cost theory and derive a set of testable
propositions. Next we provide an overview of the multilateral treaties that required
Senate advice and consent since 1967. Our statistical analysis begins by modeling the
transmittal decisions and then moves to the advice and consent process. The discussion
raises implications for legislative research, international relations theory, and policy.
Treaty advice and consent
The treaty advice and consent process matters in several ways. Treaties that
require Senate advice and consent tend to cover significant commitments. Delays in
ratification hampers US participation in the treaty regime, sometimes relegating the US to
observer status, a point bemoaned at times by President Clinton in his transmittal letters
urging the Senate to act (Clinton 1997). Lack of US participation in the treaty regime also
diminishes global efforts to cooperate on important issues as with the Kyoto Protocol on
4 global warming. Lastly, repeated failures to ratify treaties diminishes US influence in
future negotiations (Martin 2000; Galbraith 2012, 70-71).
Despite its importance, few scholars have studied the advice and consent process
for treaties, which is a stark contrast to the advice and consent process for presidential
nominations. The focus has generally been on narrower issues such as treaty reservations
(Auerswald and Maltzman 2003), security treaties (Krepon and Caldwell 1991; Delaet
and Scott 2006), various individual treaties (Evans and Oleszek 2003), or why the US
treats a particular international agreement as an executive agreement versus a treaty that
requires Senate advice and consent (Martin 2005; Krutz and Peake 2009).
Two theoretical approaches to explaining the fate of treaties stand out. Most
international relations research focuses on single treaties and treats states as rational,
unitary actors (Fredriksson 2000; Moravcsik 2000; Simmons 2000; Buthe and Milner
2008; Simmons 2009) who join treaty regimes that are in their national interest.
Sometimes the benefit is a signaling value that states attribute to joining a treaty even if
they have no intent of observing it (Vreeland 2008), but generally a state weighs the pros
and cons of the treaty and joins if the benefits outweigh the costs. Based on this logic, if a
treaty is in the interest of the US, the US should ratify it.
This logic can explain the fate of many treaties, but not all. Sometimes the US
fails to ratify some treaties that it clearly values. For example, sometimes US negotiators
push hard for certain provisions and manage to obtain nearly all their demands, but the
US nonetheless fails to ratify the treaty. Sometimes the US initiates treaties and is
enthusiastic when signing them, but does not ratify them. For example, after 9/11 the US
pushed other countries to create and ratify the ILO Convention on Seafarers’ Identity
5 Documents to strengthen port of entry security, but the treaty has lingered in the Senate,
supposedly due to a visa provision that contradicts federalism provisions in US
immigration law but surely could be addressed in the interest of reducing terrorism
(Brimmer 2010). Sometimes the US even participates actively in and complies with
treaty regimes, such as the Biodiversity Convention, but does not join. Or it essentially
endorsing treaties it has not itself ratified by referencing as precedential for other USauthored treaties (Charnovitz 2008, 96).
The classic response to these puzzles is that domestic politics and institutions
intervene in foreign policy (Allison 1971; Stoll 1984; Putnam 1988). Institutional theories
point to key veto players (Moravcsik 2005, 150-151). Specifically, Krutz and Peake
(2009) have found that the Senate rules enable 1/3 of senators or the Senate foreign
relations chair to block treaties, and Haller and Holden (1997) have argued that the
supermajority advice and consent rule might boost the bargaining position of a country
also raise the risk that a treaty fails to gain advice and consent.
Research on key veto players has found Republicans to be more likely to oppose
treaties. They are less likely to support arms treaties (Krepon and Caldwell 1991; Delaet
and Scott 2006) and more likely to add reservations (Auerswald and Maltzman 2003,
1097). Conservative Senate foreign relations chairs also delay Senate advice and consent
(Krutz and Peake 2009).
Veto player analysis still leaves some puzzles, however. Some treaties such as the
Rotterdam Convention and the Stockholm Convention stall although they have had the
support of both Democratic and Republican Senate foreign relations chairs and although
both treaties made it out of committee. Clearly for some treaties a few staunch opponents
6 make it nearly impossible for the Senate to provide advice and consent. Preferences in the
Senate can explain these failures, but the mechanism is not clear: a small number of
opponents (i.e., fewer than 33) cannot constitute a veto-player under Senate rules. Yet
other treaties linger, apparently suffering from the opposite predicament: nobody really is
paying attention to them at all. But if the US has cared enough to sign the treaty, then
why not finish the process through advice and consent?
An opportunity costs theory
Although existing theories about veto players and political ideology explain the
fate of some treaties, they leave some questions open. To complement these theories, we
present an opportunity cost theory of treaty ratification. We argue that the US sometimes
delays or derails treaty ratification simply because political capital and Senate floor time
are fixed and entail opportunity costs (Heitshusen 2013, 4). In this context opportunity
costs can be defined as “[T]he foregone uses of the same [chamber] time for legislators as
individuals as well as for the chamber collectively (Koger 2010, 22).” As Koger argues
more generally for legislation, “The expected gains from making a proposal must exceed
the time and effort legislators invest in preparing it, organizing and coalition to support it,
and taking the time of the chamber to debate and pass it (33).” Thus, if the president or
some senators assign only low political value to a particular treaty or if they think that
passage of the treaty will take a lot of Senate floor time, then they may decide that they
would rather spend their political capital on another matter. If they think they have to
fight a war or attrition to overcome opposition, this cost in terms of time and resources
may tip the scales against moving the treaty forward. That is, the opportunity cost of
7 processing the treaty may be too high for the treaty to gain attention, even if the president
or more than the required two-thirds of the Senators think the treaty yields some benefits.
Whether a treaty makes it through the process depends on whether it has sufficient
support to pass through the institutional process and whether its value to politicians
outweighs the opportunity cost of their political resources: legislative floor time and
political capital.
Dealing with treaties is costly because the process is long and time consuming. If
the US signs an international agreement that falls under Article II of the Constitution, the
President must transmit it to the Senate for advice and consent before the US can ratify it.
After transmittal, the Senate Foreign Relations Committee (SFRC) must recommend the
treaty and pass it out of committee. This then has to be scheduled for debate, possible
amendments, and a vote. To gain Senate advice and consent, the treaty must pass with at
least a two-thirds majority. Only then can the President deposit the instrument of
ratification. The treaty can stall at any of these stages. All these steps require political
attention which politicians might prefer to be seen spending elsewhere. Importantly, we
argue that opportunity costs can arise both when the President is deciding whether to
transmit the treaty and when the Senate is deciding whether to push the treaty through the
advice and consent process.
The fixed political agenda space and policy priorities
Opportunity costs arise when resources are fixed and fully employed. Political
agenda space is such a resource; there are only so many policy priorities a president can
promote, and only so much Senate floor time to consider them. The media will pay
8 attention to only so many issues on the Washington agenda. Both the president and the
Senate must protect their legislative opportunities. They each face opportunity costs.
For the president, the transmittal process is neither automatic nor simple. Usually
there has to be some push from the White House (Halloran 2011), which can take
precious time away from domestic legislative efforts. Indeed, in 1995 when President
Clinton wanted to transmit the UN Convention on the Rights of the Child to the Senate,
Jessie Helms, who chaired the SFRC, and 26 co-sponsors introduced a resolution urging
him to not transmit the Convention. Such opposition can be distracting or politically
harmful for the president. Furthermore, because the president usually endorses the treaty
in the transmittal letter, he may incur a reputational cost by transmitting treaties that stall
(Krutz and Peake 2009, 140). Dealing with treaties thus involves political costs, and
withholding transmittal can conserve political capital.
For the Senate, floor time is of the essence. Dealing with a treaty ties up the SFRC
time, but even more importantly, it could potentially take up valuable time on the Senate
floor. Before scheduling a treaty for debate and vote, the relevant actors therefore have to
consider the opportunity cost of dealing with the treaty: What else could the Senate
accomplish with that time? Even if the Senate is not being productive in terms of passing
legislation, what else does the Senate want to be seen focusing on at that moment? Even
if there is strong support for a treaty, Senators may hold back if they anticipate serious
and potentially time consuming opposition – opposition that can result in any number of
procedural maneuvers that could derail the business of the Senate.
Thus, both the president and the Senate face opportunity costs of fixed resources:
Presidents are concerned with “misusing” political capital and opportunities. The Senate
9 is protective of their time, or how they are seen to be using their time by a public
foremost focused on domestic matters. At the same time the political benefits of treaty
ratification is uncertain. Treaty ratification is often invisible, because the media rarely
covers such events and whatever benefits treaties may bring may never be attributed to
them directly.
The implication of this insight is central: contrary to standard assumptions, the
decision to push a treaty through the advice and consent process may be less about an
objective examination of costs and benefits of the treaty itself than about the political
benefit of spending time on the treaty relative to the benefit of other possible agenda
activity that may produce important domestic legislation such as health care reform, for
example. In other words: Senate advice and consent depends on the associated
opportunity cost.
The opportunity cost can manifest itself for many types of treaties. Even nondivisive treaties require some presidential attention and Senate floor time to move
through the process (Johnson 2010), and therefore even these may fall by the wayside.
More important treaties might also be affected by the opportunity cost, however. Even if
opponents might not command the requisite 1/3 of Senators to block the treaty, their
willingness to obstruct it (even the threat to do so) may impose such high costs in terms
of time or distractions that supporters are reluctant to spend time on it when they have
many competing priorities. In a time-constrained Senate, minimal coalitions have become
less important. Each piece of legislation must compete with all other legislation and
having only a minimum backing can deprioritize legislation on the agenda, slowing it
down (Oppenheimer 1985, 410). And although the Senate can use a cloture vote to end
10 filibustering and technically should be able to do so easily if the treaty commands twothirds support, Senators may be reluctant to push for legislation, or treaties, that push
these boundaries (for example, by objecting to a unanimous consent request (Heitshusen
2013, 4).
A comment by Senator Richard Lugar (R-Ind) in a 2009 speech to the
Washington Foreign Law Society illustrates our theory:
“[T]oo often, narrow objections to treaties are allowed to prevent any
Senate consideration. The Senate’s rules allow the Senate to vote to cut off
debate on a treaty, and thereby to ensure that a vote on the treaty may
occur. But the Senate’s leadership – both Democrat and Republican -- has
been reluctant to exercise this option in recent years. Their concern
appears to be that doing so would require the Senate to spend too much
time debating particular treaties, to the exclusion of other matters that have
greater domestic political appeal (Lugar 2009).”
What affects the opportunity costs of treaty advice and consent?
The opportunity cost is foremost a function of the value of the domestic
legislative agenda. Senators and presidents favor issues that increase their popularity and
chances for reelection (Mayhew 1974). This usually means a priority on domestic politics
(Abramson, Aldrich et al. 1987). This is not because the public does not care about
international issues. Trade agreements such as NAFTA or decisions about war can
engender considerable domestic debate (Howell and Pevehouse 2007). These issues,
however, are rarely the topics of treaties submitted for Senate advice and consent. Traderelated treaties are usually handled through congressional-executive agreements, and
choices about war and their conduct are not treaty issues. Thus, Article II treaties are not
the bread and butter of elections. Voters may hold preferences on a given treaty, but these
rarely affect approval ratings or drive elections. As the State Department Treaty Analyst
11 and Depositary Officer noted in an interview: “Treaties don’t have a constituency”
(Halloran 2011).
The prioritization of domestic issues leads the opportunity cost theory to offer an
unconventional proposition. Studies of legislative efficacy argue that when the President
has more co-partisans in Congress, the chances of passing legislation is higher. This is
clearly true, but our opportunity cost theory predicts that presidential support hinders
rather than helps with treaties. This is because the boon of political capital raises the
opportunity cost of the Senate agenda time. Unless they are highly valuable, treaties lose
out to domestic priorities. As a result, despite the fact that they require greater support
and thus would be easiest to pass at such times, when the president has greater support in
Congress, treaties are less, not more, likely to advance. Note that although the House
lacks a formal role in the treaty process, it is of course essential to domestic policy
making (McCubbins and Cox 1993). Therefore, we expect the level of political support in
both the House and the Senate to be relevant in the decision to transmit. That is, with
sizable majorities in both legislative chambers, the President would be especially likely to
focus on domestic priorities. This leads to an observable proposition:
P1: The more co-partisans the President has in the House and the Senate, the less likely
he will be to transmit treaties to the Senate.
Relatedly, evidence suggests that a President’s approval rating correlates with his
ability to further his legislative agenda (Canes-Wrone and De Marchi 2002). In particular,
the empirical evidence points to increased Presidential efforts in areas of high salience to
the public – areas that are nearly always related to domestic policy. Thus, higher approval
levels should lead the President to focus on domestic, rather than foreign policy, agenda
items. This suggests the following proposition:
12 P2: The greater the President’s approval ratings, the less likely he will be to transmit
treaties to the Senate.
The opportunity cost theory also leads to expectations about the propensity of the
Senate to provide treaty advice and consent. As with transmittal, the opportunity cost
theory predicts that the Senate will be less inclined to spend time on treaties when
Senators have opportunities to push for domestic legislative victories. But when is this?
Although time is always scarce in the legislative branch (Hall 1996), the value of Senate
floor time does vary. More specifically, it depends on the election cycle. In election years,
particularly Presidential election years, domestic legislation becomes more contentious as
the election grows nearer (Coleman 1999). Subsequently, Congress shuns policy
positions that could antagonize their electorate and thus legislation on domestic issues
slows considerably, lowering the opportunity cost of Senate floor time. This leads to the
following expectation:
P3: Treaty advice and consent will be faster in presidential election years.
The opportunity cost of treaty passage depends on how much time the Senate
expects a treaty will require. This is important, because not all treaties are self-executing.
Some require the passage of additional legislation to bring the US into compliance with
the treaty. This directly cuts into other domestic legislation opportunities, as new
legislation will need to be written and passed. The opportunity costs for the Senate is thus
greater when it has to vote on not only the treaty itself, but also consider and pass
implementing legislation. The President often states in the transmittal letter whether the
treaty requires implementing legislation, and such requirements will demand that the
13 Senate spends additional time on the necessary legislation. Thus, our opportunity cost
theory expects requirements for implementing legislation to encumber treaty success.
P4: Treaties that require implementing legislation will take longer to receive Senate
advice and consent.
Finally, we are not suggesting that the opportunity cost theory completely
replaces political fights over the merits of a treaty. Rather, there are times when the
Senate will be more willing to bear the cost (in terms of time) of the political battle. That
is, treaties may often take time to receive advice and consent due to traditional partisan
wrangling, but the cost of that time depends on the particular factors we outline above.
With this in mind, we outline two final propositions about how these factors
interact with the political support the president has in Congress. First, we propose that the
cost of implementing legislation is especially pernicious to treaty advice and consent
when the president has significant political support. That is, while the Senate will always
be hesitant to spend time providing advice and consent to a treaty that demands further
legislative activity, the President’s supporters will be especially unlikely to take up such
treaties when they control larger numbers of votes. Those are the periods in which more
work may be done on the domestic side, making the treaty demands for follow-up
legislation particularly costly. This leads to our fifth proposition:
P5: Treaties that require implementing legislation will be slowed down more as
presidential support in congress increases. That is the marginal effect of implementing legislation time on to advice and consent is greater as presidential support increases.
14 Second, presidential election years are often times of high focus on domestic
politics, yet little concrete policy action on the Senate floor, because issues grow
increasingly contentious (Coleman 1999). The lower cost of floor time during
presidential election years should facilitate advice and consent, but only during periods of
stronger presidential support. The lower opportunity cost of election years will not matter
if the president has low support. This is because a stronger opposing political party is
unlikely to give the President any legislative support, even on treaties, and even if Senate
floor time becomes less costly because of an approaching election. Thus, the only time
when election years facilitate treaty advice and consent is when the president has a large
number of co-partisans and subsequent opportunities for legislative accomplishments.
Our final proposition flows from this idea:
P6: During presidential election years political capital matters less for treaties, because
the value of the floor time is lower. That is, the marginal effect of presidential election years on time to advice and consent is greater as presidential support increases.
Treaty Selection
Our data includes multilateral treaties subject to the advice and consent process
after 1967. This year is chosen partly for convenience: it is the first year for treaties in the
Senate’s “Thomas” database on which we build.1 However, this time period also captures
the fact that the use of filibustering, or the threat thereof, has increased over the last fifty
1 We drop treaties from the sample signed before 1945 to confine our analysis to post-war
treaties and avoid outliers. This only results in dropping half a dozen treaties from our
sample 15 years (Koger 2010, 7) and that time has become more constrained in the Senate since the
1960s (Oppenheimer 1985, 396-397). Thus, we expect opportunity cost to operate more
since the 1960s. The data includes all treaties that the US has signed whether or not the
President has transmitted them to the Senate.
Assembling a dataset of these treaties was difficult, because the Thomas database
only contains treaties that have been transmitted to the Senate; no list of signed but nontransmitted treaties exist. Furthermore, it is challenging to decide which international
agreements belong on this list, as some may be executive agreements. To devise an
accurate list, we searched multiple treaty databases for agreements the United States had
signed but not acceded to. These databases include the United Nations Treaty Database,
ECOLEX, The Hague Conference on Private International Law, and Oceana Law. We
also compared our list against a list of multilateral treaties from Gamble’s dataset on
treaties and Wikipedia’s “treaties by year of conclusion (Wikipedia 2012).” After
assembling this list, we consulted with the Office of the Assistant Legal Adviser for
Treaty Affairs in the State Department to identify treaties that were not designated for the
advice and consent process, and also made sure our list was as complete as possible.
We limit our analysis to multilateral treaties, because these differ in important
ways. First, bilateral treaties deal with a smaller set of standard topics. Thus, 88 percent
of the bilateral treaties transmitted to the Senate between 1967 and 2011 fall into five
categories: consular conventions, property or copyright treaties, tax conventions,
investment treaties and extradition treaties. This means that bilateral treaties often are
renewals or minor revisions of treaties with a given country. For these reasons, Galbraith
calls these treaties “repetitive bilateral treaties” (Galbraith 2012, 4). It also means that
16 bilateral treaties often follow standard formats, which enables the Senate to bundle them,
meaning that the Senate passes two or more treaties of the same kind on in the same vote.
This bundling means that any delay in passing these bilateral treaties is irregular because
the Senate holds on to them until there is a hearing for treaties of a given type. Of course,
the mere fact that the Senate often bundles bilateral treaties supports our argument:
Bundling reduces the opportunity cost. Nonetheless, because bilateral and multilateral
treaties differ significantly both in content and how the Senate handles them, we focus
exclusively on multilateral treaties.
Although under international law executive agreements are identical to Article II
treaties that receive Senate advice and consent, we exclude them here because, whether
they are sole or Congressional-executive agreements, their process of ratification, and
often their subject matters, differs from that of the Article II treaties. Sole executive
agreements are unfettered by Congressional control, and therefore we would not expect
the opportunity cost argument to apply. Similarly, Congressional-executive agreements,
although requiring a vote in Congress, incur fewer opportunity costs because their
legislative hurdles in the House are lower than that of Article II treaties in the Senate.
Furthermore, since Congressional-executive agreements often concern trade issues, they
have more domestic political constituents; any opportunity costs arguments, if they apply,
would therefore operate very differently. Finally, a president cannot remove an Article II
treaty from his desk and convert it to a Congressional-executive agreement to facilitate
passage. Treaties are designated as to type at the beginning of the international
negotiation process and cannot be re-designated mid-stream (Halloran 2011). Indeed,
Hathaway (2008: 1239-40), who examines the history of Article II versus Congressional-
17 executive agreements argues there is no “identifiable, rational basis” by which
international agreements come to have one designation over another. Rather, those
designations are a result of a historical evolution of how certain subjects are treated in US
law – not the anticipated likelihood of success of particular agreements.2
Descriptive data
Our sample contained 352 multilateral treaties. Of these, the President has
transmitted 320, and the average time to transmittal is about 1.8 years (standard deviation
about four years), with the maximum being 43 years. Roughly ¾ of the treaties were
ultimately ratified. The average advice and consent time was two years, with the standard
deviation being about four and half years, and the longest spell being 41 years.
The next three figures display signature, transmittal, and advice and consent
trends over time since 1967. Figure 1 reveals a bursts of signatures in the early 1970s and
the 1990s, and a much lower rate in recent years: Whereas until 2003 the US has always
signed at least 4 multilateral treaties a year, after 2003 there has been three years when it
signed only one such agreement, and one year, 2008, when it signed none. This shows
that the flow of treaties available for transmittal varies, something we will account for in
the model. Figure 1 also shows considerable variation over time in advice and consent.
[Figure 1 about there]
2
There is also no evidence that negotiating partners make demands as to the form of
agreement. Furthermore, Hathaway (2008: 1271) also argues that the US has a
“remarkably unusual method of making international law.” This makes it unlikely that
other states could fully game the system by making demands as to agreement type.
18 On average 4.2 multilateral treaties are passed in non-election years, 5.45 in
midterm election years, and 8.52 in presidential election years. As expected in P3, Figure
2 shows presidential election years are particularly active, and the heightened activity in
the fall further supports the opportunity cost theory.
[Figure 2 about here]
Multivariate Analysis
Consistent with other research on Senate consent procedures (McCarty and
Razaghian 1999; Binder and Maltzman 2002; Derouen, Peake et al. 2005; Krutz and
Peake 2009) we use a survival model. Moreover, we analyze both the transmittal decision
and the Senate advice and consent decision. As a robustness check on identification, we
use the predicted scores from the transmittal model in the subsequent advice and consent
model to account for possible selection issues. Our data is time-series, cross-sectional, set
up in treaty-year format to capture changes in the key independent variables when a
treaty remains on the President’s desk or in the Senate for more than one year.
Core Variables
We examine the influence of political party support in both houses of the
legislature (P1) by defining President % Control, which is the percentage of the House
and Senate controlled by the party of the President. To examine (P2) we introduce
Approval, the annual average of the Gallup Presidential approval poll for each year of
observation (Gallup 2012). We include this variable only in the first stage of our model
given that this is a factor that Presidents are likely to consider, but not the Senate in their
decision-making. To address P3 involving the dynamics of the electoral calendar and its
19 effect on opportunity costs, we create an indicator for Presidential election year. Finally,
we address P4 by introducing the variable Implementation, which indicates whether the
President’s transmittal letter notes that further domestic legislation is required to
implement the treaty.
Control variables
We include several control variables based on existing theories of the role of
preferences and institutions. We define SFR Chair as the DW-Nominate score of the
chair of the SFRC. The Nominate score measures the underlying liberal-conservative
spectrum of the voting record of members of Congress (Lewis and Poole 2004). Higher
DW-Nominate scores suggest a more conservative committee chair, while lower values
suggest a more liberal chair. Because the chair of the committee remains for two years,
this variable varies every other year. Similarly, we use the DW-Nominate scores to define
Conservative Senator to measure the ideology of the most conservative Senator in the
chamber. The last ideological variable is an indicator for Democratic President.
We also calculate Treaties Available as the number of treaties available to be
transmitted based on the number of untransmitted treaties left from previous presidents
and the new number of treaties signed during the year. We control for these same
dynamics in the advice and consent stage by computing the number of treaties under
20 consideration in the Senate, also labeled Treaties Available but computed as the number
of treaties available to the Senate, post-transmittal.3
Finally, issue area could influence the speed at which the treaty moves through
the process. Our focus is not on how issue-specific treaty attributes hinder ratification,
but we control for any treaty-level characteristic that might be correlated with the
propensity to support these treaties. Thus, we classify treaties into four broad categories
of types: Human Rights (e.g., UN human rights treaties), Commercial (e.g., trade
agreements), International Law (e.g., technical treaties regarding rules and procedures in
international law), Environment (e.g., regulatory treaties involving the environment), and
Arms Control (e.g., multilateral arms control treaties).
Results
We estimate a series of Weibull models, using the accelerated failure time metric
to ease interpretation. Positive coefficient estimates indicate shorter transmittal/ advice
and consent times. Negative signs indicate longer transmittal/ advice and consent times.
Table 1 displays our main results, and tables 2 conducts robustness checks.
The estimates of the transmit stage of the model are found in column 1 of Table 1.
Supporting the opportunity cost logic, President Percent Control is negative and
statistically significant: the more co-partisans the President has in Congress, the greater
his opportunity costs and the longer he takes to transmit treaties. Moreover, the effect is
3 This takes account also of treaties that are no longer available because they have been
returned to the president. 21 substantively important as well. Increasing the average number of co-partisans by one
standard deviation yields an increase in the predicted transmit time of nearly 25 percent,
or roughly one year.4 Similarly supportive of the opportunity cost logic, the estimate of
Approval also is negative and statistically significant indicating that higher levels of
public approval may encourage the President to spend time on key priorities and
therefore increase transmit times for treaties.
Several control variables achieve statistical significance and the estimates are
consistent with prior theoretical expectations. First, SFR Chair is negative and
statistically significant, indicating that more conservative chairs the longer transmittal
times. Similarly, the more conservative is the most conservative Senator, the longer the
transmit time from the President’s desk, as suggested by the negative and statistically
significant coefficient on Conservative Senator. This is consistent with the President’s
anticipatory logic that staunchly opposed senators may take up extraordinary floor time to
block a treaty or make a distracting political issue out of a particular treaty. Conversely,
the positive estimate of Democratic President indicates that democratic Presidents
transmit treaties to the Senate faster. Finally, the Commercial indicator for treaty type is
4
All predicted probabilities are computed against a baseline model assuming a
Democratic President, an environmental treaty, and all other variables held at their mean
or modal value. This finding is robust to adding an indicator variable to control for
divided government to the model – the new variable is not statistically significant, nor
does it affect the estimate of President Percent Control.
22 statistically distinct from the reference category (environmental treaties), but chi-square
tests show it cannot be distinguished from other treaty categories.
Model 1.2 re-estimates the advice and consent stage of the model, adding
Presidential Election Year to ensure this variable does not also belong in the first stage of
the model. As Table 2 shows, the estimate of this new variable does not achieve
statistical significance nor does it alter the estimates of our other variables of interest.5
Turning to our model of advice and consent, the first estimates can be found in
Table 1, model 1.1. The estimates of the opportunity cost variables are consistent with
our theory. First, consistent with P3 Presidential election year is positive and statistically
significant, indicating that treaties move through the advice and consent process at a
much quicker rate – about 40 percent faster in Presidential election years.
Consistent with P4 the Implementation variable is negative and statistically
significant suggesting that treaties requiring further legislative effort are more likely to
experience a delay in advice and consent. This variable has a substantively important
effect as well: treaties requiring implementing legislation, on average, experience a
doubling of advice and consent time. Finally, also consistent with our expectations,
President Percent Control is very close to statistical significance with a p-value of 0.101.
This is consistent with a finding by Krutz and Peake (2009, 159-161), who found it
puzzling and left it largely unexplained.
5
The same is true of Implementation – adding it to the first stage of the model makes no
difference to our estimates nor is the new variable statistically significant.
23 Among our control variables the measure of the ideology of the Senate Foreign
Relations chair is highly statistically significant and substantively meaningful. Increasing
the conservativeness of the chair by one standard deviation leads to a predicted increase
of nearly 40 percent in the time of advice and consent or roughly two years. The
remaining estimates fail to achieve statistical significance, with one exception. The
indicator for Human Rights treaties differs statistically from the reference category and
also from the other treaty types, suggesting that human rights treaties are delayed
extensively, a finding consistent with arguments in the legal literature (Bradley 2010, 331,
333). Indeed, compared to the reference category (environmental treaties), human rights
treaties linger, on average, over 15 years longer in the Senate.
Models 2.2 and 2.3 assess the interactive propositions (P5 and P6). Model 2.2
finds support for P5. To assess these interaction effects, it is easiest to graphically
examine the predicted change in advice and consent time while varying one of the
interaction terms (here, President % Control).6 Figure 3 displays the marginal effect of
implementing legislation on time to advice and consent, conditional Presidential %
Support. Consistent with the idea that time taken on political showdowns over treaties are
more costly when the President has larger numbers of co-partisans and could push other
legislative priorities, the figure shows that treaties requiring implementing legislation will
be slowed down more as presidential support in Congress increases. Indeed, according to
6
In addition, a test of joint significance indicates the two linear and interaction terms are
jointly significant at the p < 0.01 level. This is true for both model estimates.
24 these estimates, the effect of Implementation is strongest once the president controls
roughly half the seats in Congress.
Similarly, Model 2.3 finds support for P6. Figure 4 also displays the marginal
effect of Presidential election years on time to advice and consent, conditional on
President % Control. Consistent with P6 it shows that the president’s political support in
Congress speeds the advice and consent of treaties only during presidential election
years.7 These final two models do suggest that the President’s political support is
important in calculations about advice and consent, although the initial estimates of
President % Control were not statistically significant. This is consistent with the idea that
opportunity costs do not substitute for political calculations, but rather complements them
– traditional measures of political power are statistically significant conditional on
measures of the value of legislative floor time.
Next, as a robustness check, we re-estimate models 2.2 and 2.3, but include a new
variable, Predicted Transmit, which was generated from the estimated transmittal model
in Table 1 to account for possible selection issues.8 As Table 2 shows, the variable is not
7
For both interaction graphs, we reverse the calculation of the marginal effects, as
suggested by Berry, Golder, and Milton (2012). These new calculations yield similar
substantive effects and identical substantive interpretations. Please see the reviewer’s
appendix for these graphs.
8
Note that the model gains identification from the inclusion of Approval in the first stage
and Presidential Election Year and Implementation in the second stage. In addition,
25 itself statistically significant in either re-estimation.9 Graphing the interactions show that
it does not change the main results from model 2.2 which modeled the interaction of
Implementing with President % Support. Nor does it change the significance of the
results from model 2.3, which examined the interaction of Presidential Election Year and
President % Support. This suggests that there were no problematic selection processes
driving our previous estimates.
Conclusion
We have advanced an opportunity cost theory of treaty ratification. This theory
argues that the fixed political capital and agenda space adds an opportunity cost to
dealing with treaties because the President and the Senate must choose whether to spend
time on the treaty or on other, often more valued, domestic legislation. This means that
the decision to push a treaty through the advice and consent process may be less about
whether the benefits of the treaty outweigh its costs than about the benefit of spending
time on the treaty relative to the benefit of other possible agenda activity. Thus, the fate
of a treaty is not only about national interests, as most international relations theory
assumes, or about the preferences of veto players, as argued by institutionalists. Those are
important factors, and our theory does not attempt to overturn them. Rather we argue that
because Treaties Available is measured as only those treaties on the President’s desk in
the first stage, it can also be used to help in model identification.
9
Standard error estimates are bootstrapped to account for estimation uncertainty. Re-
creating the graphs of marginal effect for the interactions yields nearly identical results.
26 they obstruct the treaty process more or less under particular conditions, and the president
and Senate may find them so large that treaties either get delayed or become stuck
indefinitely.
Through interviews, descriptive analysis, and modeling of both the transmittal and
advice and consent processes, we find considerable support for this theory. When the
president has more co-partisans in Congress opportunity costs are high. Consequently he
is less likely to transmit treaties to the Senate. Moreover, in the Senate the electoral
calendar and the added implementation costs of the treaty matter more. Most of these
factors should not matter (or should matter in different ways), but our opportunity costs
theory explains their significance.
Our findings contrast with the patterns in the Senate advice and consent on
presidential nominations. In that area, divided government, political polarization, and
elections obstruct progress. This is because presidential nominations are domestic matters,
which are forced onto the Senate agenda, whereas treaties are foreign policy matters,
which are optional and face multiple hurdles.
The fact that the current advice and consent process unduly delays treaty
ratification supports the calls of some legal scholars for amending the process (Hathaway
2008; Galbraith 2012). Although some scholars propose making greater use of the
congressional-executive agreement process for a greater share of international
agreements, others propose that the Senate should have greater involvement in the
process earlier on and should then have the option of giving “prospective consent” prior
to the treaties’ final negotiation. However, the opportunity cost theory suggest that part of
27 the problem is that the Senate may not prioritize treaties sufficiently to spend time on
them, a problem that prospective advice and consent might not solve.
For international relations theory, the findings mean that at least in the United
States, a unitary conceptualization of national preferences does not translate as
straightforwardly into national politics as traditional cross-national analysis of treaty
ratification assumes. Not only do states not act as unitary actors; their decision to join
treaties does not depend purely on an analysis of its costs and benefits. States may not
join treaties that are in their general interests. More sophisticated incorporation of
domestic veto-players is useful, but it too expects that treaties that enjoy wide support
would receive timely Senate advice and consent. However, we have found that
sometimes it is primarily a matter of priority, not inherent value or support.
The consequences of opportunity costs are important because the United States
often plays a pivotal role in whether international cooperative efforts are successful.
Without the United States, it may be harder to get other countries to join, and the United
States itself may lack a full voice within organizations. Thus, the opportunity cost of the
advice and consent process can hamper global cooperation more broadly.
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32 December November October September August July June May April March February January 0.00 0.50 1.00 Presidential election years 1.50 2.00 midterm election years 2.50 3.00 3.50 no election year Figure 2: Average number of multilateral treaties passed in a given month, 1967-2011
33 -5
Effect on Median Advice and Consent Time
0
5
10
15
20
Marginal Effect of Implementation
.35
.4
.45
.5
President % Control
.55
Figure 3: The marginal effect (using 90% confidence intervals) of implementing legislation on time to advice and consent, conditional on Percent Support for the president in Congress .6
34 -10
Effect on Median Advice and Consent Time
-5
0
Marginal Effect of Election
.35
.4
.45
.5
President % Control
.55
Figure 4: The marginal effect (using 90% confidence intervals) of presidential election year on time to advice and consent, conditional on Percent Support for the president in Congress .6
35 Table 1: Weibull models of the multilateral treaty transmittal process, 1967-2008.
Model 1.1 Model 1.2 Arms Control -­‐0.059 -­‐0.055 (0.234) (0.234) Commercial -­‐0.412** -­‐0.409** (0.176) (0.176) Int'l Law -­‐0.241 -­‐0.239 (0.188) (0.188) Human Rights -­‐0.479 -­‐0.479 (0.300) (0.300) Approval -­‐0.008* -­‐0.009** (0.004) (0.004) Conservative Senator -­‐1.241* -­‐1.228* (0.727) (0.727) Democratic President 0.638*** 0.652*** (0.169) (0.169) SFR Chair -­‐0.632*** -­‐0.630*** (0.144) (0.144) Treaties Available 0.014* 0.014* (0.007) (0.007) Election -­‐0.107 (0.116) President % Control -­‐3.506*** -­‐3.638*** (0.897) (0.905) Constant 0.923 1.042* (0.609) (0.621) ln (p) -­‐0.071* -­‐0.070 (0.043) (0.043) Observations 1,871 1,871 Robust standard errors in parentheses *** p<0.01, ** p<0.05, * p<0.1 36 Table 2: The multilateral treaty advice and consent process, 1967-2008.
Arms Control Commercial Int'l Law Human Rights President % Control Conservative Senator Democratic President SFR Chair Treaties Available Presidential Election Year Election X Pres. % Support Implementation Implement X Pres. % Control Predicted Transmit Time Constant ln (p) Observations Model 2.1 0.363 (0.229) 0.343 (0.232) 0.132 (0.258) -­‐1.495*** (0.397) -­‐1.680 (1.040) 0.883 (0.662) 0.200 (0.188) -­‐0.781*** (0.154) -­‐0.009 (0.006) 0.416*** (0.103) -­‐0.406** (0.207) -­‐1.035 (0.691) -­‐0.100* (0.052) 1,406 Model 2.2 0.379* (0.229) 0.346 (0.232) 0.140 (0.256) -­‐1.470*** (0.398) -­‐0.801 (1.076) 0.907 (0.663) 0.195 (0.188) -­‐0.773*** (0.154) -­‐0.009 (0.006) 0.403*** (0.103) 1.390* (0.773) -­‐3.771** (1.609) -­‐1.482** (0.721) -­‐0.097* (0.052) 1,406 Model 2.3 0.376* (0.228) 0.388 (0.260) 0.149 (0.264) -­‐1.415*** (0.426) -­‐0.657 (1.083) 1.030 (0.711) 0.161 (0.198) -­‐0.748*** (0.162) -­‐0.009 (0.006) 0.403*** (0.103) 1.380* (0.769) -­‐3.762** (1.604) -­‐0.027 (0.064) -­‐1.553** (0.730) -­‐0.097* (0.052) 1,406 Model 2.4 0.362 (0.229) 0.340 (0.230) 0.137 (0.258) -­‐1.492*** (0.397) -­‐2.456** (1.169) 0.944 (0.659) 0.180 (0.189) -­‐0.749*** (0.155) -­‐0.010* (0.006) -­‐0.588 (0.630) 2.098 (1.276) -­‐0.401* (0.207) -­‐0.626 (0.742) -­‐0.095* (0.052) 1,406 Model 2.5 0.359 (0.228) 0.379 (0.258) 0.145 (0.266) -­‐1.440*** (0.426) -­‐2.306* (1.178) 1.061 (0.706) 0.148 (0.200) -­‐0.726*** (0.162) -­‐0.010* (0.006) -­‐0.576 (0.628) 2.071 (1.272) -­‐0.406* (0.208) -­‐0.026 (0.064) -­‐0.702 (0.753) -­‐0.095* (0.052) 1,406 Robust standard errors in parentheses *** p<0.01, ** p<0.05, * p<0.1 37 Reviewers Appendix Table A1. Descriptive Statistics
Variable
Transmit Model
Type: Arms Control
Type: Commerce
Type: Int’l Law
Type: Human Rights
Approve
President % Control
Conservative Senator
Democratic President
SFR Chair
Transmit Available
N
Mean
S.D.
1871
1871
1871
1871
1871
1871
1871
1871
1871
1871
0.09
0.33
0.26
0.13
53.45
0.50
0.72
0.40
-0.07
34.38
0.08
0.18
0.25
0.24
0.49
0.74
0.34
-0.04
50.86
0.27
3.77
0.32
Advice and consent Model
Type: Arms Control
1406
Type: Commercial
1406
Type: Int’l Law
1406
Type: Human Rights
1406
President % Majority
1406
Conservative Senator
1406
Democratic President
1406
SFR Chair
1406
Ratification Available
1406
Presidential Election
1406
Predicted Transmit
1406
Implementation
1406
Min
Max
0.29
0.47
0.44
0.34
11.36
0.080
0.082
0.49
0.43
9.62
0
0
0
0
28.25
0.35
0.51
0
-0.61
2
1
1
1
1
85.25
0.68
0.91
1
0.77
47
0.27
0.39
0.43
0.43
0.07
0.08
0.47
0.45
8.32
0.44
1.40
0.47
0
0
0
0
0.35
0.66
0
-0.61
28
0
1.62
0
1
1
1
1
0.64
0.91
1
0.77
66
1
8.72
1
38 Figure A1. Hazard rate for treaties signed by the US transmitted to the Senate.
0.00
0.25
0.50
0.75
1.00
Survival Function for Treaty Transmittal
0
10
20
30
40
50
Years
Figure A2. Hazard rate for advice and consent of treaties transmitted to Senate.
0.00
0.25
0.50
0.75
1.00
Survival Function for Advice and Consent
0
20
40
60
Years
39 Figure A3. Marginal Effect of President Percent Control, conditional on Implementation
Effect on Median Advice and Consent Time
0
20
40
60
80
100
Marginal Effect of Prez. % Control
0
1
Implementation
Figure A4. Marginal Effect of President Percent Control, conditional on Election
-10
Effect on Median Advice and Consent Time
0
10
20
30
40
Marginal Effect of Prez. % Control
0
1
Presidential Election Year
40