Advice and Consent
Senator Russ Feingold had hoped the Senate Democratic leadership would
challenge George W. Bush's decision to withdraw the United States from
the Anti-Ballistic Missile Treaty. At the least, he had expected senior
Democratic senators with track records on arms control to defend the
agreement between the United States and Russia that since 1972 has
underpinned efforts to curb the arms race. In a Senate where Democrats
are still hypercautious about questioning the Bush White House on
defense issues, however, Feingold stood alone.
"I wanted the leadership to take a lead. But when we contacted [majority
leader Tom] Daschle's office, they just weren't interested," said the
Wisconsin Democrat. Feingold knew that meant it would be impossible to
get the Senate to block withdrawal from a treaty it had approved 88 to 2
in 1972. Still, he said, "I did not want the Senate to be silent on
this." Three days before the June 13 expiration of the treaty, Feingold,
chairman of the Judiciary Committee's subcommittee on the Constitution,
rose on the Senate floor to remind his colleagues of the constitutional
requirement that decisions regarding treaties be made by the President
"with the advice and consent of the Senate" and of the Founders'
intent--as explained in Thomas Jefferson's Manual of Parliamentary
Practice: For the Use of the Senate of the United States--that
"Treaties being declared, equally with the laws of the United States, to
be the supreme law of the land, it is understood that an act of the
legislature alone can declare them infringed and rescinded."
"It is clear to me, Mr. President, as it was to Thomas Jefferson, that
Congress has a constitutional role to play in terminating treaties,"
Feingold declared. "If advice and consent of the Senate is required to
enter into a treaty, this body should at a minimum be consulted on
withdrawing from a treaty, and especially from a treaty of this
magnitude, the termination of which could have lasting implications on
the arms control and defense policy of this country."
When Feingold sought unanimous consent to debate a resolution making
that point, however, Orrin Hatch, the ranking Republican on the Senate
Judiciary Committee, objected. That ended any hope for a Senate
challenge to Bush. Meanwhile, GOP leaders in the House blocked an
attempt by Dennis Kucinich to assert that chamber's authority to
preserve the treaty.
The failure of Daschle and other Senate Democrats to stand with Feingold
illustrates how, post-September 11, the loyal opposition frequently
chooses loyalty to misguided Administration initiatives over necessary
opposition. But if Senate Democrats are unwilling to fight the power,
Feingold hopes a judge will do so. He has asked for Senate approval to
accept pro bono legal assistance so he can join a lawsuit filed June 11
in the US District Court in Washington by Kucinich and thirty other
House members who object to the President's unilateral decision. Peter
Weiss, lead lawyer for the lawmakers, says that if it succeeds, Bush
would be forced, retroactively, to seek Congressional approval of the
Feingold's participation in the suit is important, as a judge could
decide he has better standing than a House member in a legal matter
involving interpretation of the requirement that a President seek the
consent of the Senate. Still, the suit is a long shot. A federal judge
backed a 1979 attempt by the late Senator Barry Goldwater to block
termination of a defense treaty with Taiwan, but an appeals court
overturned that ruling and the Supreme Court refused to take the case.
That does not deter Kucinich. "The basis of this whole government is the
Constitution. When an Administration comes to power in a manner that is
extraconstitutional, as the Bush Administration did, it becomes all the
more essential that we insist upon the legitimacy of the founding
documents, on the sacredness of those documents," says Kucinich.
"Washington has become a very vulgar place, but the Constitution is