Republican Senator Tom Cotton sparked a political firestorm with his March 9 open letter to the leaders of Iran, co-signed by 46 of his colleagues. The letter warns Iranian negotiators that President Obama’s successor could cancel any agreement with the United States not approved by the Senate as a formal treaty.
Denunciation of the action has been intense, even by the standards of a polarized Washington. Madeleine Albright called it “fairly outrageous.” #47traitors has been trending on Twitter.
But it’s not just the contents of the letter that has rankled so many Washington observers. If Tom Cotton had said precisely the same thing on CNN, on the floor of the Senate, or on the campaign trail, it wouldn’t have been news, much less a lead story. Cotton’s observations on US treaty law are facile at best, the stuff of an elective constitutional law course.
It’s not the substance, it’s the form.
“Protocol” or something more?
Many media commentators have characterized the letter as a “breach of protocol,” as if it has been out of institutional politesse that members of Congress have historically refrained from this kind of direct communication with foreign leaders.
That understates the case considerably. Established constitutional doctrine holds that that presidents have exclusive authority to engage foreign governments on the nation’s behalf. As then-congressman, later-chief justice John Marshall said on the House floor in 1800, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”
The Supreme Court adopted Marshall’s dictum in its seminal 1936 decision in United States v. Curtiss-Wright Export Corporation. “In this vast external realm, with its important, complicated, delicate and manifold problems,” intoned the Court, “the President alone has the power to speak or listen as a representative of the nation.”
Foreign affairs freelancing near the water’s edge
The “sole organ” doctrine reflects the old adage that politics stops at the water’s edge. The national interest required one voice in the realm of foreign affairs, and that voice was naturally the president’s.
The doctrine even found a foothold in the criminal code. The 1799 Logan Act makes it a felony to carry on “correspondence or intercourse with any foreign government … with intent to influence the measures or conduct of any foreign government … in relation to any disputes or controversies with the United States.”
Even though no one has ever been prosecuted under the Logan Act, it shows that the Founding generation saw serious risks in foreign relations freelancing. (A petition to the White House demanding Logan Act charges against the letter-signers has garnered more than 200,000 signatures in record time.)
In that earlier era, of course, it was easier to control the flow of communication. Diplomats spoke only to other diplomats. The conduct of foreign policy could be centralized. Congress didn’t have the capacity to meddle in negotiations. With respect to treaty ratifications, Congress has always held a constitutional trump in the form of required two-thirds’ consent. But that is an after-the-fact mechanism, an in-house check on presidents getting out of hand.
On the internet, everyone can talk to anybody
With the advent of modern communications and especially the internet, it’s no longer possible to establish choke points in government-to-government interaction. Everybody can talk to anybody. As I note in this paper, the state is being disaggregated. Members of Congress and their staffs now routinely interact with foreign government officials.
In that respect, the Cotton letter is the tip of the iceberg. The episode might set some limits on future congressional forays into foreign policy, given the intensity of the backlash. In an era in which party loyalties run high, even some GOP leaders have expressed misgivings. The letter may actually undermine GOP efforts to scuttle an Iran agreement. That may deter copycats. In other words, this could be a one-off.
Or it could become part of the playbook for opposition legislators.
Let’s say you aren’t making headway on the terrain of domestic politics. Why not take your case to the global stage by directly and publicly communicating with foreign leaders? Democrats on the Hill will surely have opportunities to turn the tables and exploit the precedent to their advantage. A Republican president would be hard-pressed to condemn a Democrat move enjoying a GOP pedigree.
The result: a free-for-all foreign policy, a scaling up of the polarization already endemic to domestic politics.
No one should welcome the prospect, but it may become a fact of life. Expect presidents to up the ante by taking more aggressive unilateral measures, further reducing the possibility of inter-party cooperation.
This may be a peek at a new kind of politics beyond the water’s edge, requiring new kinds of navigation.