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Monday, December 10, 2012

Foreign Travel by Members of Congress (Part I)

The Constitution allocates power over the conduct of foreign relations primarily to the executive, but diplomacy by Congress is common. Members of the House and Senate frequently travel overseas as part of congressional delegations—or “CODELs”—to meet with foreign officials, and foreign officials often make stops on Capitol Hill to discuss legislation. In recent years, visiting heads of state such as Benjamin Netanyahu and Lee Myung-bak have even issued formal addresses to Congress. Moreover, these practices are nothing new; federal legislators and foreign officials have been communicating with each other ever since the First Congress convened in 1789.

I think these practices are fascinating for a couple of reasons. First, no one really has a sense for how frequently they occur, where legislators are traveling, or why they go there. News media rarely mention foreign lobbying of Congress. Some media outlets have called attention to expenses incurred by Nancy Pelosi and others during various trips abroad, but there are no complete reports on the nature and extent of contacts between federal legislators and foreign governments. Yet these contacts constitute a significant mode of engagement between the United States and the rest of the world, and have a real impact on the way in which other nations perceive U.S. policy.

Second, I think the diplomatic contacts are fascinating because they challenge the prevailing understanding that diplomacy is a prerogative of the executive branch. Most analyses don’t seem to acknowledge that legislative diplomacy occurs, much less address the extent of its constitutionality. One resulting problem is theoretical: the gap between theory and practice means either that Congress systematically violates the separation of powers, or that the prevailing understanding of executive power is at least incomplete, and possibly incorrect. A second problem is practical: lacking a theoretical foundation, legislative diplomacy occurs in a constitutional void that imposes no principled limits on the conduct of members of the House and Senate, and offers no guidance on the extent to which planned communications are permissible.

I’m currently writing an article—entitled “Legislative Diplomacy”—that addresses these issues. One purpose is empirical. I use evidence from Wikileaks and a variety of public reports on congressional travel to provide an extensive account of the nature and volume of contemporary diplomacy by Congress. This evidence shows that legislative diplomacy is surprisingly frequent, widespread, and longstanding. The other purpose of the article is to offer a constitutional analysis of the contemporary practice. In my next post, I’ll share some of the data I collected. 

Posted by Ryan Scoville on December 10, 2012 at 03:23 PM in Constitutional thoughts, International Law | Permalink

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Comments

Any thoughts on how the Logan Act fits into the picture?

Posted by: Peter Spiro | Dec 12, 2012 2:18:52 PM

That's a good question. I think it's pretty clear that the Logan Act applies to federal legislators as much as private citizens; the text refers to "any" U.S. citizen, several of the legislators who debated enactment seem to have understood that the Act would apply to them, and although no prosecutions have ever occurred, there's a long history of allegations of Logan Act violations against members of Congress. That said, I think it's also the case that most CODELs are compliant with the Act because they obtain prior authorization from congressional leadership and support from the executive branch. The State Department, for example, arranges a lot of the travel logistics, and the Defense Department makes military aircraft available for the CODELs. Given this support, it's hard to argue that the CODELs occur "without the authority of the United States." But non-official delegations, or "NODELs," tend not to receive official approval, so the Logan Act argument against them is stronger.

Posted by: Ryan Scoville | Dec 12, 2012 4:31:28 PM

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