The Senate could begin debate over New START nuclear reductions with Russia as early as tonight or tomorrow morning, but already Republican senators have secured a procedural ruling that could make it easier for them to bring up what are being called "treaty killer" amendments.
Senate Majority Leader Harry Reid (D-NV) has decided to bring the New START treaty to the floor in parallel with the Senate's other major obligation this week, passing an overall funding bill to keep the government running, a senate Democratic leadership aide confirmed to The Cable. The treaty has been placed on what's known as the "executive calendar," meaning that the Senate can go back and forth debating both the treaty and the funding bill for the rest of the week, the aide explained.
New START "is on the executive calendar which means they don't need our consent to get on it, nor have they needed it all year," a GOP senate leadership aide told The Cable. "But since the government shuts down on Saturday if we don't pass a funding bill, I would imagine they'll want to turn to funding the government next."
In fact, the plan is to do both at once -- get the ball rolling on New START while also tackling the funding issue -- the Democratic leadership aide confirmed.
Republicans are still divided as to whether there is enough time to debate and ratify the treaty this year, but Senate leadership is moving forward regardless. To prepare for the coming debate, several GOP senators asked the Senate parliamentarian to give an official ruling on whether the preamble to the treaty is open for amendments.
Treaty supporters object to amending the preamble, because any changes would force the treaty to go back to bilateral negotiations with the Russians, which could take months and possibly even scuttle New START entirely.
This is why treaty supporters refer to such amendments as "treaty killers." The negative effect that amendments would have on the process is likely far greater than the effect the amendments would have on the agreement itself.
On Tuesday, the parliamentarian ruled in the GOP's favor, stating that yes, the preamble to the treaty is amendable. We're told that several GOP senators are preparing to try to amend it to take out the language that acknowledges the link between offensive and defensive missile capabilities.
"We have been asked to re-examine the precedent which states that preambles to treaties are not amendable," the Senate parliamentarian stated in his ruling, which was obtained by The Cable.
The parliamentarian ruled that a precedent in Riddick's Senate Procedure guide from May 18, 1998, (noted at footnote 31 in the treaties chapter of Riddick's), which stated that treaty preambles were not amendable, was not correct. Therefore, there's no reason why senators can't try to change the preamble during the floor debate.
"We have found no other authority to support the conclusion that preambles to treaties are not amendable, nor have we heard an argument to support that position," the parliamentarian stated in his ruling. "Unless it can be demonstrated to us that there is in fact valid precedent or convincing logic preventing the Senate from amending preambles to treaties, we will advise from this point forward that preambles to treaties may be amended."
It's no coincidence that the five senators who asked the parliamentarian for the ruling are all GOP senators currently arguing for a delay in treaty consideration until next year. They are Sens. Jon Kyl (R-AZ), John Thune (R-SD), James Risch (R-ID), Jim DeMint (R-SC), and John Barrasso (R-WY).
Kyl is the GOP point man on New START. Thune's state is home to strategic bomber fleets. Risch almost derailed the committee hearing over New START over an undisclosed intelligence concern. DeMint is a staunch treaty opponent and is advocating for a huge expansion of missile defense. And Barrasso actually tried to amend the preamble in committee, but his amendment was ruled out of order by Senate Foreign Relations Committee Chairman John Kerry (D-MA). Kerry will have trouble blocking that amendment on the floor if the parliamentarian's ruling is allowed to stand.
Treaty supporters have maintained that the language is not legally binding and does not constrain U.S. missile defense plans. Republicans are planning to try to turn that argument on its head.
"Given the insistence by treaty supporters that the preamble is non-binding and could not be used by Russia to withdraw, one should assume they no longer have any objections to removing the missile defense provisions from the Treaty now that amendments are in order," one senior GOP senate aide said.
What about the substance of the preamble language itself? Here's what it says, exactly:
"Recognizing the existence of the interrelationship between strategic offensive arms and strategic defensive arms, that this interrelationship will become more important as strategic nuclear arms are reduced, and that current strategic defensive arms do not undermine the viability and effectiveness of the strategic offensive arms of the Parties."
And here's what Secretary of State Hillary Clinton said about that language at the Council on Foreign Relations in May:
"The treaty's preamble does include language acknowledging the relationship between strategic offensive and defensive forces, but this is simply a statement of fact. It does not constrain our missile defense programs in any way. In fact, a similar provision was part of the original START treaty and did not prevent us from developing our missile defenses."
And here's what Senate Armed Services ranking Republican John McCain (R-AZ) said about the language at a hearing in July:
"We originally were told there would be no references to missile defense in the treaty, and no linkage drawn between offensive and defensive weapons. Then we were told there would be such a reference, but only in the preamble, which of course is not legally binding. However, in the final treaty text -- not just in the preamble, but Article 5 of the treaty itself -- there is a clear, legally-binding limitation on our missile defense options. While this limitation may not be a meaningful one, it is a limitation."
UPDATE: Kyl said Tuesday he still doesn't think there's enough time to complete work on the treaty this year and that he will try to defeat the treaty if it comes up during the lame duck session. "I let the majority leader know that's an issue for a lot of my colleagues," Kyl told reporters Tuesday. "And if he does bring it up, I will work very hard to achieve that result, namely that the treaty fails."