When discussing the history, effectiveness, or future of United States foreign policy it is essential to consider the organization and motivations of the actors who shape it. These actors primarily include (but are not limited to) the President of the United States, the U.S. Department of Defense, the U.S. Department of State, the U.S. Intelligence Community, and the U.S. Congress. While the foreign policy positions and actions of the President and these federal agencies are widely discussed in the media, the actions of Congress get less attention. Congress’ ability to impact U.S. foreign policy is seen as lesser than that of the President or these agencies. Congress is primarily perceived and criticized by the media and the public as a domestic actor. However, given that Congress is the sole entity capable of declaring war and that the President needs two-thirds of the Senate’s approval to ratify any treaty, Congress can actually play a critical role in the development of U.S. foreign policy. This article provides a brief overview of the United States’ position on and actions in Iran in regards to their nuclear program in order to analyze the process by which the U.S. Senate, and in particular the Senate Committee on Foreign Relations (SFRC), influences U.S. foreign policy. The article begins by offering a brief history of Iran’s nuclear program and a description of the SFRC structure. The second half of the article outlines the foreign policy tools of the Senate, examining the use of resolutions, bills, confirmation hearings, additional hearings and official statements, treaty ratification, and budgetary powers, respectively, to affect U.S. foreign policy on Iran.
For more than a decade, the focus of U.S. foreign policy toward Iran has centered on Iran’s nuclear program. In 2002, the National Council of Resistance of Iran revealed that Iran was developing undeclared nuclear facilities. Iran denied this allegation. Still, according to The Nuclear Threat Initiative, Iran entered into talks with France, Germany, and the UK to avoid referral to the UN Security Council (UNSC). As a result of these talks, Iran signed the Additional Protocol Resolution created by the International Atomic Energy Agency (IAEA), interrupting their enrichment activities. In 2005, Iran rejected a long-term agreement proposed by France, Germany, and the UK, declaring its intention to resume uranium conversion activities. The following year, the UNSC passed Resolution 1696, “which demanded that Iran suspend enrichment activities, banned the international transfer of nuclear and missile technologies to Iran, and froze the foreign assets of twelve individuals and ten organizations involved with the Iranian nuclear program.” In 2008, The UNSC reiterated this position with Resolution 1835, after Iran continued enrichment activities, refused to fully cooperate with the IAEA, and turned down an economic incentives package offered by the P5+1. In September 2009, Iran notified the IAEA of its intention to construct a second enrichment facility. At talks with the P5+1 the following month, Iran agreed to IAEA inspections; however, negotiations broke down after Iran reneged on a fuel exchange deal with France and Russia. After Iranian President Mahmoud Ahmadinejad announced a deal to build ten additional enrichment facilities in 2009, the U.S. House of Representatives passed a bill permitting President Obama to impose sanctions on companies supplying gasoline to Iran. As The Nuclear Threat Initiative outlines, actors continued to take these kinds of multilateral and unilateral actions on Iran in the following years as various attempts at negotiations continued to break down. In 2010, for example, the UN Security Council imposed another set of sanctions on Iran’s nuclear investment. In November 2011, the IAEA published a report outlining “possible military dimensions” to Iran’s nuclear program. Also in 2011, the U.S. Congress added the Menendez-Kirk amendment to the National Defense Authorization Act, requiring President Obama to sanction the Central Bank of Iran in an effort to economically pressure Tehran into compliance over its nuclear program. In 2012, President Obama expanded sanctions with the Iran Threat Reduction and Syria Human Rights Act.
A few years ago, there was a turning point in U.S.-Iran relations. In June 2013, Hassan Rouhani was elected as the new President of Iran. According to the BBC, in September 2013, Rouhani and President Obama had the first phone conversation between the two positions in three decades. After the call, President Rouhani tweeted “In phone convo, President #Rouhani and President @BarackObama expressed their mutual political #will to rapidly solve the #nuclear issue.” This exchange indicated a willingness on each side to begin negotiations. In July of 2015, the P5+1, the E.U., and Iran agreed on a Joint Comprehensive Plan of Action (JCPOA) to guarantee that Iran’s nuclear program remains peaceful. On January 1, 2016, the JCPOA was implemented and the IAEA and Secretary of State John Kerry verified Iran’s compliance with the Action Plan. The U.S., in turn, lifted the nuclear related sanctions previously imposed on Iran.
What was the role of the Senate in the last few years? While President Obama was negotiating the deal and Secretary Kerry verifying Iran’s compliance with it, what was the SFRC doing? To understand the work of the SFRC, it is important to first understand the Committee’s structure and role within the Senate. The SFRC is comprised of members of both the majority and minority parties of Congress. In the current 115th Congress, the SFRC is chaired by Republican Senator Bob Corker. Including Senator Corker, there are eleven Republican members of the SFRC. Led by ranking member Senator Bob Menendez, there are currently a total of 10 democrats on the SFRC. The Committee contains several subcommittees, organized into regional and thematic groups (e.g. the subcommittee on Near East, South Asia, Central Asia, and Counterterrorism subcommittee, or the subcommittee on Western Hemisphere, Transnational Crime, Civilian Security, Democracy, Human Rights and Global Women’s Issues). The SFRC considers, debates, and reports treaties and legislation and has jurisdiction over diplomatic nominations. Their debates influence how the Senate executes its Article I powers over U.S. foreign policy. Article I enables the Senate to provide countervailing research and new insight through committee hearings or studies, ask questions and advocate alternative ideas, conduct investigations, confirm (or refuse to confirm) ambassadors and secretaries, ratify (or refuse to ratify) treaties, review, alter or reject executive branch policies, and control the budgetary allocations for various policies and programs.
Over the past several years, the Senate has implemented these powers in the case of Iran in several ways. First, the Senate has passed over two dozen resolutions regarding Iran since 2013. These resolutions cover topics ranging from Iran’s nuclear program to its human rights abuses. While this alone may imply that the Senate has been highly involved in the development of U.S. policy on Iran, Congressional resolutions do not actually wield any legal power. Rather, such resolutions are a way for Congress to express its opinions on an issue and in doing so, hope to influence the actions of the executive branch. The first of the Senate’s resolutions on Iran’s nuclear capabilities was submitted with bipartisan support and referred to the SFRC in the 113th Congress in February 2013. This resolution, S.Res. 65, supports “the full implementation of United States and international sanctions on Iran and [urges] the President to continue to strengthen enforcement of sanctions legislation.” S.Res. 65 points out that “Iran has engaged in a sustained and well-documented pattern of illicit and deceptive activities to acquire a nuclear weapons capability,” that 74 senators called on President Obama in 2012 to be prepared “to take military action against Iran if it continues its efforts to acquire a nuclear weapon,” and that Iran’s acquisition of nuclear weapons poses a “tremendous threat” to the United States. While S.Res. 65 was the first Senate resolution passed solely to address Iran’s nuclearization, they had begun to make mention of the threat even in 2012. S.Res. 574, sponsored by Senator Kirsten Gillibrand, called on the U.N. to “implement existing United Nations Security Council (UNSC) resolutions sanctioning Iran and to take additional stronger unilateral diplomatic and economic measures to prevent the Government of Iran from obtaining nuclear weapons.” Also in 2012, Senator Lindsey Graham sponsored S.Res. 380, a resolution that again references UNSC resolutions on the matter as well as expresses Senate support for U.S. foreign policy aimed at preventing Iran from acquiring nuclear weapons.
Since 2012 and 2013, Senate Resolutions on Iran have grown firmer in their language and more blatant in their calls to action on the part of the President. In January 2015, S.Res.40 of the 114th Congress affirmed the Senate’s support of the efforts of U.S. and the P5+1 to reach an agreement to prevent Iran’s acquisition of a nuclear weapon as well as the re-imposition of sanctions should Iran violate a reached agreement. In September 2015, Senator Ted Cruz sponsored S.Res.238 to express the Senate’s disagreement with the start date of their 60-calendar day period to review the JCPOA due to receiving insufficient materials at the specified start date. In December of 2015, the Senate passed a joint resolution (S.Con.Res.26) expressing the right of states and local governments to uphold economic sanctions against Iran. However, the joint resolution specifies that such regulations may “in no way interfere with the conduct of United States foreign policy.” In 2016, S.Res.414 was written to offer the Senate’s advice on U.S. action in the case that Iran violates the JCPOA. In this resolution, the Senate proposes that if Iran violates the JCPOA, then the U.S. ought to seek the reinstitution of several UNSC resolutions and Council of the European Union regulations concerning “restrictive measures” against Iran as well as re-impose nuclear-related sanctions and additional punitive sanctions. As these examples demonstrate, the SFRC utilized their power to issue resolutions to continuously make their opinions (both along and across party lines) and policy recommendations regarding Iran known over the last several years.
In terms of hard legislative power (i.e. bills or joint resolutions) Congress can “regulate commerce with foreign nations,” “declare war,” “raise and support armies,” “provide and maintain a navy,” and “make rules for the government and regulation of the land and naval forces” as dictated by Article I of the Constitution. With regard to Iran’s nuclear programs, the Senate has passed dozens of bills since 2013. In 2014, Senator Corker sponsored S.2650, a bill which legislates that the President must submit to Congress any agreement with Iran regarding its nuclear program within three days of entering into it. It also provides for “a 15-day review period by the SFRC and the House Committee on Foreign Affairs and a subsequent 15-day period in which a joint resolution of disapproval may be introduced in the House and in the Senate for expedited consideration.” The day after the introduction of S.2650, S.2667 was introduced. S.2667, the Iranian Sanctions Relief Certification Act of 2014, ensures that the President certifies to Congress before (and every 60 days thereafter) any waiver of sanctions is executed and that such a waiver will not facilitate Iran’s ability to promote terrorism, build nuclear weapons, or violate human rights. In March of 2015, Senator Barbara Boxer sponsored S.669, the Iran Congressional Oversight Act. This bill requires the President to report to Congress “at least once every 90 days” in regards to Iran’s compliance with the JCPOA. Also in 2015, Senator Corker sponsored another bill, S.615, the Iran Nuclear Agreement Review Act (INARA) of 2015, allowing Congress to review any agreement made by the P5+1 with Iran to prevent Iran’s acquisition of nuclear weapons. In 2016, the Senate passed S.3339, the JCPOA Enforcement Transparency Act, requiring the President to notify certain congressional committees within 20 days of “all past decisions made by the Joint Commission or the Technical Working Group under the JCPOA… and of each subsequent decision made by such commission, such working group, or any subsequent working group established under the JCPOA within 30 days after such decision is made.” Unlike the various resolutions passed over the last several years, these bills do more than voice the Senate’s position or offer additional research on the issue–the bills legally require that the executive branch take specific actions in order to keep Congress informed and involved in U.S. foreign policy on Iran.
The Senate has the unique authority to confirm Presidential nominees for positions within the executive branch that can impact foreign policy. The SFRC has utilized this authority in order to vet appointees’ positions on Iran. More generally, the SFRC often uses this role to facilitate a discussion on the most pressing matters of U.S. foreign policy (recently emphasizing the growing animosity between the U.S. and Russia as well as the threat of a nuclearized North Korea or Iran) in the presence of various government officials, scholars, and the media. For example, in Secretary Tillerson’s hearing, the importance of maintaining sanctions and preventing Iran’s nuclearization was discussed at length. Senator Chris Coons asked Secretary Tillerson how he believed the U.S. could strengthen its hand against Iran as well as how the U.S. would sustain “the current level of visibility we have into Iran’s nuclear program and how would that make us safer or stronger” if the U.S. were to withdraw from the agreement under the new administration. Senator Coons again referenced Iran by discussing a section of the JCPOA later in the hearing. While Secretary Tillerson confirmed his desire to do a “full review” of the JCPOA, he agreed with the SFRC about the end goal of ensuring that any use of nuclear weapons in Iran is strictly peaceful. Likewise, in the confirmation hearing of UN Ambassador Nikki Haley, Senator Corker took the opportunity to express his view that Iran is violating the JCPOA. In the hearing, Senator Marco Rubio pointed out that the Obama administration “attempted to use the United Nations … to go around Congress on the Joint Comprehensive Plan of Action and attempt, as they claim, to create a binding, legal obligation under what they claim to be international law related to a flawed Iran nuclear deal.” Senator Rubio followed this by asking Ambassador Haley her view on this “use of the Security Council… to go around the Senate’s constitutional role to provide advice and consent on treaties.” Haley’s response assured Senator Rubio of her dedication to including Congress, and the Senate in particular, in any joint action with the UN. Senator Tim Kaine asked whether the Ambassador supported backing out of the JCPOA to which she, like Secretary Tillerson, said she supported a review of the details of and Iran’s compliance with the agreement. Senator James Risch later used the hearing to voice his opposition to Senator Kaine’s support of the JCPOA, arguing it is not tough enough on Iran. Through these comments and questions, the SFRC was able to turn the hearing itself to a place of debate on U.S. foreign policy toward Iran.
The SFRC has also used other hearings, official statements, and the press as platforms for addressing the JCPOA. In hearings, members of the SFRC have questioned both the Obama and Trump administrations with regard to the JCPOA. At a full committee hearing in December of 2014, the SFRC listened to the testimonies of the president of the Institute for Science and International Security, a Harvard Research Director, and a Hudson Institute Senior Fellow. Senator Humphrey also pointed out in his Foreign Affairs piece that “the body of fact and insight developed by a committee hearing or study can be drawn upon for informed criticism or for advocating new policies.” This particular hearing examined the Joint Plan of Action (JPOA) and various options and limitations for a final comprehensive deal between the P5+1 and Iran. The hearing was also used to discuss the regional impact and concerns. The testimony of Michael Doran, the Senior Fellow from the Hudson Institute, was particularly critical of the Obama Administration’s bias toward and overly optimistic (in his opinion) presentation of its relationship with Iran. Currently, the Trump administration continues to stall action on the JCPOA, agreeing in January to again waive key sanctions lifted by the U.S. as part of the JCPOA. In September 2015, SFRC Ranking member Senator Ben Cardin penned an op-ed for the Washington Post criticizing the JCPOA and ultimately concluding with his decision to vote against it. However, having eventually come to support the final version of the deal, in October 2017, Senator Cardin released a statement stressing the importance of the JCPOA and urging President Trump to uphold the deal. Conversely, but similar to the positions of Secretary Tillerson and Ambassador Haley, many Republican members of the SFRC continues to support a review of the deal. A week after Senator Cardin’s statement, Senator Corker released a statement explaining the efforts of the SFRC, in conjunction with the State Department and the National Security Council, to “develop a legislative strategy to address bipartisan concerns about the JCPOA without violating U.S. commitments.” As these examples illustrate, Senators can utilize both their official platforms as well as the public platform created by their celebrity in order to express an opinion, provide information, or sway opposition. Conversely, behind closed doors, the staff of the SFRC can use their positions to express Senate opinions, exchange information, or sway opinions in individual meetings with foreign officials, other government agencies, international organizations, or private companies.
The Senate is the sole actor capable of ratifying treaties. However, in the case of the JCPOA, dissent within the Senate about the deal’s terms turned a two-thirds ratification of the agreement into an insurmountable hurdle. As such, the JCPOA is not a treaty, but was actually negotiated as a political agreement by President Obama. The Article II Constitutional limitations on the President to pass a treaty do not completely hold at the international level. As Iulia Padeanu argues in the Yale Journal of International Law, the JCPOA operates the same as a treaty would as per the rules of the Vienna Convention on Diplomatic Relations. Moreover, as explained by NYU professor David Golove, the Senate’s passage of the Iran Nuclear Agreement Review Act of 2015 (INARA) framed President Obama’s decision to pass the JCPOA as an exercise of joint legislative and executive power. While their passage of INARA limited the Senate’s ability to criticize Obama’s exercise of executive power, it allowed them to have some influence in the matter. Still, this case offers an example of the limits of the Senate’s foreign policy influence.
Finally, the Senate can impose its budgetary power to influence U.S. foreign policy. Congress’ budgetary power is at times perhaps its greatest foreign policy tool. Former Secretary of State Dean Acheson once correctly noted that in “one aspect of foreign affairs Congress is all-powerful. This is in the establishing and maintaining of those fundamental policies, with their supporting programs of action, which require legal authority, men and money.” In the case of the JCPOA, however, Congress’ budgetary power has not come into play. According to the New York Times, $1.7 billion was given to Iran by the U.S. following the deal, but the money was only indirectly linked to the JCPOA. The payment was for “a decades-long dispute” over Iranian payments to the U.S. for military goods that were never delivered following the 1979 Iranian revolution. Consequently, the SFRC has had to fully enact its other legislative powers to compensate for its inability to exercise budgetary influence. The SFRC has used its legislative power to push for a greater influence on the waiving of sanctions on Iran. The President has the power to lift sanctions he himself imposed and can suspend congressionally imposed sanctions. However, Congress must approve any permanent waiver of congressionally enacted sanctions. The lengthy timeline of such an approval process is another reason Congress decided to pass INARA. Again, as reported by the New York Times, there was enough bipartisan support for INARA in 2015 that Senator Corker was able to champion it, feeling hopeful that he could muster a congressional override of Obama’s likely veto of the bill. Moving forward, should President Trump decide that the JCPOA is not in the best interest of the U.S., the 60 day review period legislated by INARA will be triggered. Georgetown professor Colin Kahl speculated in a Foreign Policy Executive Roundtable podcast that the administration’s rationale behind decertifying the deal is that it will create leverage to renegotiate the terms of the deal. However, as Kahl points out, the administration has not demonstrated a real ability to control Congress and once the power is given over to Congress, the easiest move is to re-impose sanctions. A reimposition of sanctions only requires 50 votes while any other action on Iran would require 60. Again, Congress’ budgetary power has not afforded them hard power in the case of Iran, but they have been able to exercise some influence legislatively with regard to sanctions.
Congress is principally regarded as an entity that impacts the domestic landscape. While the Senate’s ability to deal directly with international issues is limited, it can use the powers it is allocated by the Constitution in creative ways to influence some parts of U.S. foreign policy. As is evident in the case of U.S. policy on Iran, the Senate, and the SFRC in particular, has used each of its different powers as well as its unofficial platforms to impact the shaping of the JCPOA. While such actions can leave the executive and legislative branches in gridlock, as was nearly the case in 2015 when President Obama struggled to gain support for the JCPOA, it can also provide a check on plenary executive power abroad. In an increasingly globalized and intertwined world, its important that the SFRC, and the Senate more broadly, continue to exercise its powers to shape U.S. foreign policy. Global challenges–climate change, migration and refugee flows, terrorism, and new nuclear powers–affect Americans regardless of whether the U.S. prefers to be involved with these challenges or their accompanying actors. As representatives of those Americans, Senators have to wield every source of their foreign policy powers to address these challenges accordingly.