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.

Cross-posted at PrawfsBlawg.

This Post Has 4 Comments

  1. Nick Zales

    Most of these trips are simply free vacations for members of Congress. They call them junkets. It is ironic that they would travel to foreign lands rather than visit their districts and find out what the constituents needs are. It would be interesting to see if any actual diplomacy occurs on these trips and if any actual legislation results. It is no coincidence that most junkets are to beautiful and desirable vacation locations.

  2. Ryan Scoville

    Thanks for the comment, Nick. I agree that some portion of the trips have a junket-type aspect to them, but I think it’s a mistake to conclude that all or even most of the trips are junkets. I’ll explain why in my next post.

  3. Nick Zales

    I look forward to it Ryan! It would be nice to hear that all these fact-finding trips are more than paid vacations for members of Congress!

  4. Tom Mann

    Since the Constitution specifies that the President is solely responsible for foreign affairs, I’ve always thought that congressional members had to get permission from the State Dept. to travel to foreign countries to discuss affairs of State. Is this true or not?

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