Time to flip the script on congressional arms sales powers

On March 3, the House Rules Committee held a rare bipartisan hearing on the erosion of congressional checks and balances on the executive branch’s ability to involve the country in war. The hearing was a welcome step in addressing executive overreach on national security and war powers, an issue that has garnered the concern of NGOs across the political spectrum. As Congress rightly seeks ways to re-establish sensible checks on the ability of a president to involve the country’s armed forces in hostilities, it should not overlook the need for proactive oversight of the kinds of arms sales that tend to directly implicate the United States in foreign wars. 

From Saudi Arabia to Ukraine to Nigeria, American involvement in conflict often has taken the form of arms sales. For example, in 2016, the U.S. delivered major military items to over three-quarters of countries identified as party to an armed conflict, and nearly 80 percent of countries in which armed conflict took place. These sales have occurred in spite of, or even facilitated, high levels of civilian casualties and gross violations of human rights. And yet, Congress has never successfully blocked an arms sale. Existing procedures have simply proven too weak to do so.

Today, blocking an arms sale under the Arms Export Control Act (AECA) requires a joint resolution of disapproval, which must be passed by a two-thirds majority in both chambers to overcome a likely presidential veto. House procedures also present a challenge: Under Senate rules, any senator favoring a disapproval resolution can move to discharge the resolution from the Foreign Relations Committee if the committee fails to report back to the Senate within 10 calendar days. The House, however, has no such rule, so representatives are not guaranteed a vote concerning arms sales.

Reestablishing congressional oversight will require adjusting AECA procedures to guarantee Congress an opportunity to block problematic arms sales without requiring a two-thirds majority. This is best achieved by “flipping the script” through an affirmative vote, a concept proposed by then-Sen. Joe Biden in 1986. With an affirmative vote, or a joint resolution of approval, a sale would not go through until approved by both houses and signed by the president. Had such procedures been in place in 2019, Congress could have acted on its bipartisan consensus to block bomb sales to Saudi Arabia.  

Exercising oversight over arms sales with an affirmative vote is well within congressional authorities under the Constitution. When combined with the necessary and proper clause, congressional power to sell or regulate the sale of arms derives from a number of congressional powers, such as the power to declare war (implying the power to prepare for war by selling arms to allies); the power to regulate commerce with foreign nations; the power to raise armies and provide and maintain a navy (perhaps implying arming foreign forces to support U.S. forces); the spending power to provide for the “common defense and general welfare” of the United States; and general powers over foreign affairs. 

On the other hand, selling arms is not specifically enumerated in the constitutional powers of the president. Congress delegated authority to the president via the AECA of 1976, and could just as easily revise that process.

An affirmative vote need not overburden Congress. Clearly, Congress delegated the regulation of arms sales to the executive branch for a reason, since it cannot and should not be involved in each of the thousands of annual arms transfers overseen by the State Department that neither have a direct bearing on America’s role in a conflict nor present any direct risk of facilitating human rights abuses. Congress does not need to be involved in all of the many sales involving close U.S. allies such as NATO, Japan and South Korea, where the risks are perhaps less acute. 

Instead, new procedures could filter arms sales based on type and volume to limit voting to those cases most likely to meaningfully implicate the U.S. in conflict in the spirit of congressional oversight of war powers. For example, a filter requiring a vote only for the categories and volume of sales currently requiring congressional notification under existing procedures, and excluding sales to NATO and other key allies such as South Korea, Japan and Australia — countries exempt from certain procedures under the AECA — would result in approximately 60 annual votes. Some sales could be packaged together for approval, and many likely would move forward without opposition. Arms sales not meeting these criteria could be blocked under existing procedures if Congress so desired.

There is little evidence to suggest that greater congressional oversight over arms sales would harm U.S. economic or strategic interests. The U.S. market share is unparalleled in the global arms industry, most U.S. arms sales currently go to U.S. allies that would be exempt from an affirmative vote under the filters proposed above, and the arms industry actually contributes very little to the U.S. economy as measured in jobs. Members of Congress concerned about defense manufacturers in their districts can take comfort in the fact that most companies do not derive their commercial viability from the export of weapons to other countries, let alone those that would be subject to a simple, affirmative vote in Congress. 

Moreover, American voters don’t believe that arms exports make them safer. According to a 2019 poll by the Chicago Council on Global Affairs, 70 percent of Americans oppose arms sales to other nations and see the transactions as a threat to national security. This view is bipartisan: 75 percent of Democrats, 70 percent of independents, and 62 percent of Republicans expressed a lack of safety associated with arms sales.

In too many countries and conflicts, arms sales have become the face of U.S. foreign policy and a key factor in prolonging endless war without congressional authorization. This month’s hearing showed that Congress has the opportunity to take back its power and make the world a safer place — for Americans, for U.S. allies, and for countless civilians around the world.

Dan Mahanty is director of the U.S. program for the Center for Civilians in Conflict (CIVIC). He spent 16 years at the Department of State, where he was director of the Office of Security and Human Rights. He is an adjunct professor at Kansas University Center for Global and International Studies and a non-resident senior associate at the Center for Strategic and International Studies.

 Annie Shiel is the protection innovation fellow with CIVIC, the research program manager in civilian protection at Stanford University, and a national security fellow with the Truman National Security Project. She spent three years at the State Department as a policy advisor in the Office of Security and Human Rights.