Symposium | Rebalancing National Security

Arms Sales: The Case for Affirmative Congressional Approval

By Lora Lumpe

Tagged Arms Salesnational security

In October 1981, the House of Representatives voted overwhelmingly to block an arms sale to Saudi Arabia that included AWACS (Airborne Warning and Control System) radar planes, fuel tanks for Saudi F-15 aircraft, more than 1,000 air-to-air missiles, and up to eight tanker-refueling aircraft. Opposition was due to concerns about the impact this technology could have on Israel’s security.

Under the Arms Export Control Act of 1976, Congress had the power to block an arms sale if both chambers passed resolutions of disapproval within 30 days. The fate of the sale would be decided in the Senate. Two weeks later, the Senate narrowly failed to pass a resolution of disapproval (by a 48-52 vote), clearing the way for the Reagan Administration to sell the weapons.

That was the closest that Congress had ever come to blocking an arms sale, and it remained so until nearly 40 years later, when both chambers passed a joint resolution to prohibit another arms sale to Saudi Arabia (and the United Arab Emirates) in July 2019. The opposition this time was due to the highly publicized use of U.S.-supplied weapons by both countries in their then-four-year-long war in neighboring Yemen.

A Supreme Court decision in 1983 had resulted in a change to the arms export law that required that both chambers pass a joint resolution and send it to the President for enactment. This change raised the bar for successful action by Congress significantly, as the President would likely veto any such resolution. Predictably, President Trump did so, and the Senate could not muster the two-thirds majority needed to override his veto. The sale of more bombs and missiles was greenlit, continuing to implicate the United States in the Saudi/UAE war on Yemen and the terrible humanitarian toll it was taking.

International arms sales represent an enduring and prominent feature of U.S. foreign policy. While proponents generally argue that sales are economically beneficial and necessary to buy the military access to staging grounds and potential partners for operations around the world, a good deal of public money underwrites these deals, and they often drive U.S. foreign policy in costly ways. Researchers at the Cato Institute noted in 2021 that “[o]ver the past 20 years, the White House has sold weapons worth more than $888 billion to 167 countries, including countries mired in conflict, countries whose governments routinely turn weapons on their own people, and countries in which corruption makes it impossible to know where American weapons will wind up being used, or by whom.”

William Hartung of the Quincy Institute found that in roughly two-thirds of armed conflicts between 2017 and 2021—34 out of 46—the United States was arming one or both sides. In some cases, U.S. arms sales to combatants are modest, while in others they play a major role in fueling and sustaining the conflict. In the case of U.S. arms supplied to Saudi Arabia and the UAE, the weapons directly enabled the war that started in 2015 and eventually led a majority in Congress to conclude that through U.S. refueling, intelligence sharing, and resupply of munitions and spare parts, the United States had become an active party in the war without explicit congressional authorization.

Despite the failure to cut off the weapons flow in 2019, the effort by Congress to assert control over the Trump Administration in this realm of U.S. foreign policy was refreshing. It was preceded by four decades in which Congress voted on only a handful of arms sales, and it harkened back to an earlier era of a more sentient and assertive Congress, before most senators and representatives grew apathetic about the hundreds of billions of dollars’ worth of weapons sales to countries engaged in repression, aggression, or war; before they stopped even trying to block dangerous and ill-advised weapons deals.

Shift the Paradigm, From Blocking to Approving

The coalition of business, humanitarian, Yemeni diaspora, and other interests that came together in 2019 to press Congress to block the weapons sales to Saudi Arabia and the UAE was broad and deeply committed. The loss by this coalition and its allies on Capitol Hill showed those of us concerned about the impacts of American weapons sales that a fundamental reform is needed if Congress is ever going to be able to challenge the executive branch’s prerogatives over such deals.

In looking at reform ideas, we found a model bill and an advocate from a most welcome quarter. As far back as 1984, then-Senator Joe Biden was focused on the same problem that confronted Congress in 2019—namely, that Congress needed to reform the Arms Export Control Act so that the legislature could influence the executive branch’s actions in this area. His solution was to modify the law to require Congress to take an affirmative vote to allow major arms sales to go ahead, rather than requiring Congress to take action to stop them, as is currently the case.

With a strong tip of the hat to then-Senator Biden’s prior legislation, a coalition is now putting forward a reform package—known in the Senate as the National Security Powers Act (NSPA) and in the House as the National Security Reforms and Accountability Act (NSRAA)—that seeks to flip the script on arms sales by doing just what Senator Biden recommended: modifying the Arms Export Control Act so that Congress must approve sales of offensive arms to countries that are not treaty allies before a deal can move forward. In this modern version of Biden’s proposal, foreign arms sales of the types of weapons most likely to be used in war, above a particular dollar threshold, must be affirmatively approved by Congress to proceed. (The presumption of approval would still remain intact for NATO allies and close defense partners.) With this change, the de facto requirement that Congress must muster a veto-proof majority to halt a controversial arms sale would end. Under this formulation, when more than 50 senators and half of the House are opposed to a sale going forward, they simply vote “No.” Their simple majority would result in no bill going forward. There would be nothing for the President to veto. And no arms sale.

Scott Paul, associate director at the humanitarian group Oxfam, noted that with such a law in place, “arms sales to Saudi Arabia and the United Arab Emirates—which have used weapons purchased from the U.S. to commit terrible violations of international law in Yemen—could have been stopped, saving lives and pushing leaders for peace.”

Predictable Pushback

Specifically, the proposal would require (as is currently done) that the executive branch  formally notify Congress of any offers for weapons sales brokered by the U.S. government and any approvals of export licenses to weapons makers or dealers for sales of certain categories and quantities of weapons to foreign countries or international organizations. This part, though, is new: None of those weapons sales or export license approvals could go forward unless Congress authorized them. The proposal includes an exception for NATO members, Australia, Japan, South Korea, Israel, New Zealand, and Taiwan. And it applies to the following categories of weapons: 1) firearms and ammunition at $1 million or more; 2) air to ground munitions at $14 million or more; 3) tanks, armored vehicles, and related munitions at $14 million or more; 4) fixed and rotary aircraft, both manned and unmanned—such as planes, helicopters, and drones—at $14 million or more; and 5) services or training to security services at $14 million or more.

Routine votes to approve arms sales would give Congress—and, by extension, civil society and the media—a much stronger voice in the arms sales process. The arms makers and their allies in Congress understand this, and they have worked and will work to block this reform.

Arguments against the reform basically line up along two poles: It is unnecessary, and it is unwieldy. Opponents say that although Congress has never successfully blocked a proposed arms sale via a joint resolution of disapproval, it has persuaded the executive branch to refrain from formally proposing certain sales through an informal “pre-consultation” process. However, when an administration is hellbent on making an arms sale over the strong objection of Congress—as were the Reagan Administration in 1981 and the Trump Administration in 2019—it does so.

In addition, some critics point out that Congress can use the regular legislative process to prohibit or modify any proposed weapons sale at any time up until delivery of a weapon—beyond the 30-day deadline set out in the Arms Export Control Act. But the optics of passing a law to countermand an arms sales notification that has already sailed through Congress unopposed are bad, and the same herculean requirement for a veto-proof margin remains.

Moreover, the foreign affairs committee chairs and ranking minority members in both chambers, who play a decisive role in advancing resolutions to block arms sales, have recently used the 30-day clock as a firm limit for action. When Senator Rand Paul—one of the few members of Congress who routinely tries to stop bad arms deals—demanded a vote to block the sale of C-130 cargo transport planes to Egypt in March 2022, then-Senate Foreign Relations Chair Robert Menendez and ranking Republican Jim Risch complained that Paul’s resolution fell outside the 30-day statutory window for rejecting the sale. The Senate’s parliamentarian ruled that the measure could still come to the floor, but apparently wanting to limit Congress’s attention to arms sales, the two argued that the ruling would set a negative precedent for future actions on arms sales. (Menendez would later be indicted for multiple crimes related to his work on behalf of the Egyptian government.)

Other critics claim that—given the magnitude of U.S. weapons exports—a requirement to vote affirmatively on all of the designated sales would be too cumbersome and would tie up too much floor time in Congress. But the numbers tell a different story. The NSPA/NSRAA reforms would require congressional approval for foreign military sales and direct commercial sales of only those weapons considered most dangerous and destabilizing. Based on how many proposed arms sale notifications previous administrations have sent to Congress, the deals covered by this legislation would require votes on approximately 60 cases per year, many of which could be packaged together to reduce the number of votes.

Only under the most extraordinary circumstances would Congress fail to support an arms sale. Given the usual intense lobbying by arms makers, members of Congress will almost certainly favor arms sales, even if these reforms are implemented. But the idea of this kind of reform is to ensure that on those rare occasions where there is strong and broad-based public opposition to sending weapons to a particular recipient, Congress can act in the public interest and stop the executive branch from doing so.

Just a year after the Saudi/UAE bomb vote, in November 2020, the Trump Administration notified Congress of a massive potential $23 billion sale of F-35 fighter jets, Reaper drones, bombs, and missiles to the UAE. The sale was controversial, both for its size and for the fact that President Trump was months away from leaving office. The Senate voted on a resolution to block the drone sales. Only two Senate Democrats—Kyrsten Sinema and Mark Kelly—voted against the resolution, resulting in a 46-50 loss for the effort to block the sale. The state they represent, Arizona, hosts the missile division of the military contractor Raytheon, which manufactures sensors for the Reaper. Of course, even if the Senate had passed the resolution and the House had done the same, President Trump would have again vetoed their effort.

Toward a More Democratic Foreign Policy

The reform outlined here would meaningfully reassert the legislature’s constitutional oversight role and promote a more democratic approach to national security.

In September 1986, then‐​Senator Joe Biden declared that “the major foreign policy business of the United States must be conducted on the basis of far stronger support from the Congress. If a President’s tools of leadership and persuasion cannot prevail, there is sound reason for reconsideration of the policy.” Congress should now recognize this principle and reassert its authority, particularly given the United States’s dominance of the global arms market.

The U.S. arms industry often identifies itself as “the arsenal of democracy,” claiming that weapons sales are good for democracy in America and globally. If, however, the industry is truly focused on “defending democracy,” its firms would champion the reform proposed here and the open and democratic debate that it would foster in support of a stronger and more widely supported U.S. foreign policy.

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Lora Lumpe is the CEO of the Quincy Institute.

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