Signaling Behavior, Congressional-Executive Agreements, and the SALT I Interim Agreement

Abstract

This Article, using a law and behavioral economics perspective, carves out a exception to the general rule that Presidents must ratify national security accords as treaties and international trade accords as congressional-executive agreements. Under this signaling exception, the President can submit national security accords as congressional-executive agreements when 1) the accord is temporary, and 2) the accord signals that the United States has engaged in learning behavior (as described in the political science literature) about the nature of international affairs. Signaling behavior is particularly common in temporary agreements. The interim nature of such agreements allows the United States to signal incremental trust in its counterparties while hedging its risk. Using the SALT I accords as a case study, this Article locates the President's power to signal in the well-accepted sole communication power, which, under the signaling exception, trumps the Senate's right to advise and consent when the accord in question contains a disproportionate signaling component vis-a-vis its substantive, bargained-for component. Presidents could thus send signals in the form of sole executive agreements or congressional-executive agreements. The Constitution requires the latter vehicle because signals display network effects; they become more credible to foreign powers, and hence more valuable, with congressional support.