Every Day Is Extra

by John Kerry

  Not surprisingly, Jim DeMint was hell-bent on defeating anything with the word “treaty” attached to it. Indeed, he was out to paint treaties of any stripe as an assault on American sovereignty, something that had been a rallying cry when DeMint’s endorsed primary challenger to Utah Republican Robert Bennett shocked the country in early 2010 with a convention victory against a conservative who had been an icon of Utah’s Mormon political establishment.

  We had a steeper hill to climb than logic would have predicted. The right-wing strategy was clear: those in DeMint’s camp were opposed to all treaties and dead set against anything that had Obama’s name associated with it—Obama, Obama, Obama!

  Above all else, we had to take the rhetoric out of the debate if we were to have a chance to win, and in particular I needed to help change the dialogue about the nuclear treaty. It couldn’t be about the president, otherwise we would never win enough Republicans to our side. I worked very closely with Secretary Clinton on a validator strategy: to put front and center as many trusted Republican names endorsing the treaty as possible. Hillary was terrific, really digging in to help. She called on her predecessors at State and helped draw out each Republican to weigh in on a treaty some assumed would be an easy lay-up. It made a difference to have former Republican secretaries of state Kissinger, Rice, Baker, Shultz and Powell publicly counterbalancing Palin and Romney, but I wondered why that was even a close fight. On the one side were people who had advised Republican commanders in chief from Nixon to Reagan and both Bushes, and yet Sarah Palin’s voice was the one ringing the clearest (and loudest) in the conservative echo chamber.

  Still, I knew guiding this treaty over the line was going to take time and tenacity. I made it a point to meet with Republicans even though they might never be in play as votes for the treaty, because any approach to their party could demonstrate to their caucus that our side was taking the process seriously.

  If they asked for more time to review the treaty, I tried to give it to them, even if they gave me nothing in return. If they asked for another hearing or to include a particular witness, I tried to accommodate them, again because it would demonstrate good faith in the process.

  The whole effort was tedious, but I wanted at the end of the trail to be sure that no one could credibly claim a question hadn’t been vetted or they hadn’t been given time to consider their position. After months of both open and classified hearings and hundreds of questions for the record, it was time to vote in committee.

  Dick Lugar was with us from the start, but the Republican caucus had moved far right and almost marginalized him in a way that pained me to watch. Senator Bob Corker of Tennessee was the key vote for us. If we won over Corker, then we had a conservative Republican on board, which might give us a shot at another conservative, Johnny Isakson of Georgia, a kind, gentle man who taught Sunday school and had been in both the House and Senate of the Georgia legislature before he’d come to Washington.

  I got along well with Bob Corker when we were colleagues on the committee, in part because Bob was eager to make a contribution and, especially in 2009 and 2010, he wasn’t afraid of being in the fray. Having Bob interested in the treaty was worth an investment of time, even if it delayed getting the treaty to the Senate floor.

  Bob wanted the White House to agree on a commitment to spend billions on nuclear modernization, which was important to Tennessee, where the Oak Ridge National Laboratory was based. I suspect that he figured it would help him demonstrate that he had persuaded the administration to move on an issue. I thought Bob was critical to the vote so I backed him up. But Bob and Johnny made a difficult ask of me as well. They suggested that Republicans felt rushed and opposed having the vote in committee in the summer before they headed home to campaign. They said I could have a more successful committee vote if I waited until after recess.

  Frankly, I thought timing could be argued either way. If we voted in July, Republican senators might get beat up at home in August during recess. On the other hand, postponing didn’t necessarily avoid that outcome—and might make them less likely to vote yes in September. I came down on the side of giving Bob the benefit of the doubt and, in my mind, building up a balance in the bank of political goodwill with a key Republican ally. I postponed the committee vote. The White House wasn’t so sure I was making the right decision.

  In September, when we held the vote, the gamble paid off. Our committee approved the treaty 14–4, with three Republican supporters. The Senate was headed into recess before the November elections, and we had to finish the job when we returned in November. A committee staffer popped a bottle of champagne in the conference room, wishful thinking or youthful optimism.

  That vote turned out to be only a momentary victory. When Republicans crushed Democrats in the midterm elections, Sarah Palin and the hard right wing of the party piled on. Their message was clear and simple: no lame-duck votes on treaties.

  Never mind that we had taken the entirety of the 111th Congress to do the deliberation the right way under immense public scrutiny—we had held twenty hearings. Never mind that the Joint Chiefs had briefed the Senate. Never mind that we had not yet brought the treaty up for a floor vote precisely because senators had asked for extra time to do their homework.

  Now, Palin, the neocon former UN ambassador John Bolton, the conservative machine and the fringe were arguing that dealing with a treaty like this one was the job of a brand-new Congress, including freshmen who had never even once been briefed on the details.

  I could envision Groundhog Day if we caved to their requests. In January, we’d be right where we had started, with senators demanding a new year and a half of briefings and hearings to get up to speed. I dug in and said no. Republicans who had been leaning toward voting yes started coming up to me and saying, “I can’t be with you because of lame duck.” Alternatively, I also got a lot of “John, I hear Obama’s going to force us to repeal ‘don’t ask, don’t tell’ in lame duck, so I can’t be for New START.” The non sequiturs piled up, one thrown on top of another. I wondered what possible connection there was between voting on letting gay people serve openly in the military and whether you could vote that same month to reduce the number of nuclear weapons pointed at the United States. The excuses were astounding.

  I remembered the lesson I’d learned in law school: if you don’t have the law on your side, argue the facts; if you don’t have the facts on your side, argue the law; if you don’t have either, just argue. In this case, with the merits pushed to the side, Republicans were arguing and inventing all kinds of process reasons for why they couldn’t do something now even after they’d asked me for additional time so they could do it now.

  To say the least, this was all very frustrating. I sat down in the Democratic cloakroom with my team and laid out the options. We could go forward and lose, which would mean the first Senate defeat of a treaty since the Comprehensive Nuclear Test-Ban Treaty went down in 1999 (itself the first time a security-related treaty fell since the Treaty of Versailles). That had been an ugly moment that had cost the United States globally. For years afterward as I traveled, I’d heard complaints from foreign ministers. Other countries began to wonder then whether the United States could be a dependable partner at the negotiating table if the Senate could just quash the work of multiple administrations. I didn’t want to repeat that kind of sorry, sad episode.

  At the same time, I didn’t want to lose the investment of so many months of work and careful analysis to bring the treaty this far. It deserved a vote. Dick Lugar and his team were uncertain whether it was a good idea to go forward. Dick’s argument was that a poor vote would “damage” the treaty irreparably. I didn’t disagree about that risk, but I also asked whether the treaty wasn’t damaged already if after a year and a half of effort we couldn’t even bring it up for a vote. How feckless is that?

  A lot hung in the balance. What worried me was the underlying political dynamic: thoughtful, serious members of the Senate Republican caucus were
all running scared of the Tea Party. They were desperate to duck “tough votes.” Others couldn’t see past any opportunity to stick their finger in President Obama’s eye. It wasn’t exactly an atmosphere that summoned statesmanship.

  In the end, it was the math that I found most persuasive—cold, hard numbers. We had fifty-nine Democratic votes for the treaty, and I knew I could count on Lugar. Corker was committed; the two moderate Republicans from Maine were going to vote yes. I could see my way clearly to about sixty-five of the sixty-seven votes we needed for victory. I thought, Waiting on the next Congress means never. It wasn’t just that we’d have to start fresh in a new Congress, but that the Democratic margin had shrunk by seven in the Senate. The year 2011 would mark the start of an election cycle where Democrats would have some tough seats to defend, and every time that happens, the demand from those senators to the Senate leadership is for plenty of time at home to campaign and fund-raise and for plenty of bread-and-butter issues on the Senate floor, especially those that matter most to their constituents.

  In my own caucus there would be little appetite for legislating on foreign policy unless it could be done quickly, easily and with certain victory. On the other side, in addition to the promise of more Tea Party primaries to scare the hell out of Republican incumbents, we would be into a presidential election cycle. If 2010 had been a year when many wanted to deny a Democratic president victories, heading into 2012 that sentiment would be nearly unanimous. I was not optimistic about our odds in the next Congress. In fact, I hated them.

  I called Pete Rouse, President Obama’s right-hand man, who had been Tom Daschle’s chief of staff and was as smart a Senate whisperer as anyone in Washington. There were risks here for the president too—a loss in the lame-duck session on a critical treaty a month after what the president himself had called a “shellacking” in the midterm elections wouldn’t just be a bad story, it could hurt him in foreign policy making going forward. Pete was famously steady. Like Obama, he never gets too high or too low. He didn’t like our chances now, but he liked them better now than in January. Secretary Clinton agreed and reiterated her willingness to do anything required to win. She was indefatigable. It was fourth down, and we decided to go for it.

  If Jim DeMint represented the bomb-throwing agitator extraordinaire in opposition to all treaties, then Senator Jon Kyl of Arizona was both his twin and his opposite. Jon was an insider’s insider, the son of a congressman, and was the Republican whip. He was competitive, smart and ideological about issues like this one. He did his homework on the minutiae of New START, which made him a very agile debater. We had often squared off against each other on television. He was a wily opponent, respected and feared even inside his caucus. Just as it was on our side, where people like Bob Byrd and Harry Reid rode the whip position all the way to majority leader, Jon had enormous influence in his caucus. He took the position that he opposed the treaty but wished the administration was willing to wait and work with him to answer his questions and address his concerns. The White House and my staff saw that as a cynical ploy. Surely any legitimate concerns about this treaty should have been taken care of in the course of the past year.

  My reaction was that it didn’t matter what we thought. Because Jon was important in his caucus, how we played our hand in response to him would matter. We had to demonstrate that we were exhausting the process of trying to get Jon to yes, even if it was impossible. At least then other Republicans would see we were operating in good faith and they would feel permitted to vote their conscience. I started going over to the Republican cloakroom to meet with Jon one-on-one. The bonus of meeting that way was that every one of our Republican colleagues saw us talking respectfully.

  After some time, it became clear that Jon Kyl’s strategy was to play for time and move the goalposts with no intention of ever supporting the treaty. I hate to admit this, but it was a compliment to Jon’s mastery of the Senate and his knowledge of the secret Bob Byrd and Ted Kennedy had shared with me in 1985: time matters. Jon was very cagily using the clock to achieve his objective. Nothing can make senators want to get out of Washington more than the clarion call of the Christmas holiday break. He knew that in a December when senators were already tired from a busy legislative session, when many had just gone through a dispiriting election, when there was a lot already on the agenda, he could just stall the bill into the next Congress.

  I think it is safe to say that Jon figured we Democrats might fold when his side made it clear that they were going to use the entire ten days of floor time that had been allotted under the rules to consider New START. If they were going to try to wear us out, I’d accommodate them. I sat at my desk on the Senate floor for many of those days while little happened. A few times, when the Senate looked especially like a ghost town, I would turn to the cameras and say, “I know some of our colleagues have said repeatedly that they have questions about this treaty, and I want to answer them. I’d urge them to come on down.” A few hours later, I’d say again, “Colleagues, we are here, we will stay here, we are ready to debate anytime.” Then we would repeat the arguments over and over. Occasionally, a Republican would come down and read a short statement, and we’d have a brief exchange. Then he would leave and I’d spend the next hour responding to the arguments he and many others made.

  If we lost, it would have meant that I had misread the Senate tea leaves. But at that point, I was willing to take the risk. The alternative was just walking away from the certain death of the treaty. I heartily endorsed John McCain’s favorite expression, “a fight not joined is a fight not enjoyed.”

  It was time to vote.

  All fifty-nine Democrats voted yes—including Oregon’s Ron Wyden, who got out of his sickbed just a few days after prostate cancer surgery to register his vote. I knew those early days weren’t pleasant, particularly when just walking the steps to the Senate floor is painful. But that’s Ron Wyden, a stand-up guy. I watched the tally in the well of the Senate like a scoreboard, counting down the final minutes of a tight game: Corker, Lugar, Collins, Snowe. . . .

  Scott Brown, my new colleague from Massachusetts whose surprise election had signaled the rise of the Tea Party, voted in step with Massachusetts. We were up to sixty-four votes and needed three more.

  That’s when the dam broke. Republicans whom I had met with for hours and hours came to the floor of the Senate and voted aye, including a former governor of Nebraska, Mike Johanns, who had come to the Senate in 2009. Former governors seemed to have less tolerance for the antics of the ideologues because they knew they could never have run a state that way. Neither Judd Gregg from New Hampshire nor George Voinovich of Ohio (both were retiring that year) was going to go out playing a political game. Lamar Alexander, whom I’d spent hours with going through the treaty, was a serious person who had been a successful governor. He was going to vote his conscience and at the same time stick by Bob Corker, his colleague from Tennessee.

  We hit the magic number, and then something wonderful happened. Robert Bennett and Lisa Murkowski, both of whom had lost Tea Party primaries to Jim DeMint’s ideologues, put up their thumbs and voted aye, but it was a different digit they were really signaling with to DeMint and company.

  Three days before Christmas, and we’d won.

  On the way home, I talked with Vice President Biden. It had been an intense first year and a half for the administration, and on the personal front, Joe’s son Beau, Delaware’s attorney general, had come home safely from a yearlong deployment in Iraq and made the decision not to run for the seat Joe had held for thirty-seven years. Joe and I had shared a lot of history in the Senate, and at least on this night the outcome suggested that there was a little bit left in the tank for the institution we revered.

  However, we both saw the storm clouds on the horizon. Treaties used to pass 99–0. If 71 was the new 99, then what would be the fate of bills that used to pass with 51 votes? Gridlock was predestined.

  I thought about what the Tea Party and the hyper
partisanship were doing to the institution. Of those twelve Republican senators who supported the treaty, three were retiring either by choice, from fatigue or in defeat. Senator Murkowski would be back, but to earn her next term, she had to overcome a primary defeat and win as a write-in candidate. Scott Brown was worried about biting the Tea Party hand that had first fed him, so he wouldn’t cast many more votes in line with Massachusetts. The others? Most would either soon retire in frustration or face brutal primaries. The years 2011 and 2012 weren’t going to be easy, and the Republican ranking member on the Foreign Relations Committee, Dick Lugar, would soon succumb to the Tea Party’s ammunition.

  I didn’t want to give in automatically to the pessimism that says “don’t try, it can’t happen.” It seemed premature to think that the Senate was shut down for any further foreign policy debates, and I hoped that perhaps the Tea Party wave had crested and there might be a return to some degree of normalcy.

  Ted Kennedy always said that good issues and good ideas find their moment, and you want to have laid the groundwork to be able to seize that moment when it comes. There were two good ideas sitting in front of us that the Foreign Relations Committee had a responsibility to try to put into action. Unfortunately, they both had the words “United Nations” attached to them: the UN Convention on the Law of the Sea and the UN Convention on the Rights of Persons with Disabilities. There was certainly a case to be made that both were reasonably achievable. The Law of the Sea Treaty was being urged on us by the U.S. Navy because freedom of navigation was gospel to them. They wanted the United States to be a party to the treaty because we lived by its rules anyway, and joining gave us a seat at the table.

  Hillary Clinton and I were both huge believers in the treaty for geostrategic reasons. While we sat on the sidelines, Russia and other countries were carving up the Arctic and laying claim to the oil and gas riches in that region, but we couldn’t take them to task because we were outside the treaty body that provided international legitimacy for Arctic claims. China controlled the production of rare earth minerals—90 percent of the world’s supply—and the world relied on that supply for cell phones, computers and weapons systems. Yet we weren’t a party to the treaty vital to determining the rules to secure these minerals from the deep ocean seabed.