William & Mary Environmental Law and Policy Review


Jordan Smith


The United States’ federal election system is constantly the focus of debate, including components from voting mechanisms, to candidate selection, and to the candidates themselves. Unsurprisingly, campaign finance has also been the source of much debate. For decades, scholars, politicians, lawyers, and laypersons have debated the merits and shortcomings of the campaign finance system enumerated in the United States Code. The landmark Citizens United v. Federal Election Commission (“FEC”) decision in 2010, in which the United States Supreme Court equated corporate speech to human speech, merely added fuel to the fire. The considerable volume of scholarship based upon campaign finance reform covers a wealth of topics, but one stone has been left unturned: the impact of unfettered campaign expenditures on the development of multilateral international treaties.

It may be quite difficult for one to imagine a scenario in which campaign finance could impede the adoption of a treaty under American law. However, consider the Paris Climate Accord (“PCA”). The PCA was developed in 2015 as a result of large-scale international consensus regarding the global need to reduce carbon emissions. The United States became a party to the PCA via an executive order signed by then-President Barack Obama. Debate soon arose as to whether the United States was bound to adhere to the provisions of the PCA, however, as the PCA was not adopted under the Treaty Clause of the United States Constitution. The Treaty Clause, in essence, provides that in order for the President to enter into a treaty, he must do so with the approval of two-thirds of the United States Senate. Under the executive order process, this approval did not happen; yet, the United States continued to adhere to the PCA’s provisions until early 2017, when the Trump Administration announced that it planned to withdraw the United States from the PCA.10 Note that as of this writing, the United States is still a party to the PCA.

The PCA reinvigorates an intriguing, oft-debated question: Is the Treaty Clause dormant? In the last century, the United States government has made considerably little use of the Treaty Clause, despite the increasingly international modern world. In many instances in which the Treaty Clause does arise (in fact, in the only instance in which many American law students study the Treaty Clause), the focus is upon environmental treaties. For example, Missouri v. Holland, the seminal constitutional law case on the subject, centered upon the enforcement of a wildlife protection treaty, the Migratory Bird Treaty Act. So one must wonder why international agreements like the PCA have bypassed the Treaty Clause in their adoption into United States law. There are a number of potential explanations for this, but this Note posits that one reason is the increasing difficulty individuals and environmental interest groups have in influencing politicians; this is a direct result of excessive corporate influence in campaign finance expenditures.

In the following discussion, I suggest that the Treaty Clause of the United States Constitution will lie dormant unless the American campaign finance system is reformed to regulate corporate influence. Major oil, gas, and energy companies will continue to utilize massive soft money expenditures to overshadow the political voices of environmental interest groups and individuals; as a result, no multinational environmental regulatory treaty will likely surpass the two-thirds majority senatorial threshold required to bring a treaty into full force in American law. To facilitate this discussion, I have broken this Note into four sections: (1) an overview of the Treaty Clause and its decline, (2) the basics of campaign finance law, (3) an empirical analysis of campaign contributions by the oil and gas industry and the voting patterns of a cross-section of United States Senators, and (4) a discussion connecting that data to the question of Treaty Clause dormancy. Along the way, I will also discuss possible legal rationales for reforming the campaign finance system and the future with or without such reform.