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Print This PageGovernor Sebelius, Cuba & The Compact Clause
I’ve been spending more time than is probably healthy over the last year researching the Compact Clause. Article 1, Section 10 of the Constitution prohibits U.S. states from entering into any “treaty, alliance or confederation” and bans them “without the consent of Congress” from entering ”into any agreement or compact with another state, or with a foreign power.” The Supreme Court has had its way with these provisions in the context of interstate compacts, interpreting “any agreement” to only mean “some agreements”, namely those that threaten the unity or supremacy of the federal government. And most (with a few notable exceptions like Ed Swaine and his dormant treaty power thesis) have assumed that the Court’s rationale extends to compacts or agreements with foreign powers. That might explain the results of my own research, where I’ve only found 5 instances in which Congress has specifically consented to a foreign compact (2 on fire fighting assistance; 2 on emergency management assistance; and 1 for the Niagara River Peace Bridge) plus the International Bridge Act, 33 U.S.C. 535a, which authorizes trans-border bridge deals with Canadian provincial and Mexican state governments more generally.
On the other hand, my research assistants and I have found reports (or the actual texts) of more than 300 separate written agreements between U.S. states and foreign national or sub-national governments. From this, I gather that some U.S. states appear quite comfortable self-interpreting the Court’s doctrinal gloss on the Compact Clause and using it to justify state autonomy in concluding foreign agreements. Indeed, there’s little evidence that Congress is even aware of, let alone has approved, any of these deals, which range from sister-state arrangements to agreements managing shared resources, to commitments with more political overtones like this one.
Now, one of my projects is to challenge the conventional wisdom that equates interstate and foreign compacts, and explain why, even if interstate compacts can frequently occur without congressional oversight and approval, the same should not be true for foreign agreements. I’ll save for a later post a fuller exposition of my argument. But, for now, I want to highlight one of the reasons I’ve launched this project–uncovering what U.S. states have actually done under the current operation of the Compact Clause.
Enter Governor Sebelius. Here’s a report from the Jan. 13, 2004 Wichita Eagle (via Westlaw) of her signature on Kansas’s behalf of a 2003 pact with Cuba’s state food purchasing agency, Alimport:
Gov. Kathleen Sebelius has signed a joint communique with Cuba’s largest food importer, hoping to increase trade between Kansas and the island country. Under the deal, the Empresa Comercializadora de Alimentos, also known as Alimport, will spend $10 million on Kansas agricultural products. In return, Kansas will try to promote business opportunities in the Cuban market and encourage normalization of trade relations between the United States and Cuba.
The communique is nonbinding but signals an intent by both sides to do business, said Patty Clark, director of the agricultural marketing division of the Kansas Department of Commerce and Housing. The accord could have been made without Sebelius’ participation, but the governor wanted to sign it “to add weight and influence to the negotiation process on behalf of Kansas companies,” Clark said. Pedro Alvarez, chairman and chief executive of Alimport, hailed the communique, which was signed by Sebelius on Dec. 9 but not publicly announced by Sebelius’ office. Kansans learned of the agreement when it was announced by Cuba’s Radio Rebelde.
Clark said the agreement was similar to others the state has pursued with other countries, such as Taiwan. She said $10 million was a benchmark, and Alimport could exceed it. The communique was worked out after three trips by state officials and Kansas agricultural producers to Cuba and Mexico to build relations with Alimport, Clark said. Kansas products, such as wheat and flour, already have been exported to Cuba since some trade restrictions were relaxed with Cuba in 2001.
The communique calls on state officials to encourage the Kansas congressional delegation to repeal remaining trade and travel restrictions with Cuba, and to help secure visas for Alimport guests to travel to Kansas.
Now, analogizing to the existing Compact Clause doctrine for interstate compacts, Governor Sebelius can probably invoke the “non-binding” label to explain why Kansas didn’t need to take this deal to Congress (In Northeast Bancorp, the Court suggested a legally binding agreement is required to constitute a compact). Moreover, it’s not like Kansas couldn’t lobby the federal government for changes in Cuba policy on its own. But, do these defense make sense where, non-binding label or no, the “deal” here appears to have involved an agreement to purchase $10 million in Kansas goods in return for Kansas representing Cuba’s interests from within the U.S. political system? Historically, one of the primary reasons for the Compact Clause was to preserve the Union from foreign corrupting influences. Now, surely Cuba can lobby the federal government directly via diplomatic or other means. But, does Cuba get to make deals with U.S. states to do such lobbying for it, without any monitoring or oversight from the federal government? Indeed, I presume that the federal government would internalize Kansas calls for changes in U.S. Cuba policy differently depending on whether or not it had any knowledge of this deal. Of course, Kansas did not publicize its deal, and I still can’t find the actual text. On the other hand, in 2005, Kansas’s Lt. Governor Moore did trumpet Kansas’s push for a change in U.S. policy toward Cuba.
I’m interested in reader reactions. Is this illegitimate behavior by a state of the United States? If not, should we revisit the idea of having Congress exercise more oversight over state agreements with foreign governments, regardless of whether they are characterized as political or legal commitments? And, of course, there’s the elephant in the room; the constitutionality of the act aside–does Kansas’s actions in 2003 impact this 2008 decision in any way?
http://opiniojuris.org/2008/07/24/governor-sebelius-cuba-the-compact-clause/
8 Responses
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So does the entire State of Kansas need to register now as an agent of a foreign government, or simply Governor Sebelius?
Billy Carter was an agent of Libya, but I think most U.S. Citizens would agree that the Vice President should not be an agent of Cuba, even without the Russian nuclear bomber situation.
at 9:58 am EST Diplomatic Gunboat
1. Duncan, This is an interesting project. I do wonder, however, whether your focus on Governor Sebelius – apparently for dramatic effect – distracts from the interesting legal questions you’ve teed up about state compacts generally and the Kansas-Cuba communique in particular. By asking whether the communique is an “elephant in the room” that affects Governor Sebelius’ vice presidential prospects, you seem to suggest that the communique represents a notable and politically unacceptable degree of support for agricultural exports to Cuba. Your focus on the Kansas communique gives the impression that the Government of Kansas is somehow unique in pursuing export opportunities in Cuba for its farmers. But that is clearly not the case. I have seen plenty of news reports in recent years about efforts by state governments, including efforts by Republican administrations in “red” states, to promote agricultural exports to Cuba. These reports have included travel to Cuba, meetings with Cuban officials, and support for changes in federal laws and regulations to facilitate agricultural exports to Cuba. I believe this pattern is relevant to the political question you’ve raised, even if they do not rise to the level of (possibly) constituting a “compact.”
2. Diplomatic Gunboat too quickly concludes that the State of Kansas or Governor Sebelius personally have become “agents” of the Cuban Government. He or she provides no analysis of the applicable statute, the Foreign Agents Registration Act, 22 USC 611 et seq. For example, how likely is it that the US Department of Justice and the federal courts would conclude that the term “person” in FARA embraces the 50 States? No “person,” no “agent,” no registration requirement. There is also an exception to registration for activities “not serving predominantly a foreign interest.” No doubt, Kansas (like other States engaged in export promotion) regards itself as “serving predominantly” the interests of local businesses. The facts, as presented by Duncan, also fall short of triggering registration: the communique is non-binding; Governor Sebelius is not reported to have engaged in any relevant “political activities”; indeed, Governor Sebelius is not report to have engaged in any relevant activities at all beyond merely signing the communique on behalf of Kansas.
I hope these thoughts are helpful.
–Perry.
at 1:51 pm EST Perry Bechky
Diplomatic Gunboat & Perry — Thanks for the comments. Two quick responses. First, what I found unusual in this Cuba-Kansas pact was NOT the fact that Kansas got Cuba to commit to buying $10 million in Kansas goods. Although there’s always the question of whether that disadvantages other states in some way, I agree that there are plenty of examples of pure trade promotion agreements between U.S. states and Cuba (as well as other nations). Rather, what I found so interesting (and controversial) was Kansas’s reciprocating promise to go to bat for Cuba vis-a-vis federal policy. Second, I concur that the “non-binding” designation may be a useful defense for Kansas under current law (which is one of the reasons I’d like to see it changed). That said, I disagree that Kansas hasn’t done anything concrete to follow through on its “political” promise to Cuba to encourage a change in US policy given the Kansas delegation’s co-sponsorship of a bill to do just that and the Kansas Lt. Governor’s press release in support of it as well.
at 5:54 pm EST Duncan Hollis
The FARA definition is broad: ‘The term “person” includes an individual, partnership, association, corporation, organization, or any other combination of individuals;’
22 USC § 611(a).
It is certainly broad enough to include the Governor herself, who reportedly insisted on personally signing the agreement. The State of Kansas is an ‘other combination of individuals’ but the definition obviously would not encompass the entire population who had no idea their governor was signing secret agreements with Cuba. It would include those other officials with knowledge of the agreement who intended to act in accordance with it. Knowledge of the FARA statute itself is not required.
The Act contains no exemption for state officials, and such an exemption would be utterly illogical. The text of the ‘predominantly’ exemption cited is as follows:
§ 613. The requirements of section 612(a) of this title shall not apply to the following agents of foreign principals:
. . . .
(d) Any person engaging or agreeing to engage only (1) in private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal; or (2) in other activities not serving predominantly a foreign interest; or (3) in the soliciting or collecting of funds and contributions within the United States to be used only for medical aid and assistance, or for food and clothing to relieve human suffering, . . . .
22 USC § 613.
Agreeing simply to sell grain to Cuba would fall under the exemption. Agreeing to lobby for Cuba, in exchange for Cuba buying Kansas grain, does not.
Gov. Sebelius was not agreeing only to engage in activities not serving predominantly a foreign interest (pardon the double negative). By agreeing to lobby Congress to ‘repeal remaining trade and travel restrictions with Cuba,’ she was agreeing to lobby on behalf of Cuba in exchange for Cuba buying Kansas grain. Cuba was already able to buy the grain, so the lobbying itself was predominantly (perhaps exclusively) for the benefit of Cuba, not Kansas. The cited exemption does not apply–unless private foreign agents can likewise say their activities are predominantly for the money they get paid, not for the client’s interests, and thus be exempt. (They can’t.)
This agreement was reportedly in the works for a while. The entire Kansas congressional delegation in 2001 apparently had voted in favor of maintaining Cuban travel restrictions until the release of political prisoners, so getting the sitting governor and administration to lobby on its behalf against trade and travel restrictions would be quite valuable to Cuba.
The claim that ‘one might not be an agent if one never actually lobbies’ fails because the FARA also applies to those who simply ‘agree’ to do so, regardless of whether they actually follow through. See 22 USC § 611(c)(2), linked above.
And there is no reason to believe she did not follow through on her pledge to Cuba. Most lobbying occurs in private. We know the Lt. Gov. publicly called for an end to the restrictions on Cuba, after tracking to ensure the Cuban-bought grain came solely from Kansas. I’d be curious to see what the Governor’s FARA report would say. Would you be shocked, shocked to learn that she had conversations with members of Congress pertaining to Cuba?
‘But it’s nonbinding!’ That’s a pretty neat way around FARA, just add a ‘This agreement is not binding’ clause to each secret arrangement you make with a foreign government and then you don’t have to register. It is unlikely the DOJ or the federal courts would find that argument convincing.
‘But don’t forget States’ Rights–The FARA cannot apply to state government officials!’ While usually sympathetic to claims of federalism and the 10th Amendment (which have not yet been made here), I would find such an argument weakened by the express constitutional prohibition on the exact conduct asserted as a right.
I have to agree with the original post, allowing behind-the-scenes deals between U.S. states and foreign governments is fraught with potentially grave risks, and this is a core reason for the constitutional provision at issue, even if the agreements are ‘nonbinding.’ If you think this should be allowed because lifting restrictions on Cuba would be good, what would you think about a governor’s secret, nonbinding agreement to lobby on behalf of Sudan, China, or Russia (don’t think it won’t happen)?
But maybe Governor Sebelius just thought they were talking about the town of Cuba, Kansas. We cannot know much without the text of the agreement itself.
Sounds like its time for a FOIA request. And an explanation.
at 7:29 pm EST Diplomatic Gunboat
The governor was trying to drum up more business for her state. She committed no state funds when agreeing to advocate more commerce for her state. Why is this even an issue?
It’s time and over time and then some to normalize relations with Cuba, just as has been done with China and Vietnam, and move ahead. China and Vietnam have the same political system which the Cubans have. What’s the big deal?
Not long ago the New York Philharmonic went to North Korea to perform. Cuba is the only place on earth where people from the United States need a permission slip from the federal government to go for a visit. What are they so afraid that we’ll see? How bad life supposedly is there? Of course Cuba has any number of problems, but somehow the society manages to work despite many obstacles.
Considering everything, from geography to population magnitude and more, Cuba and the United States are not and cannot be equal. Cuba’s government certainly does limit democratic rights. But in a situation like David and Goliath, Cuba does what it feels it must to defend itself. Look at Iraq today and you can see what Cuba would look like if it were “liberated” by Washington.
In Guantanamo, the world can see what legal system Washington would impose on the rest of Cuba if only it could. In Guantanamo, which is United States occupied territory, prisoners are held without trial for years, and are told they could be held indefinitely even if not found guilty there. In this context, Cuba’s defensive measures should surprise no one.
My father and his parents lived in Cuba from 1939 to 1942. They were German Jewish refugees from Nazi Germany, and not political left-wingers. That family history is where my own interest in Cuba comes from.
Thanks for having some discussion of this.
at 12:46 pm EST Walter Lippmann
But that is not an argument justifying a state governor making a secret deal with a foreign government to try to change U.S. foreign policy (whether the deal is ‘binding’ or not).
Unless the argument was ‘the ends justify the means.’
I do not question the right of state officials to lobby Congress on foreign policy issues–only their right to make agreements with foreign governments to do so. The Constitutional prohibition exists, and for important reasons. It should not be neglected. Nor should the FARA statute.
at 12:11 pm EST Diplomatic Gunboat
Duncan,
It seems that the idea that Kansas did something politically notable comes down to (1) whether Kansas made a “reciprocating promise to go to bat for Cuba vis-à-vis federal policy” and, if so, (2) whether that promise is materially different from the content of agreements signed by other states. To reach that conclusion, one needs to study the text of the Kansas communiqué and compare it with the texts of agreements reached by other states. Unfortunately (in my view), the Kansas communiqué apparently isn’t publicly available. Are the agreements entered by other states?
Absent textual comparison, how confident are you that Kansas is really behaving differently than other states? Personally, I would be somewhat surprised if Kansas were acting notably differently than other states. It seems more plausible to me that the national wheat growers association developed a template communiqué that they wanted the major wheat-growing states to pursue, and that state-level associations then advocated the template in their respective states in coordination with the national association, with the result that Kansas’ communiqué would be generally similar to those entered by other states. In other words, absent facts, my initial expectation is that the communiqué effort would be better-lawyered, and with more horizontal and vertical coordination, than you appear to contemplate.
Likewise, I’d be surprised if Kansas really agreed “to go to bat for Cuba.” And not only because of the nonbinding nature of the communiqué. Rather, in line with Walter Lippmann’s first paragraph, Kansas seems to be going to bat for … Kansan farmers. To be sure, as with all arm’s length commerce, there are matters of mutual interest between the would-be sellers and the would-be buyers. While it’s all nice and good and appropriate in a communiqué to make reference to mutual pursuit of mutual interests, it seems to me that at the end of the day Kansas is clearly pursuing Kansas’ own interests. This distinction seems significant politically (and also significant to the FARA registration argument made by DG, both textually and to (what I believe has been) the Justice Department’s restrained approach to enforcement of FARA in the commercial context).
I hope these thoughts are helpful.
–Perry.
at 1:01 am EST Perry Bechky
The point of the original post seemed to be that the Constitution prohibits states from entering agreements with foreign countries without the approval of Congress, and that perhaps this prohibition should be taken quite seriously. Certainly not that Kansas was alone crossing the line, though it illustrated some of the reasons for the prohibition. Gov. Sebelius seems to have pushed further than some others, but none of these agreements should be allowed without the approval of Congress, per Article 1 Section 10.
As for FARA, it has been getting some more attention lately, including the AIPAC cases, the Chi Mak and related cases (in which Bill Gertz has refused under subpoena to reveal his grand jury sources), and Stephen Payne (Bush library fundraiser extraordinaire). Justice even sent old Tom Ridge a warning letter, prompting his tardy FARA registration.
What is it about potential V.P. nominees and FARA?
at 1:06 pm EST Diplomatic Gunboat