US Congressional letters oppose fast track authority: Background
Online Publication Date: 13 November 2013
Recent Letters from U.S. Congress Reveal Why President
Obama Cannot Obtain “Fast Track” Trade Authority
At the late September meeting of his Export Council,
President Barack Obama declared:
“We’re going to need Trade Promotion Authority” to wrap up agreements with 11
Asian and Latin American Pacific Rim countries and the 28 nations of the
European Union. U.S. Trade Representative Michael Froman agreed:
“None of this can happen without Trade Promotion Authority.” Yet, eight months
after the release of his 2013 Trade
Policy Agenda, when President Obama first called upon
Congress to grant him Fast Track authority, legislation to implement the
extraordinary procedure has not even been
introduced in Congress, much less approved. There are only 15 days
remaining in 2013 that the House of Representatives will meet
before leaving for a month-long Christmas and New Year holiday break. What is
the hold-up?
In November, a stunning array of Democratic and Republican members of the House of
Representatives formally declared their opposition to Obama’s Fast Track
request. The prospects for House passage of
Fast Track authority for President Obama for the Trans-Pacific Partnership
(TPP) are quite bleak. Many House Democrats have a strong dislike for TPP. Many Republican House members have a strong dislike for
President Obama, the intensity of which the world recently witnessed when a
lengthy standoff between Obama and House Republicans ended in the U.S.
government being shut down for more than two weeks.
Supporters say Fast Track authority is
needed to coax other countries to make their best offers on sensitive issues
because it provides security that any concessions that the United States makes in
exchange will not be re-opened by Congress. (And, in a complex plurilateral
agreement, withdrawal of concessions by the United States could lead to other
countries doing the same in response.) Under the U.S. Constitution, Congress
has exclusive authority over trade policy. Thus, even when a U.S. president
signs a trade agreement, it can only go into effect if Congress approves it.
The Fast Track process guaranteed that an agreement signed by the U.S. president
would obtain a vote in both chambers of Congress within 90 days of submission,
with no amendments by Congress permitted and no more than 20 hours of debate allowed
in either chamber. Congress cannot alter a Fast-Tracked agreement once it has
been signed by the President or deny it a speedy “yes” or “no” vote.
While Obama administration officials
repeatedly seek to soothe negotiating partners with claims that Congress will
provide it Fast Track authority, in fact Fast Track has been very controversial
and rarely used since it was designed by President Richard Nixon in the
1970s. Because Fast Track involves an extraordinary delegation of Congress’
constitutional authority to the President, it must be explicitly granted by
Congress passing legislation that enacts the Fast Track rules.
Many U.S. presidents have had
difficulty obtaining a Fast Track grant from Congress. Congress denied
President Bill Clinton Fast Track authority for six of his eight years in
office despite Clinton’s official requests in 1995, 1997 and 1998. In 1995,
Congress refused even to consider legislation to establish Fast Track and in
1997 such a bill was taken off the House floor mid-vote to avoid it being
defeated. In 1998, another attempt was brought to a vote and the House of
Representatives voted down legislation to establish Fast Track for the
Democratic president, with 71 Republicans joining 171 Democrats in opposition.
The next president, Republican George W. Bush, spent two years and enormous
political capital to obtain Fast Track in 2002 even though he enjoyed a
Republican majority in Congress. The legislation establishing Fast Track only passed
by two votes after irregular voting procedures were employed. Bush’s attempts
to obtain additional Fast Track authority were rebuffed by Congress in 2007 and
2008. Legislation to reestablish Fast Track was never brought to a vote and the
authority lapsed again from 2007 until the present day. That is, in the 22
years from 1991 until today, Fast Track authority has only been in effect for
eight years total.
President Obama faces special
difficulties in obtaining Fast Track authority, some of which derive from bipartisancongressional ire about the administration’s unprecedented limits on
congressional access to the negotiating process for the TPP. Scores of Republicans and Democrats alike have been denied the right to attend TPP negotiations
as observers. This is a courtesy provided by previous Republican and Democratic
presidents during negotiations for the North American Free Trade Agreement, the
World Trade Organization and many other pacts, in recognition of Congress’
constitutional authority over trade.
Until recently, despite TPP having
been under negotiation since 2008 and slated to be signed this year, members of
Congress were even denied access to draft TPP negotiating texts. During past
U.S. trade negotiations, access was provided to all members of Congress, with
full draft texts located in a secure reading room in the U.S. Capitol easily
accessible to representatives, senators and congressional staff with security
clearances. Only after years of protest, members of Congress can now ask for
specific TPP chapters to be brought to their offices for them to review. But,
congressional staff are required to leave the room, members are not allowed to
take detailed notes or keep the text, and members are not allowed to discuss what they have seen.
Passage of legislation to establish Fast
Track authority is most difficult in the House of Representatives. Representatives
only serve two-year terms, in contrast to senators’ six-year terms. Facing
electoral accountability every two years, representatives are less inclined to
give up their constitutional authority over trade agreements that have grown
increasingly unpopular among diverse elements of the American electorate. A
large bloc of U.S. small business, Tea Party, conservative action, labour,
consumer, environmental, faith and family farm groups oppose Fast Track on
principle, explicitly demanding that members of Congress maintain full
authority over trade pacts. With American voters demanding that their representatives
safeguard them against trade deals that could offshore jobs, allow unsafe food
imports or raise medicine prices, it is difficult to obtain a majority of the
chamber’s 435 members in favor of Fast Track.
With respect to the three major
efforts by presidents to obtain Fast Track in the past 25 years that resulted
in actual votes even being scheduled – by George
H.W. Bush in 1991,
Bill Clinton in 1998 and George
W. Bush in 2002
– the largest margin of House passage was 27 votes in 1991. One of these Fast
Track grants passed by two votes and one failed to pass. A majority of Democratic
House members have opposed both Democratic and Republican presidents’ requests.
A bloc of Republican conservatives has also regularly opposed Fast Track as undermining normal constitutional order.
In 2012, more than 130 House Democrats wrote to the Obama administration demanding access to
the draft TPP text and demanding a change in direction for TPP talks: “Unfortunately, reports
indicate the agreement is likely to repeat, rather than improve upon, the
existing trade template—including the weakening of Buy America provisions,
providing extraordinary investor-state privileges, and restricting access to
lifesaving medicines in developing nations, to name a few.” In November 2013, a startling 166 of the 201 House Democrats sent
letters to President Obama explicitly objecting to his request for Fast Track.
One letter,
signed by 151 members, including much of the House Democratic leadership and many
who had supported the 2011 U.S.-Korea Free Trade Agreement, stated: “Given our concerns, we will oppose
"Fast Track" Trade Promotion Authority or any other mechanism
delegating Congress' constitutional authority over trade policy that continues
to exclude us from having a meaningful role in the formative stages of trade
agreements and throughout negotiating and approval processes.”
Meanwhile,
one of the U.S. Senate’s leading Tea Party Republicans, Sen. Rand Paul,
announced his opposition to
Fast Track in August 2013. Conservative Tea Party leader and former Republican
House member Colonel Alan West launched a
campaign against Fast Track on a major conservative website in October 2013
with an editorial: “No Fast Track for Obama’s Next Power Grab.” An array of
conservative groups have joined the fight against Fast Track. In November, 22
Republican House members sent the president a letter
explicitly rejecting Fast Track: “We are
strong supporters of American trade expansion. We are also strong supporters of
the U.S. Constitution. Article I-8 of the Constitution gives Congress
exclusive authority to set the terms of trade. …we do not agree to cede our
constitutional authority to the executive through an approval of a request for
“Fast Track Trade Promotion Authority.” A group of 6 moderate Republican
Party members sent their own letter
opposing Fast Track.
In addition to the bipartisan
opposition by many House members to Fast Track, another reason that legislation
has not even been introduced is another round of the endless budget-related
battles between Obama and congressional Republicans. Obama
and congressional Democrats insist that legislation to establish Fast
Track be paired with legislation reauthorizing a program called Trade
Adjustment Assistance (TAA). TAA provides extended unemployment benefits and
job retraining to U.S. workers who lose their jobs to trade. Many Republicans oppose
TAA as an expensive government
giveaway. Recently, the powerful conservative lobby group that pushed the strategy to shut down the government also
came out in opposition to pairing TAA with Fast Track legislation. The
inability to resolve this issue is only one of a list of major disagreements
between Democrats and Republicans about the contents of legislation to provide
Fast Track authority.
Worryingly, one issue about which there is no
disagreement is a requirement that even after the U.S. Congress passes a trade
agreement under Fast Track rules, the U.S. president must withhold formal
written notification to partner countries of U.S. completion of its legal
requirements to implement the agreement until
the President certifies that the partner countries have altered their domestic
laws and policies to comply with the agreement’s requirements. That is, even
after both the U.S. Congress has voted to approve a trade agreement and trade
partner countries have also ratified an agreement, it can only go into effect
after the United States unilaterally certifies that the other countries have
met U.S. expectations of trade
partners’ compliance with an agreement’s terms. This mechanism provides U.S.
commercial interests and the U.S. government enormous leverage to try to force
other countries to conform their laws and policies to the U.S. interpretation
of what are often deliberately vague, opaque and contested trade pact terms and
rules. This unilateral certification process results in the United States obtaining additional concessions after a trade pact has been negotiated
and signed. Often, U.S. officials actually travel to the trade partner country
and directly participate in making the changes to domestic law required by the
United States. This U.S. practice is why U.S. trade
agreements often do not go into effect for years even after both the U.S.
Congress has approved an agreement and a trade partner has completed its domestic
legal requirements.
Given the array of congressional
opponents to a Fast Track delegation, it is not surprising that legislation
establishing Fast Track has not been introduced. President Obama’s request that
Congress grant him extraordinary new authority with respect to the TPP faces an
uphill battle. What is surprising is that there is not more awareness among
U.S. negotiating partners that Fast Track is not forthcoming, in no small part
because many in Congress have deep concerns about the TPP and the process being
used to negotiate it.
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