THE BLOG

Put Trade on the Right Track -- Not the Fast Track

05/11/2015 06:05 pm ET | Updated May 11, 2016

Time is growing short in a heated debate over the Obama Administration's ambitious new trade deals. As early as this Thursday, the Senate will vote on granting the President's request for "trade promotion authority" or what is more commonly known as "fast track." The bill before the Senate is procedural: it will provide for the fast tracking of the "Trans-Pacific Partnership" (TPP) negotiated with eleven other Pacific Rim countries and a trade and investment agreement with the European Union (TTIP) expected later this year. Fast track provides for an up or down Congressional vote on the drafts that the President's negotiators bring forward, without the possibility of further amendments by Congress.

Getting fast track out of the Senate has been harder than the President expected, with Senators Elizabeth Warren, Bernie Sanders, Sherrod Brown and most progressive Democrats opposing the Pacific deal, which they say would undercut American labor, environmental protection and democratic government. The President has shot back with heated criticism of his opponents, assuring the public that the TPP is the "most progressive trade agreement in our history." But it is hard for outsiders to verify the President's claim, since the draft of the Trans-Pacific Partnership remains classified under a national security provision and is thus unavailable for public scrutiny.

In fact, members of Congress can only see the draft trade agreement in a secure basement room, after leaving cell phones at the door. Those who have seen the text are later allowed to provide only broad descriptions of what it contains. Given this level of secrecy, it is hard to have any kind of rational debate about a deal that is enthusiastically supported mainly by Republican Senators, who are apparently keen to thwart the President on every item of his agenda except this one, which was negotiated by U.S. Trade Representative Michael Froman, a Robert Rubin-protégé and former managing director at Citigroup.

While the draft TPP may be viewed by those with security clearance, the European negotiations are at a less advanced stage, and no draft of the TTIP is yet available to Congress. But the fast track authority being decided this week would authorize the same up or down Congressional vote on whatever the President's team eventually delivers. In fact, if Congress approves fast track, the grant will last for six years, guaranteeing this Administration--and the next--a chance to push forward the TPP, the TTIP, and any future trade agreements.

There is as much reason to be concerned about these unfinished future agreements as there is about the Pacific one under present consideration. Last week Senator Warren warned about the dangers to Dodd-Frank posed by the TTIP, which looks likely to put new limits on national financial regulatory regimes. European negotiators have been pursuing financial deregulation through the back door under the mantle of trade liberalization. While U.S. negotiators have tried to keep financial regulatory harmonization out of the agreement, the EU has made "financial regulatory cooperation" a central objective of the trade negotiations. While the President insists that Warren is "absolutely wrong" to suggest that his trade deals could undermine domestic financial regulation, the TTIP looks likely to contribute to the ongoing Republican effort to gut Dodd-Frank by chipping away at its enforcement provisions.

For those unconvinced by the President's assurances, there is an alternative to fast track in the form of what Congressman Sander Levin (D-MI) calls "Right Track." Like fast track, Levin's Right Track legislation provides a Congressional promise, if a number of procedural requirements are satisfied, to give the President an up or down vote on whatever his negotiators deliver--but unlike fast track, it specifies more clearly what Congress needs to see in a final deal. In place of the vague negotiating objectives of fast track, Right Track gets into specifics to protect American labor, environment, financial regulation and the democratic process. And, crucially, it contains provisions for reverting to a regular Congressional debate and vote if the Administration brings forward an agreement that violates the initial mandate.

Levin's Right Track may not satisfy all critics of the new trade agreements, as it provides for the TPP moving forward within redefined parameters. But it reflects a mature understanding of how far the new trade agenda has moved beyond the traditional concern with tariffs and subsidies. It eschews the simplistic, textbook understanding of free trade and recognizes that what "free" trade is now about is global governance: the harmonization of national regulatory regimes, often for the benefit of powerful corporate lobbies.

Unfortunately, Levin's amendment was quickly killed in the Ways and Means Committee by Congressman Paul Ryan (R-WI), despite support from Nancy Pelosi (D-CA) and others. Thus the American public was denied a full debate about "right tracking" the TPP through a technicality. But the legislation could get a second look on the open floor of Congress in a few weeks' time when the House turns its attention to the trade deal--unless, that is, the President's new Republican allies find a way to short-circuit public debate once again.

David Singh Grewal is an Associate Professor at Yale Law School, where he teaches international trade law.