The corporate news releases applauding the introduction of legislation to revive the controversial Fast Track trade authority were flying fast and furious last week.
The Nixon-era procedure, which allows trade pacts to be signed before Congress approves them, and then to be railroaded through Congress in 90 days with limited debate and no amendments, is deemed essential to implementing the Trans-Pacific Partnership (TPP).
But an interesting thing happened on the way to the long-delayed submission of the Fast Track bill. Not a single House Democrat would agree to cosponsor it. The "Bipartisan Congressional Trade Priorities Act of 2014" had U.S. Sen. Max Baucus (D-Mont.) as its only Democratic sponsor, along with U.S. Rep. Dave Camp (R-Mich.) and Sen. Orrin Hatch (R.Utah.)
The legislation replicates the Fast Track mechanism found in the 2002 grant of Fast Track, which more than 150 House Dems announced they would oppose in a 2013 letter, as did several dozen House GOP. It's rare these days that Congress agrees on anything across the aisle. So it's notable that a large bipartisan bloc has said no to Fast Track and insisted on maintaining the exclusive constitutional authority over trade that the Founding Fathers granted to Congress.
Both Democratic and GOP presidents have struggled to persuade Congress to delegate away its constitutional trade authority via the Fast Track scheme. Fast Track has been in effect for only five years (2002-2007) of the 19 years since passage of the North American Free Trade Agreement (NAFTA) and the agreement that created the World Trade Organization (WTO).
Passing Fast Track in the first half of 2014 before lawmakers' attention turns to midterm elections would require a full court press by President Obama in addition to the massive corporate campaign that is already gearing up. How Obama handles Fast Track in his State of the Union address will be one sign of whether such a White House campaign is forthcoming.
Proponents of the Camp-Baucus Fast Track bill are trying to reanimate the moldering corpse of Fast Track past by highlighting the bill's inclusion of some new negotiating objectives for trade pacts not found in the 2002 Fast Track. But the underlying Fast Track process included in the bill ensures that these objectives are entirely unenforceable. So, inclusion of the most wonderful negotiating objectives means nothing. Not that the new ones are wonderful.
The real is that under Fast Track, whether or not the president obtains the listed negotiating objectives, the Camp-Baucus bill would empower the president to sign a trade pact before Congress votes on it, with a guarantee that the executive branch could write legislation to implement the pact and alter wide swaths of existing U.S. law, obtaining both House and Senate votes within 90 days. That legislation would not be subject to markup and amendment in committee, all amendments would be forbidden during floor votes and a maximum of 20 hours of debate would be permitted in the House and Senate.
Indeed, Democratic and GOP presidents alike have historically ignored negotiating objectives included in Fast Track. The 1988 Fast Track used for the North American Free Trade Agreement (NAFTA) and the establishment of the World Trade Organization (WTO) included a negotiating objective on labor standards, but neither pact included such terms. The 2002 Fast Track listed as a priority the establishment of mechanisms to counter currency manipulation, but none of the pacts established under that authority included such terms.
Congress' willingness to support Fast Track has also declined markedly because "trade" agreements have increasingly invaded Congress' domestic policymaking prerogatives. The TPP includes chapters on patents, copyright, financial regulation, energy policy, procurement, food safety and more -- it would constrain the policies on these matters that Congress and state legislatures could maintain or establish. Fast Track is outdated 1970s technology being applied to 21st century pacts.
Prior to Fast Track and starting with Franklin Roosevelt's presidency, Congress gave Tariff Proclamation Authority (TPA) to presidents. But it covered only tariffs, not the broad subject matter included under Fast Track. The mechanism allowed the executive branch to implement reciprocal tariff cuts only within bounds set by Congress. Notably, this "TPA" was entirely different than Fast Track, which is sometimes called Trade Promotion Authority (TPA), as it pertained only to tariffs. (Public Citizen's 2013 book, "The Rise and Fall of Fast Track Trade Authority," provides an in-depth history of Fast Track and U.S. trade authority.)
Due to Fast Track's controversy, President George W. Bush spent two years and extraordinary political capital to obtain the 2002-2007 Fast Track grant, which passed a Republican-controlled House by one vote and expired in 2007.
A two-year effort by President Bill Clinton to obtain Fast Track trade authority during his second term in office was voted down on the House floor in 1998 when 171 Democrats were joined by 71 GOP who bucked then-Speaker Newt Gingrich. Clinton did not have Fast Track for six of his eight years in office, but still implemented more than 130 trade agreements.
In 2008, during his presidential campaign, Obama promised to replace Fast Track with a more inclusive process. History seemed with him: A new system of trade authority delegation has been created every few decades since 1890.
But Obama has ramped up his demand that Congress once again cede its constitutional trade authority via Fast Track. The White House applauded introduction of the Camp-Baucus bill even as five Democratic Senators on the Finance Committee, which has jurisdiction over trade, came out against it -- joining the vast majority of House Democrats in opposition.
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