Fast Track: New Report Proves Difficulty of Defending the Indefensible

When most people hear about a political maneuver that empowered corporate-advised executive branch negotiators to skirt Congress and rewrite policies that affect our daily lives, they don’t say, “Well, that sounds like something worth defending.”  But that improbable response is exactly the position being taken by corporate defendants of Fast Track who have announced a desperate push to revive the undemocratic maneuver by the end of this year. 

Fast Track was a Nixon-crafted ploy, used to railroad through Congress unpopular “trade” deals that have empowered foreign corporations to attack domestic health and environmental policies, enabled pharmaceutical firms to raise medicine prices, and equipped banks with a tool to roll back financial regulation.  Under the U.S. Constitution, Congress is supposed to write the laws and set trade policy.  For 200 years, these key checks and balances helped ensure that no one branch of government had too much power.  But that changed with Fast Track. 

Fast Track delegated away Congress’ constitutional authority over trade pacts, empowering the executive branch to negotiate and sign an agreement before Congress approved the contents.  Then it allowed the executive branch to write legislation that could not be amended and to force a limited-debate vote on the sealed deal within 90 days.

As unpopular deals like the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) were rammed through Congress under Fast Track, mounting opposition to the maneuver grew strong enough to force Fast Track’s corporate proponents to attempt a rebranding (cynically redubbed as “Trade Promotion Authority”). 

It didn’t work.  Fast Track remained polemical and Congress finally allowed it to die in 2007. 

Now Fast Track’s corporate proponents are trying hard to revive it, because they’d like to shove another unpopular “free trade” agreement (FTA) through Congress.  Administration officials have admitted that Fast Track’s democracy-defying procedure will be essential to usher into law the controversial Trans-Pacific Partnership (TPP) – a sweeping U.S. pact under negotiation with 11 Pacific Rim countries that would impose new rules on daily realities ranging from access to medicines and food safety to Internet freedom and Wall Street reform. 

One of the most recent attempts to revive Fast Track is a report put out by the Third Way think tank – a glossy 10-pager that undertakes the unenviable task of defending Fast Track.  To do so, the think tank employs a series of claims that are as indefensible as Fast Track itself.  Here’s a sampling.

Claim: We must revive Fast Track to push through Congress the controversial TPP because the deal will boost U.S. exports (even to non-TPP countries). 

Reality:

• Exports have actually suffered under FTAs, not gained. U.S. goods exports to Korea fell 10 percent, and the U.S. trade deficit with Korea climbed 37 percent, in the first year of the U.S.-Korea FTA, a template for the TPP that took effect in March 2012. Overall, export growth has been lackluster under FTAs. Growth of U.S. exports to countries that are not FTA partners has exceeded U.S. export growth to countries that are FTA partners by 38 percent over the last decade. The tired and counterfactual promise of FTAs leading to export growth does not gain truth via repetition.

• The report hopes for big export gains…to non-TPP countries. The report touts a potential export growth of $600 billion to “Asia-Pacific markets” if the U.S. were to recapture its historical export share in the region.  Great.  But not relevant to the TPP.  The $600 billion projection is based on a hypothetical rise in exports to 12 countries.  Seven of them are not in the TPP.  Two more are in the TPP but already have FTAs with the United States.  That leaves three countries for which the TPP could even plausibly have a bearing on the question of how to increase exports (a question that, per the last point, deserves the answer: “not through another FTA”).  Yet, the report is content to use this hypothesized export growth “opportunity” that is 75% patently irrelevant to the TPP as the reason why the TPP should be railroaded through Congress.  

• The TPP is not really about trade.  Only five of the TPP’s 29 proposed chapters actually pertain to traditional trade matters.  The rest would set new rules affecting everything from food safety and financial markets to medicine prices and Internet freedom.  The reason for wide-ranging public and congressional opposition to the TPP is because people don’t want more expensive healthcare, unsafe food, a rollback of Wall Street reform, corporate attacks on environmental safeguards, etc.  While there is no observed correlation between enacting an FTA and seeing exports rise, there is a correlation between enacting one and seeing public interest safeguards fall.  

Claim: Though Fast Track empowered the executive branch to unilaterally negotiate and sign FTAs, Congress could still influence the content of the deals by naming non-binding “negotiating objectives.” 

Reality:

• Congressional “negotiating objectives” have been historically ignored.  The 1988 version of Fast Track, used to push NAFTA through Congress, included a negotiating objective that Fast Tracked deals should “promote respect for worker rights.”  But NAFTA did not even include a labor chapter, much less enforceable labor standards (after the actual text was signed, President Clinton appended a “side agreement” on labor with lackluster enforceability).  By contrast, the last version of Fast Track, passed by three votes in 2002, actually included limits on labor rights obligations.  But in an inverse demonstration of the inefficacy of negotiating objectives, congressional Republicans found themselves facing Fast Tracked votes on trade agreements with Peru, Korea, Colombia and Panama that included stronger labor standards than in any past U.S. trade agreement.

• Fast Track gave Congress no opportunity to certify compliance with negotiating objectives.  Under Fast Track, Congress had no power to stop the President from signing FTAs that failed to meet their explicitly stated negotiating objectives.  If the executive branch believed negotiating objectives had been met but members of Congress disagreed, the President could still sign the deal and send it to Congress for a rushed, up-or-down vote, giving them zero chance to change the objective-defying content of the FTA text.

• A Fast Track replacement is necessary to give teeth to Congress’ negotiating objectives.A new, more democratic, and constitutional trade negotiating system would grant Congress the power to vote on the contents of a trade deal before – not after – the President could seal the deal with a signature.  This 21^st-century trade authority would grant Congress leverage to ensure that negotiating objectives were met before a pact could be finalized.  By contrast, the Third Way advocates for an old way – that congressional negotiating objectives should be unenforceable statements of aspiration, and that Congress’ primary role should be deciding whether to rubber-stamp what the President has already signed. 

Claim: Fast Track gave Congress plenty of “authority over trade policy” by allowing members of Congress to vet deals with an ex-post, no-amendments, limited-debate, expedited vote.  

Reality:

• Fast Track denied Congress the authority to shape pacts that implicated wide swaths of congressional policymaking.  The Third Way posits that Fast Track’s binding of congressional influence over the content of sweeping “trade” pacts is acceptable because an earlier version of delegated trade authority, the 1934 Reciprocal Trade Agreements Act (RTAA), did not even grant Congress an after-the-fact vote on presidential changes to tariff levels.  But while the RTAA was used for narrow pacts concerned simply with cutting tariffs, today’s “trade” deals are 700-page tomes with binding rules on financial regulation, energy policy, immigration, procurement, patent and copyright law, and food and product safety standards.  For the first time, Fast Track handed over to the President the power to sign an agreement, without congressional approval, to which such a panoply of non-tariff public interest policies would have to conform.  Fast Track’s allowance of a restricted, ex-post congressional vote on such sweeping deals hardly offset its violation of Congress’ constitutional responsibility to shape both trade and non-trade policies. 

• Notifying members of Congress that a pact is about to be signed without their consent does not give them “authority over trade policy.”  The Third Way report touts Fast Track’s requirement for the President to provide notice to Congress 90 days before unilaterally signing an FTA.  But this procedural nicety did nothing to alter the fact that Congress had no means of ensuring that the FTA about to be signed actually met congressional goals.  Members of Congress could balk at elements of the deal that were unfair or that would undermine public interests, but the President could (and repeatedly did) go ahead and sign the deal so long as he told Congress he was going to do so.  

• Marginal attempts to limit Fast Track’s power grab have failed to do so.  The report also claims that a “procedural disapproval resolution” provision in the 2002 Fast Track honored Congress’ trade authority by allowing Congress to deny a request from the President to extend Fast Track.  First, this provision did nothing to stop President George W. Bush from signing highly controversial FTAs, such as the Central America Free Trade Agreement (CAFTA), under Fast Track’s extraordinary terms before an extension of Fast Track authority became necessary.  Second, when Bush did request an extension of Fast Track in 2005, a congressional attempt to deny the extension through a procedural disapproval resolution soon failed on a Fast Track-imposed hurdle.  Proposed by Senator Dorgan (D-NY), the resolution never made it out of the Senate Finance Committee.  The failure of such marginal tweaks to Fast Track’s Congress-trumping rules only bolsters the case for replacing Fast Track altogether with a new process for negotiating and implementing trade agreements that restores Congress’ constitutional role.

Claim: Fast Track is necessary to negotiate trade deals.  

Reality:

• Literally hundreds of trade deals have been negotiated without Fast Track.  Fast Track was actually only used 16 times in its decades-long history, typically for the pacts that were the most controversial and most expansive in binding non-trade policies (e.g. NAFTA, CAFTA, launch of the WTO).  For agreements actually focused on traditional trade matters, numerous countries have in fact allocated resources to negotiating such pacts with the United States without application of Fast Track’s extraordinary procedures.  Third Way’s disingenuous assertion to the contrary ignores hundreds of enacted agreements listed by the Office of the U.S. Trade Representative.  For example, President Clinton only had Fast Track authority for two of his eight years in office and only used it twice.  Yet, his administration boasted the enactment of hundreds of trade and commercial agreements with diverse countries.  As former Clinton administration U.S. Trade Representative Charlene Barshefsky said in 2000, “if you look at our record on trade since 1995, I don’t think the lack of Fast Track impeded our ability to achieve our major trade goals.”

Claim: Fast Track has not fostered “secret trade deals made in the dark.”  

Reality:

• The original Fast Track gave a club of official corporate trade “advisors” privileged access to trade texts and negotiators.  This trade advisory system, established in Nixon’s initial Fast Track law, remains in effect.  Today over 600 official advisors, comprised mostly of corporate representatives, get access to FTA negotiating texts that are denied to the public.  Third Way misleadingly states that these privileged advisors “run the gamut from advocacy groups—including the AFL-CIO, the Environmental Defense Fund, Oceana, Consumers Union, and the National Farmers Union—to large U.S. companies like Cargill, General Electric, and Kraft Food.”  What they do not state is that “advocacy groups” constitute a tiny portion of the advisors while about nine out of ten advisors explicitly represent industry.  In fact, General Electric alone has twice as many representatives in the advisory system as all consumer advocacy groups combined. 

• Perfunctory congressional consultations are small consolation for a deal crafted behind closed doors.  Third Way touts the fact that Fast Track required the administration to engage in some degree of consultations with Congress.  But administration-delivered briefings to Congress on a deal do not constitute congressional guidance of that deal, particularly if congressional negotiating objectives can be summarily ignored in the final text.  Third Way also notes that the Obama administration has consulted Congress on the TPP (though the pact is not being negotiated under Fast Track rules).  They do not mention that for more than three years of closed-door TPP negotiations, the administration did not even allow members of Congress to see the TPP negotiating text.  Even since the administration started allowing members of Congress to get limited peeks at the TPP text (without being allowed to take substantive notes, have technical staff present, or publicly discuss what they read), members have said that congressional consultation on the deal has been insufficient.  If Fast Track’s extreme rules were to be applied to the TPP, Congress’ ability to influence the deal would be reduced even further. 

Amidst all of the baseless defenses of Fast Track, Third Way does make one less objectionable statement: that negotiations for the TPP and the Trans-Atlantic Free Trade Agreement (TAFTA) “are proceeding under the assumption that [Fast Track] will be in place by the time negotiations finish.  If Congress does not renew [Fast Track], it is unlikely that these important negotiations will finish at all.” 

There’s little doubt that Fast Track’s underhanded treatment is indeed necessary to push through polemical deals like the TPP and TAFTA that pose sincere threats to consumers, workers, and the environment.  As opposition to these deals mounts in Congress and among the general public, Fast Track’s legislative luge run becomes all the more necessary to slide the unpopular pacts through Congress, and the corporate push to revive Fast Track becomes all the more critical to halt. 

Comments

[Roger Chittum]

This is a very solid refutation of the case for fast track authority. Fast Track is dead and should stay dead.

[Louise]

Being a "Commoner" (As per UK definition) meaning an ordinary citizen, I have some dumb questions to ask about the present situation.

All those golden “old boys” with title of senator or congressperson are elected by us “the people” They are not anointed and granted total immunity. If they fail in their duty, the same people who “hired them” for office should be entitled to “dismiss” them for gross failure to perform.

Again, I do not know much but I have read the outline of the US constitution and buried somewhere is a paragraph about the citizen’s right of REFERENDUM. I even know what it means.
Yet, I am very puzzled that it is never spoken about, not even hinted, by anyone.
I would really appreciate if our enlightened legal minds could answer this question by the vector of the blog.
Is there a taboo attached to this option, or is it being ignored for the same reason which makes many of our rights being trampled upon, like the one to refuse TAFTA for example?
Thank you in anticipation.

[Fran]

It can be difficult for many of us to keep track of how our "representatives" (I use that word ironically) vote on specific issues. It would be helpful if there was a database comprised of Congress critters' names and their voting records on such issues as FTAs.

Two points: Senator Dorgan, now retired and working for lobbying firm (so much for his populism), was a senator from North Dakota, not New York.

Clinton didn't really need Fast Track because it took a few years for the disastrous effects of FTAs to kick in. There was little evidence during his time in office that the FTAs would bring this nation's economy to its knees since the massive outsourcing had not yet occurred.