By Lori Wallach, director of Public Citizen’s Global Trade Watch and author of The Rise and Fall of Fast Track Trade Authority
Amidst the distorted trade data and counterfactual foreign policy claims, U.S. Trade Representative Michael Froman offered up a bit of revisionist U.S. trade policy history on Monday that must have left the folks listening to his Council on Foreign Relations speech scratching their heads.
No, FDR did not create Fast Track trade authority. And, JFK did not celebrate its renewal.
Invoking those Democratic icons is an interesting strategy, given that a sizable bloc of House GOP members oppose giving President Obama Fast Track. The extraordinary authority, which Congress has refused to delegate for 15 of the past 20 years, let a president negotiate and sign a “trade” pact before Congress approved it and guaranteed a no-amendments vote in 90 days regardless of whether the pact met Congress’ objectives.
But maybe the target audience was House Democrats, given that only seven of the Democratic representatives have announced support for legislation introduced early this year to revive the old Fast Track mechanism.
In his speech, Froman noted the 80th anniversary of the Reciprocal Trade Agreement Act (RTAA) of 1934 and declared that the trade authority it established was an antecedent of Fast Track, and that it was used by the Roosevelt administration, renewed 11 times by 1962 and toasted by President Kennedy.
House Ways and Means Committee Chairman Dave Camp echoed Froman’s insinuations about Fast Track: “every president, until now, has partnered with Congress to have this powerful tool to negotiate the best possible trade deals for America.” The talking point is also favored by the Business Roundtable and other corporate groups of the Trade Benefits America Coalition: “Trade Promotion Authority is a partnership between the President and Congress…Since the 1930's, such authority has been critical to the opening of new markets…”
Except, in fact, Fast Track was first hatched by Richard Nixon, not FDR. And it only went into effect in the 1970s, not the 1930s.
Due to its unpopularity, Fast Track was only in effect for five of the last 20 years. But that hasn’t stopped U.S. trade growth. Fast Track was only used on 16 of the hundreds of U.S. trade and commercial pacts that have gone into effect since the 1970s. Trade-expansion-focused President Clinton only had Fast Track for two of his eight years in office, after the House voted down his request for the extraordinary authority in 1998. Yet, Clinton’s administration completed more than 200 trade and commercial agreements with diverse countries.
And, that gets us to the TPA sleight of hand. The “TPA” that was established in the Reciprocal Trade Agreement Act of 1934 is “Tariff Proclamation Authority.” It has allowed presidents to declare cuts to tariffs – border taxes on goods – within parameters set by Congress. And yes, presidents have had that authority since the 1930s, including Fast-Trackless Clinton.
In contrast, Fast Track – for which “TPA” was not coincidentally chosen as the preferred rebranding – may be Nixon’s most under-appreciated power grab. For the first time in 200 years of U.S. history, Fast Track empowered the executive branch to “diplomatically legislate” changes to non-trade U.S. domestic policy via “trade” negotiations. Until Fast Track, Congress used five different forms of trade authority over the course of the nation’s history to direct executive branch trade negotiators. None of them granted executive authority beyond tariffs.
In contrast, Fast Track turned “trade” pacts into backdoor means for executive branch officials to set policy on an array of matters otherwise under Congress’ or state legislatures’ constitutional authority: patent and copyright laws; immigration policies; food and product safety standards; financial, health and energy service sector rules; and even government procurement terms. U.S. domestic law must be altered to conform to such “trade” pact terms. Failure to do so can result in indefinite trade sanctions against U.S. exports.
For all the focus on Fast Track’s end-game legislative luge-run of a guaranteed no-amendments, limited-debate vote in 90 days, it was the invasion of Congress’ core policymaking prerogatives that has made Fast Track so toxic. Under Fast Track, the executive branch could ignore – and did so under both Democratic and Republican presidents – Congress’ “trade” pact negotiating objectives and still get the expedited approval processes for whatever it negotiated and signed. That’s why the talking point now being passed around that somehow Fast Track is a means for Congress to exercise its constitutional authority is just silly.
A member of Congress can love free trade and seek new trade agreements and still find unacceptable the concentration of power in the executive branch that is at the core of the Fast Track form of trade authority. The expansive scope of the Trans-Pacific Partnership (TPP) agreement now under negotiation spotlights this reality. Of its 29 chapters, only five pertain to traditional trade matters. Most of the rest of the TPP chapters would set policies on subjects otherwise under the authority of Congress and state legislatures, which would be binding on the United States and not subject to amendment absent approval by all signatory countries.
It is not surprising that the prospects for reestablishment of the expansive old Fast Track delegation of Congress’ constitutional trade and legislative authorities are remote. And that is the case whether or not it is conflated with the old TPA, the new TPA or falsely associated with any beloved president.
The real question is whether the old Fast Track process will be replaced by a new trade authority mechanism that is appropriate for the reality of today’s expansive international commercial negotiations. A modern approach would require an expanded role for Congress from start to finish and much more accountability over executive branch negotiators.