Quo Vadis Europa Helvetica? De-Rusting and Revving-Up the Wheel - or Re-Inventing It?
Some out-of-the-box reflections, observations and ideas on Europa's past and future
Geneva, 13 June 05 - In the wake of the political Tsunami the French and Dutch citizens had unleashed on the European landscape, the Swiss vote on strengthening some bilateral links with the European Union provided some temporary relief. To interpret it as a vote of confidence for the EU's current design, structures and prospects would be a self-deluding mistake, further blocking the vision for exploring needed alternatives for the future of both Europe and Switzerland. Some stock-taking thus seems to be in order.
On its current track, isn't Europe risking to go up in smoke again? And if the Swiss model is worth preserving, can this be achieved by way of Switzerland associating itself still deeper with a fundamentally flawed structure, or by coming out as the de facto "54th State"? By way of reanimating its world-wide network of forgotten but still valid friendship, commerce and establishment treaties - even at the risk of thus hammering another nail into the coffin of the European Union? Or by becoming the "DC" of a European Confederation?
Reflecting the sea-changes under way in Europe, the above questions are all but far-fetched. They animate the political debate as never before at the grassroots level all across the country and beyond. With many a policy maker taken afoot with a useless political magnetic compass in his hands when in fact the political magnetic field he grew up with has simply disappeared. Many of them show difficulties admitting and adjusting to the new realities where gesticulations are less than ever before a helpful substitute for enlightened leadership.
Tongue-in-cheek - some seek to escape the plain-levelling hassles emanating from bureaucrats in Brussels by playing softball with and into the hands of notorious flat-earth hardball players working out of Washington. They even play with the idea of joining Uncle Sam, apparently expecting a return-elevator for services rendered as America's Trojan horse in Europe (e.g. in double-taxation, insider trading, money-laundering, Qualified Intermediary QI and other banking matters). Slightly more realistic - regardless of the resurging U.S. isolationism - but still far from helpful, is the gut reaction from some Swiss bankers, entrepreneurs and their political allies who, with a straight face, have called for strengthening the cross-atlantic bonds by way of a new free trade agreement which is supposed to prevent our exporters and service providers from being discriminated against by other competitors. Which, of course, could stir up things a little with "Brussels" and might keep busy some lawyers and officials here and there. But would it also catch the imagination of true leaders and command respect among those who have a sense of history and actual undercurrents, as well as a vision for new horizons?
Indeed, on the shelf of each Swiss policy and lawmaker, Switzerland's diplomatic patrimony is neatly collected and kept updated in all three national languages in what's called the Systematic Treaty Collection RS. Under number RS 0.142.113.361, one thus easily finds the founders of modern Switzerland, way back in 1850, to have first concluded with their American counterparts a still fully valid "Friendship, Reciprocal Establishments, Commerce and Extradition" treaty which, foremost, provides for national treatment and non-discrimination of each other's citizens in the other country. Explicitly (art.I): they "shall be at liberty ... to manage their affairs, to exercise their profession, their industry and their commerce, to have establishments, to possess warehouses, to consign their products and their merchandise, and to sell them by wholesale or retail, either by themselves, or by such brokers or other agents as they may think proper ... No pecuniary or other more burdensome condition shall be imposed upon their residence or establishment, or upon the enjoyment of the above-mentioned rights than shall be imposed upon citizens of the country where they reside, nor any condition whatever, to which the latter shall not be subject." And (art.VIII and X): "In all that relates to the importation, exportation and transit of their respective products, the United States of America and the Swiss Confederation shall treat each other, reciprocally, as the most favored Nation", whereby "each of the contracting parties hereby engages not to grant any favor in commerce to any Nation, Union of Nations, State, or Society, which shall not immediately be enjoyed by the other party." To be sure, these latter articles were formally abrogated in 1899, but continued to be applied autonomously by both sides, being essentially reinstalled with the US-Swiss commerce treaty of 1936 and the 1947 General Agreement on Tariffs and Trade.
Lacking typewriters, computers and copying machines, the authors of those old texts still had all the incentives to develop and apply the art of simplicity, flexibility and comprehensiveness. Thus, many a policymaker of today may draw inspiration and benefit from cleaning and looking into his own rear-mirrors on the near-by shelf - if his contributions to society are to become part of the solution, rather than of the problem. True, U.S. lawmakers can bear heavily on U.S. foreign policy matters, particularly foreign commercial relations affecting their home turfs. With the unique - and telling - exception of the Swiss-U.S. Treaty of 1850, support for free trade policies has thus been notably scarce among Republicans at least until the Reagan revolution - and it still is in a wide spectrum of U.S. society, contrary assertions during photo ops abroad notwithstanding. However, Switzerland still enjoys a strongly enrooted goodwill not least among U.S. lawmakers, as evidenced in the U.S. Congress' Joint Resolution "To commend the people and the sovereign confederation of the neutral nation of Switzerland for their contributions to freedom, international peace, and understanding on the occasion of the meeting between the leaders of the United States and the Soviet Union on November 19-20, 1985, in Geneva, Switzerland." This goodwill might indeed be drawn on - of course not for reinventing, but for derusting, reactivating and bringing to bear such time-tested and mutually beneficial commerce clauses as those originally written into the 1850 treaty which sought to strengthen the individual citizen against the bureaucracy here and there. Indeed, and as the recent debates and votations over the Treaty for a European Constitution have shown, there is one sure-fire recipe for citizen revolts: lack of focus on the essentials, administrative zeal and hassles, coupled with excessive attention by non-elected and non-constitutional lawmakers to matters and details which are better left to be decided by the citizens themselves, or by their local political councils.
It remains to be seen whether this is a lesson shared by the powers that be in Paris, Berlin, Moscow, Washington, Berne and elsewhere. Notably in the cases of the recently rediscovered treaty-based and court-supported French free zones surrounding Geneva, the related Kaliningrad Oblast with its U.S. co-signed Memel Convention, and the Russian-Swiss Commerce treaty of 1873, all of which avail themselves for promising diplomatic initiatives based on imaginative use of forgotten treaties. And whether the politicians in these and other capitals will recognize the social, political and economic imperatives to develop and implement pro-growth and pro-enterprise - if not hassle-free - policies and administrative pilot regions, e.g. in and around Geneva, on the basis of the related Free Zones Treaties the French citizens, in extremis, have now saved from oblivion with their commendable verdict against the Eurocrats' self-serving constitution. Which, of course, requires genuine leaders to look and grow beyond the excuses supplied by their subordinates for continuing on the worn-out tracks. They are called upon to live up to the unique opportunities handed to them by fed-up citizens everywhere. And to take a new look at the joint oeuvre of Aristide Briand and Gustav Stresemann, as pointed at by General de Gaulle and Presidents François Mitterrand and Vaclav Havel in their visions about a European Confederation. In short: give Europe back to its only sovereigns, i.e. its citizens!
Trade Act of 2002
Division B - Bipartisan Trade Promotion Authority
Title XXI (sic): Trade Promotion Authority - Bipartisan Trade Promotion Authority Act of 2002
Section 2102 -
Sets forth the overall trade negotiating objectives of the United States for trade agreements (generally similar to the objectives of the Omnibus Trade and Competitiveness Act of 1988 (OTCA)), including to: (1) further strengthen the system of international trading disciplines and procedures, including dispute settlement; (2) foster economic growth, raise living standards, and promote full employment in the United States and to enhance the global economy; (3) ensure that trade and environmental policies are mutually supportive and seek to protect and preserve the environment, while optimizing the use of the world's resources; (4) promote respect for worker rights and the rights of children consistent with core labor standards of the International Labor Organization (ILO) and an understanding of the relationship between trade and worker rights; (5) seek provisions in trade agreements under which the parties strive to ensure that they do not weaken or reduce the protections afforded in domestic environmental and labor laws as an encouragement for trade; (6) ensure that trade agreements afford small businesses equal access to international markets, equitable trade benefits, expanded export market opportunities, and provide for the reduction or elimination of trade barriers that disproportionately affect small business; and (7) promote universal ratification and full compliance with ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor.
Sets forth the principal U.S. negotiating objectives (generally similar to the principal OTCA negotiating objectives) regarding trade barriers and other trade distortions, trade in services, foreign investment, intellectual property, transparency, anti-corruption, improvement of the World Trade Organization (WTO) and other multilateral and bilateral trade agreements, foreign regulatory practices, electronic commerce, reciprocal trade in agriculture, labor and the environment, dispute settlement and enforcement of trade agreements, WTO extended negotiations, trade remedy laws, border taxes, textile negotiations, and trade-related aspects of the worst forms of child labor.
Directs the President, to promote U.S. competitiveness in the global economy, to give priority to certain actions, including: (1) seeking greater cooperation between the WTO and the ILO; (2) seeking to establish consultative mechanisms among parties to trade agreements to achieve specified objectives; (3) conducting environmental reviews of future trade and investment agreements; (4) reviewing the impact of future trade agreements on U.S. employment, including labor markets; (5) taking into account other specified legitimate U.S. domestic objectives; (6) reporting to specified congressional committees on labor rights and exploitative child labor in the country or countries with respect to which the President is negotiating; (7) promoting consideration of multilateral environmental agreements; and (8) reporting to specified congressional committees on the effectiveness of penalties or remedies applied under Federal law in enforcing U.S. rights under trade agreements.
Requires the United States Trade Representative (USTR) to consult closely with Congress during trade negotiations.
Section 2103 -
Sets forth the authority of the President (generally similar to the authority under OTCA) to enter into trade agreements with foreign countries regarding tariff and non-tariff barriers.
States that a trade agreement may be entered into (before June 1, 2005, or if trade authorities procedures (or fast-track procedures) are extended under this Act, before June 1, 2007) only if it makes progress in meeting the overall and principal trade negotiating objectives, and the President satisfies certain notification and consultation requirements set forth in this Act, including submission of the agreement for assessment by the International Trade Commission (ITC).
Applies trade authorities procedures to bills implementing trade agreements if they consist of: (1) a provision approving a trade agreement entered into under this Act, and approving any statement of administrative action; and (2) if changes in existing laws or new statutory authority are required to implement such agreements, provisions necessary to implement them, either repealing or amending existing laws or providing new statutory law.
THE PRESIDENT: Well, thank you all very much for that warm welcome. Welcome to the people's house, as we celebrate a victory for the American economy. Last week, the United States Congress passed trade promotion authority and renewed an expanded the Andean Trade Preference Act.
Trade is an important source of good jobs for our workers and a source of higher growth for our economy. Trade is an important source of earnings for our farmers and for our factories. It creates new opportunities for our entrepreneurs. Trade expands choices for America's consumers and raises living standards for our families. And now, after eight years, America is back in the business of promoting open trade to build our prosperity and to spur economic growth.
I appreciate so very much Vice President Cheney's hard work on this issue. I appreciate Colin Powell and Ann Veneman, who ably serve in my Cabinet. I want to particularly thank Don Evans, who's not with us, and Bob Zoellick, members of my Cabinet who both worked tirelessly to get the vote in the House and then in the Senate. And I appreciate Elaine Chao as well. These Cabinet secretaries worked hard for trade. They understand the promise of trade, and I appreciate their hard work on behalf of American workers and farmers.
I particularly want to thank the members of Congress who are here with us, starting with the Chairman of the Senate Finance Committee, the senator from Montana, Max Baucus. Max did fantastic work to get this trade bill through the Senate. And was then able to work with Chairman Thomas. (Laughter and applause.) Chairman Thomas was heroic in the House. He was steadfast in his support for trade and I appreciate his leadership on this issue. And I want to thank both members of the United States Congress, one Democrat, one Republican, who put their country ahead of their parties to do what was right for the people of this country. You two deserve a lot of congratulations. (Applause.) I want to thank Senator Hatch, who was a conferee and a member of the Finance Committee. Thanks for coming, Senator. I want to thank my fellow Texan, Tom DeLay, the best vote-counter in the history of the United States Congress. (Laughter and applause.) After all, he was able to triple -- (laughter) -- the vote margin on final passage.
I appreciate so very much Cal Dooley, and a guy I call "Jeff", William Jefferson, Congressmen from California and Louisiana. And I want to thank them for their work as well. They led the Democrats in the House of Representatives, many of whom are here today, to do what's right for our country. And again, I appreciate your leadership and I appreciate your work and I appreciate your help. (Applause.)
I want to thank Embajadora A-Baki from Ecuador. I want to thank you for coming. I also want to thank Carlos Alzamora from Peru, and all the other ambassadors who are here. I want to appreciate you -- appreciate your hard work on sending the message of trade to members of our Congress. I want to thank you for your diligence, and I want to thank your Presidents for their care and concern about this incredibly important initiative -- not only for Americans, but for workers all around the world. Thank you all for coming. (Applause.)
With trade promotion authority, the trade agreements I negotiate will have an up-or-down vote in Congress, giving other countries the confidence to negotiate with us. Five Presidents before me had this advantage, but since the authority elapsed in 1994, other nations and regions have pursued new trade agreements while America's trade policy was stuck in park.
With each passing day, America has lost trading opportunities, and the jobs and earnings that go with them. Starting now, America is back at the bargaining table in full force. (Applause.) I will use trade promotion authority aggressively to create more good jobs for American workers, more exports for American farmers, and higher living standards for American families. Free trade has a proven track record for spurring growth and advancing opportunity for our working families.
Exports accounted for roughly one-quarter of all U.S. economic growth in the 1990s. Jobs in exporting plants pay wages that are up to 18 percent higher than jobs in non-exporting plants. And our two major trade agreements, NAFTA and the Uruguay Round, have created more choices and lower prices for consumers, while raising standards of living for the typical American family of four by $2,000 a year. America will build on this record of success. A completely free global market for agricultural products, for example, would result in gains of as much as $13 billion a year for American farmers and consumers. Lowering global trade barriers on all products and services by even one-third could boost the U.S. economy by $177 billion a year, and raise living standards for the average family by $2,500 annually.
In other words, trade is good for the American people. And I'm going to use the trade promotion authority to bring these benefits to the American people. Free trade is also a proven strategy for building global prosperity and adding to the momentum of political freedom. Trade is an engine of economic growth. It uses the power of markets to meet the needs of the poor. In our lifetime, trade has helped lift millions of people, and whole nations, and entire regions, out of poverty and put them on the path to prosperity.
History shows that as nations become more prosperous, their citizens will demand, and can afford, a cleaner environment. And greater freedom for commerce across the borders eventually leads to greater freedom for citizens within the borders. The members of the diplomatic corps with us today understand the importance of free trade to their nations' success. They understand that trade is an enemy of poverty, and a friend of liberty. I want to thank the ambassadors for their role in getting this bill passed, especially the Andean ambassadors who are such strong advocates for the Andean Trade Preference Act. By providing trade preference for products from four Andean democracies, we will build prosperity, reduce poverty, strengthen democracy, and fight illegal drugs with expanding economic opportunity.
Trade promotion authority gives the United States an important tool to break down trade barriers with all countries. We'll move quickly to build free trade relationships with individual nations, such as Chile and Singapore and Morocco. We'll explore free trade relationships with others, such as Australia. The United States will negotiate a Free Trade Area of the Americas, and pursue regional agreements with the nations of Central America and the Southern Africa Customs Union.
We'll move forward globally, working with all nations to make the negotiations begun last year in Doha a success. A little more than a week ago, the United States put forward a far-reaching proposal to lower worldwide agricultural trade barriers. These innovative set of ideas can lead to real progress in this challenging area.
all nations the hope of sharing in the great economic, and social, and
political progress of our age. And trade will give American workers the
hope that comes from better and higher-paying jobs. America's committed
to building a world that trades in freedom and grows in prosperity and
liberty. Today, we have the tools to pursue that vision, and I look forward
to the work ahead. And now it's my honor and pleasure to sign into law
the Trade Act of 2002. (Applause.)
(The bill is signed.) (Applause.) END 12:11 P.M. EDT
The Brookings Institution June 7, 2005
POLICY BRIEF #91
Track Trade Promotion Authority
by Lael Brainard and Hal Shapiro
Fast track trade promotion authority has become the premier legislative
vehicle for airing America's ambivalence about trade and globalization.
Opponents decry fast track as a blank check to pursue trade agreements
that undermine hard won social and environmental protections.
Proponents portray fast track as a litmus test of America's international
leadership. Fast track was intended to be neither. It was conceived as a
procedural mechanism to enhance the president's credibility in negotiating
complex multilateral trade agreements by streamlining the congressional
approval process in return for enhanced congressional oversight.
Fast track's power derives from the underlying political compact between
Congress and the president rather than its statutory guarantees, which
are technically fragile. The convention of legislating an open-ended,
time-limited grant of authority invites a regular, heated debate in the
abstract over whether trade is good or bad and the relationship between
trade and labor and environmental standards. This approach has led to
eight years of stalemate and is polarizing the debate over the upcoming
vote in the House. Far better to weigh the concrete benefits and costs in
the context of specific agreements. The current impasse can be overcome
through three procedural fixes: strengthening congressional input on trade
negotiations, limiting the application of fast track to only those
agreements whose complexity and scope warrant it, and targeting the
congressional grant of authority and associated substantive guidance to
particular agreements. Such procedural questions would likely be at the
heart of any Senate debate.
POLICY BRIEF #91
President Bush has signaled that fast track, or trade promotion authority,
is his top legislative trade priority. Fast track has become the Moby Dick
of American trade politics. Since it was last in effect, presidents and trade
supporters have expended enormous political capital pursuing the great
white whale, and the hunt for this elusive quarry at times has come close
to capsizing the ship of American trade policy.
But is fast track the prize that its proponents claim it to be? Would its
reenactment indeed bridge the chasm on trade? Or is the protracted stalemate a
symptom of a more profound divide in American public opinion? The answers
lie somewhere in the middle. Fast track is important precisely because it has
become a political symbol of America's commitment to free trade. Some trading
partners now claim they are reluctant to enter into trade negotiations with the
United States without fast track. This perception, however, stands in stark
contrast to what fast track, as legislation, actually does. Fast track, originally
conceived as a relatively narrow, procedural measure, did not authorize any
agreements the president could not negotiate under his own constitutional
powers, require inclusion of any specific provisions in any agreements, or
guarantee ratification of any agreements. From a legal point of view, fast track is
a highly conditional grant of authority.
Fast Track's Origins
Fast track is the product of many years of rebalancing the responsibilities
legislative and executive branches on international trade policy. Prior to the
twentieth century, regulation of foreign commerce was almost exclusively a
congressional prerogative. Tariffs were considered to be more a function of
domestic tax policy than of foreign affairs and, as such, were subject to change
only by an act of Congress. The president's main responsibilities on trade were
to collect the tariffs set by Congress and to negotiate bilateral Treaties of
Friendship, Commerce, and Navigation, which extended to treaty partners the
most favorable tariff rates available.
Recognition of the damage done by high tariffs around the world in the
the Great Depression marked a major change in U.S. trade policy. The landmark
Trade Act of 1934 effectively "pre-approved" presidential authority to lower
U.S. tariffs within certain limits by authorizing the president to enter into
reciprocal tariff-reduction agreements. The law was extended 11 times through
Congress again expanded the president's authority in the Trade Act of 1962,
authorizing the elimination of certain U.S. tariffs in the Kennedy Round of
negotiations under the General Agreement on Tariffs and Trade (GATT). But
authority was conditioned on enhanced congressional oversight and required
the president to provide Congress with copies of agreements and the rationale
for entering into them, and to accredit four members of Congress as part of the
U.S. negotiating delegation. The Kennedy Round concluded successfully in
1967 with an array of tariff-reduction commitments, but also included two
controversial "non-tariff" agreements governing antidumping and customs
valuation, prompting some lawmakers to conclude that the president had
overstepped his authority.
As a result, when Congress considered a new grant of authority for the
Tokyo Round, it decided to maintain final control over non-tariff agreements. In
the 1974 Trade Act, Congress mandated that non-tariff agreements be
implemented only through legislation, and that the president consult with
Congress prior to entering into them. In return, to reassure trading partners and
enhance the credibility of U.S. negotiators, Congress established new
procedures to ensure a timely, amendment-free vote. Thus was fast track born.
How Fast Track Works
The provisions of past fast track laws can be loosely divided into three
Congressional Oversight Procedures establish requirements the president
meet for fast track to apply. They enumerate overall trade negotiating objectives
and industry- or issue-specific principal trade negotiating objectives that
Congress expects U.S. negotiators to pursue. The principal objectives have
changed over time to reflect evolving congressional priorities and are the focus
of the current debate over labor and environmental standards. The oversight
provisions also require the president to provide Congress with: notice before
entering into negotiations or signing an agreement, prompt transmittal of the
text of a proposed agreement, a statement certifying that the agreement
advances Congress's objectives, and an implementing bill as the vehicle for
Congress to codify an agreement under U.S. law.
Fast Track Legislative Procedures establish limitations on Congress, ensuring
a streamlined legislative process. It requires introduction of the implementing
bill in both houses of Congress, referral to relevant committees (at minimum the
House Ways and Means and Senate Finance Committees), and automatic
discharge after 45 legislative days if the bill has not been reported out of the
committees. Fast track permits no amendments to the implementing bill and
limits floor debate to 20 hours in each chamber. It requires a timely vote on the
implementing bill in the House and Senate no more than 15 legislative days after
leaving committee and ensures no conference committee, since both chambers
vote on the same implementing bill.
Methods of Withdrawing Fast Track allow Congress (or one house or a
committee) to withdraw fast track from a trade agreement. Fast track can be
withheld if there is a failure to meet the notice, consultation, transmittal, and
implementing bill conditions described above. This may occur if a majority in
both houses passes, within 60 days of each other, a procedural disapproval
resolution on the basis of a failure to consult, which provides ample
congressional discretion. The "gatekeeper" committee provision permits either
the House Ways and Means or Senate Finance Committees to deny fast track
application to a bilateral or regional agreement by voting a disapproval
resolution within 60 days of the president indicating his intention to enter into
negotiations. Fast track can be withdrawn outright at any time through
unicameral repeal because it is considered an exercise of the House and Senate's
rulemaking power. Finally, sunset and extension provisions have limited fast
track's duration to five years. The most recent fast track legislation to be
enacted, part of the 1988 Omnibus Trade Act, was more restrictive, providing a
renewal for only three years, with a two-year extension subject to an extension
disapproval resolution by either chamber.
The withdrawal provisions, seldom used, make fast track a highly fragile
easily retractable mechanism from a technical standpoint and underscore that
the power of fast track in practice derives from the underlying political compact
between Congress and the president. If the president appeared to violate
congressional intent in negotiating an agreement, the withdrawal mechanisms
could be triggered, sounding the death knell not only for fast-track review but
likely also for the agreement itself.
Uses of Fast Track
Despite its symbolic significance, fast track was invoked only five times
the 20 years it was in effect for a small minority of U.S. trade agreements (see
figure 1). If the bulk of U.S. trade agreements can be implemented without fast
track, it raises the question of whether fast track is necessary at all. Fast track
agreements are not distinguished from other trade agreements by their size,
complexity, or importance. For example, the bilateral agreement on China's
accession to the World Trade Organization, implemented without fast track, will
affect far more trade than has the U.S.-Israel free trade agreement (FTA). Rather,
what most distinguishes fast track agreements is the extent to which changes to
U.S. law are required and to which Congress expects to be involved. But even
this distinction, while broadly true, is qualified. For instance, the U.S.-Israel FTA
was approved under fast track procedures while the nearly identical U.S.-Jordan
FTA was not. This suggests there is a political overlay to these distinctions.
A Prescription for Progress
The fast track stalemate revolves around two central issues. Most attention
devoted to whether Congress can reach political accommodation on the
substantive guidance it gives the president regarding the content of trade
agreements&151;particularly on labor and environmental standards. The second
issue is how to facilitate a productive relationship between Congress and the
president in advancing America's trade interests. The second issue deserves
more attention than it has received and likely will be central to any Senate
Procedurally, fast track can serve valuable purposes. America's negotiating
position is stronger when foreign governments are assured that complex trade
agreements requiring extensive changes to U.S. laws will be given a fast
up-or-down vote, and that meaningful congressional input will help shape
agreements that have a better chance of commanding domestic support.
Is the current form of fast track the best way of doing this? The answer
certainly not. The main problem is the abstract nature of the fast track debate.
Asking Congress for an open-ended grant of authority to pursue trade
agreements whose benefits are as yet undefined and far into the future is a
recipe for trouble. A powerful coalition of opponents has repeatedly mobilized
effectively to thwart fast track legislation. But supporters mount a full
counter-offensive only when there are concrete benefits in the offing. For
example, in 1997 and 1998, with no trade agreement pending, fast track failed in
the House, but in 1994, when the hard won gains of the Uruguay Round hung in
the balance, the House voted overwhelmingly to approve it, with the support of
nearly 60 percent of Democrats.
Neither the president nor Congress nor the American people benefit from
recurring debate. In seeking fast track, the president is inevitably compelled to
make the case that it is vital to his ability to negotiate on trade. This gives
foreign trade partners the perfect excuse to blame failure on the president's lack
of authority from Congress. And the succession of failed votes has put
members of Congress in the no-win position of being forced to declare every
few years whether, in the abstract, they are for or against trade.
It is counterproductive to turn fast track into a quest in its own right.
key is to find a pragmatic mechanism for negotiating and expeditiously
implementing strong trade agreements. Is there a way to achieve a balance
between enhanced congressional oversight and congressional procedural
restraint without inviting the protracted stalemate seen for the past eight years?
The answer is almost surely yes. A more effective fast track would require
meaningful congressional input into negotiations, more selective application of
fast track by the president, and closer targeting of fast-track provisions to
A. Enhanced Consultations
Congressional input and oversight on trade negotiations is accomplished
in part through the negotiating objectives. It is difficult not only to draft precise
negotiating objectives in advance that could apply to very different agreements
over several years, but also to evaluate after the fact whether the objectives
have been adequately advanced for purposes of disapproval. In fact, there have
been only two cases of a concerted effort to disapprove fast track for an
agreement, suggesting the disapproval mechanisms are a fallback check rather
than the first line of defense against the president's ability to secure fast track
consideration of a controversial agreement.
In practice, although
draw much of the fire and
fury in the fast track
debate, far more
important are mechanisms
consultations between the
president and key
members of Congress
Former fast track rules
were vague as to the
extent, frequency, and
timing of consultations.
That must change.
should provide for:
The chairs of the
Ways and Means and Finance Committees to establish detailed
schedules and topics for consultations, which would intensify during
More formalized reporting and assessment of whether the executive
branch is working in good faith to develop a negotiating strategy in line
with congressional guidance
The congressional trade advisers—called for under prior fast-track
laws—to be required to consult regularly with the majority and minority
leadership in both chambers and all committees having relevant
jurisdiction to ensure broader congressional input
Congressional advisers to be responsible for providing the president
and U.S. negotiators with the sense of the Congress on the state of
Members charged with oversight to devote adequate time, attention,
staff, and resources to track negotiations that may involve thousands of
products and more than a hundred countries
In addition, the creation of a nonpartisan group of professional congressional
staff dedicated to trade would help make congressional oversight meaningful.
Members now are highly dependent on the executive branch, the International
Trade Commission, and the Government Accounting Office for analysis of trade.
Greater in-house expertise would allow Congress to formulate innovative
positions and provide relevant input as negotiations proceed, reducing the need
to legislate detailed negotiating instructions in the abstract.
B. More Selective Use of Fast Track
Since 1999, the U.S. Congress has enacted six pieces of trade legislation
absence of fast track authority. Moreover, the U.S.-Jordan FTA faced no
attempt to introduce amendments despite being approved without fast track. In
addition, a growing number of countries, including Chile, Singapore, and
Australia, have indicated a willingness to negotiate free trade agreements with
the United States without the safety net of fast track. This record suggests there
is greater scope to secure approval of trade agreements without fast track than
is generally acknowledged, and that the president could be more selective in the
agreements for which he seeks fast track. Only those agreements that require
extensive changes to U.S. laws and involve multiple partners—such as the
global trade negotiations launched this month in Doha—hinge centrally on fast
track procedures. Since such agreements are rare, important, and years in the
making, it is reasonable for Congress to expect the president to provide specific
information in advance on how the authority will be used. Perhaps the Bush
administration erred in immediately making broad trade promotion authority its
top priority, rather than first putting its own stamp on the trade agenda,
specifying a limited set of agreements that would need fast track, and ensuring
these initiatives were ripe for congressional scrutiny.
Presidents would be well advised to postpone seeking fast track until a
compelling case can be made that contemplated negotiations will yield
agreements of sufficient complexity and scope to necessitate fast track.
Conversely, the president should continue to seek—and Congress should
continue to grant—fast track authority for particular agreements that truly merit
it. It would be extremely detrimental to U.S. leadership if the current impasse
continued, encouraging negotiation of only those agreements that are
sufficiently uncontroversial that they would not risk being picked apart by
Congress under normal procedures.
C. Congressional Oversight: Targeted Fast Track
The biggest challenge is to strike a better balance on fast track oversight
provisions. In principle, Congress has the authority to withhold fast track
treatment on the simple grounds of "failure to consult." But in practice,
although Congress has repeatedly failed to grant approval for renewal of
general fast track authority, it has never withheld fast track procedures on a
pending agreement. This suggests that Congress is more uneasy providing
broad authority that could be used in unanticipated circumstances than with the
actual agreements that have been submitted for consideration. As long as fast
track must be defended on the basis of the worst agreement that might be
submitted, reenactment will remain difficult.
But critics are incorrect in assuming that fast track is a blank check.
Finance Committee wrested major concessions before permitting negotiations
with Canada to proceed, and although resolutions disapproving NAFTA failed
in committee, the underlying concerns were addressed in the negotiating
endgame. These are only the most extreme examples of the president making
accommodations to overcome congressional opposition; cases where course
corrections preempted incipient congressional action are likely far more
There is an inherent tension between making fast track sufficiently flexible
apply to a broad variety of potential agreements and sufficiently precise to
convey the substantive expectations of an often divided Congress. Mandate
too much detail and fast track applies a one-size-fits-all approach to widely
diverse agreements, forcing Congress into a contentious and often paralytic
debate over the abstract dimensions of trade. But fast track without details and
precision inevitably runs the risk of abdicating congressional oversight.
Currently, this is most apparent in the debate over labor and environmental
standards. The treatment of these issues conveys an important political
statement, determining their priority. But it is unclear that a workable paradigm
for these complex matters can be neatly inserted into a fast track law designed to
cover a wide array of agreements and countries where levels of development
and commitment to social and environmental protections vary widely.
Striking the right balance hinges on the interaction of several provisions
track: the duration, the scope, the precision of the negotiating direction given to
the president, and the mechanisms for withholding fast track treatment from a
particular agreement. There are likely to be several different combinations that
could be comparably effective in more closely targeting the substantive debate
to particular agreements, while retaining the procedural value of greater
cooperation between the branches.
One alternative would be to make each grant of authority specific to the
negotiation of a particular agreement and the duration coterminous with the
length of the negotiation. This would permit much more precision in the
negotiating objectives. It would also allow Congress to confine debate to the
potential merits of a particular trade agreement. However, it might prove overly
restrictive, unintentionally signaling that the president does not have the
authority to enter into any launch of negotiations until after congressional
approval had been obtained.
At the other end of the spectrum, Congress could establish fast track procedural
mechanisms for a longer duration or even indefinitely, but require an additional
hurdle for the application of the procedures to a particular agreement. This
would push the president to consult Congress at the start of (or early in)
negotiations, and it would permit Congress to establish more specific
negotiating objectives for each agreement than is possible in omnibus fast-track
legislation. Congress could further hone the balance by specifying whether the
application to a specific agreement would require a vote by only the
"gatekeeper" committees or set a more difficult threshold of floor action, and
whether it would require a vote of approval or the easier standard of
withstanding possible congressional disapproval. The degree of congressional
oversight afforded by the hurdle for application to particular trade negotiations
could be made directly proportional to the overarching authority granted the
president by Congress.
Providing Congress with strengthened oversight on specific agreements in
return for a more durable procedural agreement between Congress and the
president would go a long way toward breaking the unproductive stalemate that
has characterized the last several years.
Lael Brainard is a senior fellow and the New Century Chair at the
Hal Shapiro is a partner in the international trade practice of Miller