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.

Trade gives 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

http://www.brookings.edu/comm/policybriefs/pb91.htm
The Brookings Institution   June 7, 2005
POLICY BRIEF #91

            Fast Track Trade Promotion Authority
                     by Lael Brainard and Hal Shapiro
                     December 2001

                       ABSTRACT

                     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
 

                     The Debate

                     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 of the
                     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 wake of
                     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
                     1962.

                     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 GATT
                     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
                     categories:

                     Congressional Oversight Procedures establish requirements the president must
                     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 and
                     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 during
                     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 is
                     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
                     debate.

                     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 is almost
                     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 this
                     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. Rather, the
                     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
                     particular agreements.

                     A. Enhanced Consultations

                     Congressional input and oversight on trade negotiations is accomplished only
                     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
                     negotiating objectives
                     draw much of the fire and
                     fury in the fast track
                     debate, far more
                     important are mechanisms
                     ensuring meaningful
                     consultations between the
                     president and key
                     members of Congress
                     during negotiations.
                     Former fast track rules
                     were vague as to the
                     extent, frequency, and
                     timing of consultations.
                     That must change.
                     Strengthened procedures
                     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
                          critical junctures
                          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
                          negotiations
                          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 in the
                     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. The Senate
                     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
                     common.

                     There is an inherent tension between making fast track sufficiently flexible to
                     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 of fast
                     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
                     Brookings Institution.

                     Hal Shapiro is a partner in the international trade practice of Miller
                     and Chevalier.