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Trade Promotion Authority on Slow Track to Renewal

The president’s “trade promotion authority” (aka “fast-track”) expires at the end of next month, raising concerns about getting the sluggish Doha round of world trade talks back on track and about prospects for future bilateral free-trade agreements. [IMGCAP(1)]

The Bush administration claims that if the United States doesn’t have fast-track authority, countries will be reluctant to negotiate trade deals with us for fear Congress will end up drastically altering the agreements with amendments. Congressional Democrats, however, have been on a deliberate slow track to renewal in hopes of leveraging the pressures of deadline to obtain administration concessions that were not directly in play when Republicans ruled Capitol Hill.

The new kings of the Hill on trade, House Ways and Means Chairman Charlie Rangel (D-N.Y.) and Senate Finance Chairman Max Baucus (D-Mont.), are treading a fine line between anti-trade Democratic Caucus members and America’s international economic interests. Central to the success of this high-wire balancing act will be their ability to tie negotiating authority to certain labor protection for workers in our potential trading partners. The administration and Congress are now close to finalizing a deal on those conditions (at least for bilateral agreements), drawing on the 1998 International Labor Organization’s Declaration on Fundamental Principles and Rights at Work (which the U.S. has endorsed).

I have to confess that when so-called fast-track trade negotiating authority was first introduced into our political lexicon and statute books with the 1974 Trade Act, I thought the whole thing was a bit of a sham. Why would the president need special permission from Congress to enter into trade agreements when he is already empowered by the Constitution to make treaties with other nations, including trade treaties? To me, the new “authority” simply was a procedural device to substitute a two-chamber majority vote for the higher threshold of a two-thirds Senate vote to ratify a treaty, while still retaining the advantage of an up-or-down vote on a non-amendable proposition.

Even the term “fast-track trade negotiating authority” struck me as a misnomer since nothing in the act accelerates the pace of negotiations. Instead, what is being put on a fast track is the consideration by Congress of trade agreements once they are submitted by the president. Congress is given 90 legislative days for committee and floor action, using expedited procedures that bar amendments and restrict debate time.

However, I was overlooking one tiny little clause in the Constitution that gives Congress the power “to regulate commerce with foreign nations.” That means Congress must delegate that power to the president if any resulting trade agreements are to have formal status. As then-U.S. Trade Representative Robert Zoellick put it back in 2003, “under our Constitution the authority over trade belongs with the Congress. We have to borrow that authority and we have to give it back now and then.”

That’s exactly what happened in 1994 when fast-track authority last expired. Presidents and their trade representatives had to learn to operate without it until it was renewed in 2002. If the president negotiates a trade deal with another country without the statutory delegation from Congress, then anything he submits to the Hill will carry all the weight of the paper it is written on. It’s just another legislative message that Congress can amend beyond all recognition or ignore altogether.

It’s understandable, then, why presidents eagerly seek this special authority. What is difficult to understand is why Congress would want to give up its legislative prerogatives and defer to the president’s judgment on what’s best for the country. The short answer is, it really doesn’t.

First, in negotiating the renewal of fast-track, Congress usually places preconditions or parameters on the president’s negotiating authority, just as it is now attempting with certain labor, environmental and pharmaceutical standards. Second, before the president formally submits his implementation bill to Congress, the committees of jurisdiction conduct “mock markup” sessions on his draft bill. This is a faux hearing/deliberation exercise in which Members debate and vote on nonbinding amendments to the president’s bill — a process you will not find in House or Senate rules or in statute. Consequently, when the president makes his formal submission, the measure already has been vetted by committees.

That does not guarantee majority acceptance of the legislation by the full House and Senate. But it does enhance its chances if Members know their committees have had an input into the final product. Ongoing consultation between the branches through a statutory Congressional Oversight Group, both during and following the negotiations, is critical to the success of this hybrid treaty/lawmaking process.

Today, negotiations between the branches over delegating trade negotiating authority are just as delicate and contentious as ever — perhaps more so given the impact of the trade issue on last year’s elections and its likely persistence in 2008. Nevertheless, this is one area in which divided government may have forced both parties to seek compromise for the good of the country. Both branches are finding common ground as “fair traders.” What that term means, of course, is in the eyes of the beholder. When crunch time comes, though, it will be “ayes” that determine the fate of fast-track renewal as well as the shape of future trade agreements.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.

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