What’s Wrong with the Wyden-Hatch Fast Track Bill — The Specifics
by Gaius Publius
When we first reported on the introduction of Fast Track legislation — the bill that makes it possible for Obama and corporate Congress men and women to pass TPP, the next NAFTA-style “trade” agreement, by neutering Congress’ role in the process — we said that the new bill was being analyzed.
That analysis is done, and the results are in. This version of Fast Track is worse than the last version, a bill which failed to pass Congress in 2014. Here are the specifics (pdf) via Lori Wallach at Public Citizen, the go-to person for “trade” analysis. I’m going to focus on the main problems so you’re not overwhelmed with detail. Your take-aways:
- What was bad in the prior agreement is worse, despite Wyden’s intervention.
- Every attempt in the bill to make TPP conform to mandated worker, environmental and currency protections is unenforceable.
Note that the bill failed to attract a single Democratic co-sponsor in the House. This is not a bipartisan bill; it’s a Wyden-plus-Republicans bill, at least so far. Wallach starts (my emphasis everywhere):
The trade authority bill introduced today would revive the controversial Fast Track procedures to which which nearly all U.S. House of Representatives Democrats and a sizable bloc of House Republicans already have announced opposition. Most of the text of this bill replicates word-for-word the text of the 2014 Fast Track bill, which itself replicated much of the 2002 Fast Track bill. Public Citizen calls on Congress to again oppose the outdated, anti-democratic Fast Track authority as a first step to replacing decades of “trade” policy that has led to the loss of millions of middle-class jobs and the rollback of critical public interest safeguards.
In the past 21 years, Fast Track authority has been authorized only once by Congress – from 2002 to 2007. In 1998, the U.S. House of Representatives voted down Fast Track for President Bill Clinton, with 71 GOP members joining 171 House Democrats.
Click through in the first paragraph to see the extent of the declared opposition in Congress. There is considerable undeclared opposition as well, hidden in the “not sure” statements of members, especially Republicans.
Now some of what’s wrong. (For a side-by-side comparison of this Fast Track bill with the failed last one, click here; it’s enlightening. Hardly anything changed.)
Fast Track Grants “Trade Authority” to the Next President As Well
Wallach, from the Public Citizen press release:
Today’s bill explicitly grandfathers in Fast Track coverage for the almost-completed Trans-Pacific Partnership (TPP) and would extend Fast Track procedures for three to six years. …
“Congress is being asked to delegate away its constitutional trade authority over the TPP, even after the administration ignored bicameral, bipartisan demands about the agreement’s terms, and then also grant blank-check authority to whomever may be the next president for any agreements he or she may pursue,” said Lori Wallach, director of Public Citizen’s Global Trade Watch.
Not a small issue for a Republican-dominated Congress facing Hillary Clinton as the likely next Democratic nominee.
The Bill Makes Congress’ Declared “Negotiating Objectives” Unenforceable
Wallach:
The trade authority proposal does not require negotiators to actually meet Congress’ negotiating objectives in order to obtain the Fast Track privileges, making the bill’s negotiating objectives entirely unenforceable. …
Today’s bill would empower the executive branch to unilaterally select partner countries for a trade pact, determine an agreement’s contents through the negotiating process, and then sign and enter into an agreement – all before Congress voted to approve a trade pact’s contents, regardless of whether a pact met Congress’ negotiating objectives [as promised in the Fast Track bill.]
Under this Fast Track bill, this president and the next one can sign any agreement she or he wishes with anyone she or he wishes, containing any provisions she or he wishes, regardless of what Congress declares as its “negotiating objectives.” Then that trade bill would come before Congress for an up-or-down vote. The bill would also:
Require votes in both the House and Senate within 90 days, forbidding any amendments and limiting debate to 20 hours, whether or not Congress’ negotiating objectives were met.
More:
The Hatch bill includes several negotiating objectives not found in the 2002 Fast Track authority, most of which were also in the 2014 bill. However, the Fast Track process that the legislation would re-establish ensures that these negotiating objectives are entirely unenforceable. Whether or not Congress’ negotiating objectives are met, the president could sign a pact before Congress approves it and obtain a yes or no vote in 90 days.
Is the unenforceability of these “objectives” an accident or a feature? From Obama’s point of view (and Hillary Clinton’s?) it has to be a feature, since it enshrines executive power. One doesn’t usually neuter your opponents in a knock-down drag-out fight by accident. That tends to be the goal.
Keep this in mind — nothing any progressive cares about will be allowed in a Fast-Tracked trade bill. When some corporate Democrat talks about how this Fast Track bill puts requirements on the administration in areas like environmental protection, labor practices (including union-busting and even –murdering), and currency manipulation, just say, “Read the language; isn’t gonna happen.” Those “requirements” do not have to be met under this law.
About Currency Manipulation “Rules”
Wallach says that even if the currency manipulation requirements were enforceable (and they’re not), that enforcement would change nothing.
Some of the Hatch bill negotiating objectives advertised as “new” are in fact identical to what was in the 2014 bill and were referenced in the 2002 Fast Track. For example, the 2002 Fast Track included currency measures: “seek to establish consultative mechanisms among parties to trade agreements to examine the trade consequences of significant and unanticipated currency movements and to scrutinize whether a foreign government engaged in a pattern of manipulating its currency to promote a competitive advantage in international trade.” (19 USC 3802(c)(12)) The so-called “new” text in the Hatch bill repeats word-for-word what was in the 2014 Fast Track bill: “The principal negotiating objective of the United States with respect to currency practices is that parties to a trade agreement with the United States avoid manipulating exchange rates in order to prevent effective balance of payments adjustment or to gain an unfair competitive advantage over other parties to the agreement, such as through cooperative mechanisms, enforceable rules, reporting, monitoring, transparency, or other means, as appropriate.”
Parties to the agreement should “avoid” manipulating exchange rates? As Wallach points out:
Even if Congress had the power to ensure that this negotiating objective was met, the language of this negotiating objective itself does not require enforceable disciplines on currency manipulation to be included in the TPP or other deals obtaining Fast Track treatment. Despite the requests from bipartisan majorities of both houses of Congress that enforceable currency manipulation disciplines be included in the TPP, the Hatch negotiating objective lists “enforceable rules” as just one approach among several non-binding options for the TPP and other Fast Tracked deals.
Not much currency protection there, but again, if CEOs want to make a ton of money manufacturing in and trading with China and its subsidiaries in TPP countries, they have to play ball the Chinese way. So despite “tough” language, that currency manipulation is here until the Chinese, and only they, decide to change their policy. It’s the cost of doing business there — a cost, I’ll add, only the consumer pays. The profit goes straight to the CEO class bottom line.
One more point about that currency manipulation — there’s talk that even the administration won’t risk a confrontation on that score. One method of retaliation would be for the Chinese to not show up for the next Treasury auction, throwing a big wrench into U.S. interest rates. This is a complex subject — is the existence of Chinese-bought, zero-interest-paying U.S. Treasury bonds a form of ownership (by the Chinese) or a form of tribute paid by the Chinese to the U.S.?
Consider that last point carefully. David Graeber makes it in his great book, Debt: The First Five Thousand Years. One way ancient emperors ruled the provinces (and ripped them off) was to force them to buy his debt. In the ancient world, that was called “tribute.”
As long as the U.S. holds the eventual military cards, “tribute” is likely what the U.S. sees when it sees foreign purchase of its bonds. My suggestion: Start to worry when that military balance shifts. My other suggestion: None of that shift will occur before climate change starts to devastate and deconstruct both nations. At that point, currency manipulation will be moot, to say the least. The Chinese won’t be worried about exchange rates if the North China Plain, its too-far-south, too-close-to-sea-level “breadbasket,” is starting to flood.
Improved Transparency with Hatch-Wyden-Ryan Fast Track? The Opposite.
Many are going to tout the bill’s increase in transparency, meaning people will actually get to read the TPP treaty before it’s signed. But, according to Wallach:
Provisions that are being touted as improving transparency, by empowering the Office of the U.S. Trade Representative (USTR) to develop standards for staff access to negotiating texts, would in fact provide a statutory basis for the unacceptable practice of requiring congressional staff to have security clearances to view any draft trade pact text and would fail to match even the level of transparency seen during the Bush administration’s trade negotiations. A close read of a new provision requiring USTR to post a trade agreement text on its website 60 days before signing reveals that this timing would be 30 days after the agreement was initialed and the text locked, meaning the text would only become public after it was too late for the public or Congress to demand changes.
I’ve had concerns that under Fast Track, even members of Congress may not see a full treaty before voting on it. I’ve had that concern answered; according to one member of Congress in a recent conference call, he would have access. I wasn’t able to ask the follow-up question: “Would his staff also see the treaty?” I think the answer is above.
Look at it this way. The treaty is toxic in its language. Members of Congress can only read it in “reading rooms” without taking notes. If staff can see it at all, they have to have appropriate security clearances — because the treaty is being classified as a national security document. When Obama lobbied members of Congress recently about passing Fast Track and TPP, he threatened them that if they talked about what they heard in the meeting, they’d be charged with a crime:
As the Obama administration gives House Democrats a hard sell on a major
controversial trade pact this week, it will be doing so under severe
conditions: Any member of Congress who shares information with the
public from a Wednesday briefing could be prosecuted for a crime.
In that atmosphere, and with treaty language that toxic, why would any administration allow copies to float through the halls of Congress? There are 435 House members and 100 senators. Let’s say each has two staff members who would be assigned to read this treaty. You’re now looking at between 535 and over 1000 copies on Capitol Hill. You’d have to assume that one of those copies goes to the press, and then, for Obama, it’s game over.
Bottom line on transparency — isn’t going to happen. If Obama wanted transparency, we wouldn’t be looking to Wikileaks for our only copies.
What About the New “Human Rights” Negotiating Objective?
The Wyden-Hatch-Ryan bill contains new language about “human rights,” but if you read this far, you know how effective that is likely to be. Wallach:
Today’s bill includes a new negotiating objective related to human rights: “to promote respect for internationally recognized human rights.” But since the bill does not alter the fundamental Fast Track process, the president still would be able to unilaterally pick countries with serious human rights abuses as trade negotiating partners, initiate negotiations with them, conclude negotiations, and sign and enter into the trade agreement with the governments committing the abuses, with no opportunity for Congress to require the president to do otherwise.
Again, unenforceable is the feature, not the bug.
The “Exit Ramp” from Fast Track? Worse Than the Exit Ramp in the Last Fast Track
Proponents of the Wyden-negotiated “exit ramp” — by which the Fast Track process can be ended — assure us that there’s way for Congress to take back its power. Not only is that not true, but it’s a “feature” of this Fast Track bill that’s even worse than the 1988 Fast Track bill. Wallach again:
Instead of establishing a new “exit ramp,” the bill literally replicates the same impossible conditions from past Fast Track bills that make the “procedural disapproval” mechanism to remove an agreement from Fast Track unusable. A resolution to do so must be approved by both the Senate Finance and the House Ways and Means committees and then be passed by both chambers within 60 days. The bill’s only new feature in this respect is a new “consultation and compliance” procedure that would only be usable after an agreement was already signed and entered into, at which point changes to the pact could be made only if all other negotiating parties agreed to reopen negotiations and then agreed to the changes (likely after extracting further concessions from the United States). That process would require approval by 60 Senators to take a pact off of Fast Track consideration, even though a simple majority “no” vote in the Senate would have the same effect on an agreement. In contrast, the 1988 Fast Track empowered either the House Ways and Means or the Senate Finance committees to vote by simple majority to remove a pact from Fast Track consideration, with no additional floor votes required. And, such a disapproval action was authorized before a president could sign and enter into a trade agreement.
So the new exit ramp requires approval by the appropriate Senate and House committees and passage on the floor of both chambers — all of this only after the treaty was signed by all parties, thus requiring that negotiations be reopened on a signed-by-all-parties treaty. What are the odds of that?
By contrast the 1988 Fast Track bill provided a less stringent “exit” from Fast Track via a simple vote of the relevant committees only, and before the treaty was signed. Wyden sold himself for this? It was apparently the sticking point for him.
What Is “Free Trade” Really? Unrestricted Capital Flow
I won’t go long into this here, but in essence “free trade” means one thing to most of us and another thing to people with money. For us, “free trade” is about exchange of goods. Not for those with almost all the money in the world. For them, “free trade” is and always has been this:
Before FDR, this is what “liberalism” meant; it’s why people like the infamous free-market economist Friedrich Hayek are considered “classic liberal economists.” FDR so changed the definition of “liberal,” in fact — by allowing a place for government in the management of the economy — that it led people like Hayek to object that the name had been misappropriated:
In 1977, Hayek was critical of the Lib-Lab pact, in which the British Liberal Party agreed to keep the British Labour government in office. Writing to The Times,
Hayek said, “May one who has devoted a large part of his life to the
study of the history and the principles of liberalism point out that a
party that keeps a socialist government in power has lost all title to
the name ‘Liberal’. Certainly no liberal can in future vote ‘Liberal'”.
This “free market” stuff has been with us for centuries in the West, and it’s always about capital and the rights of capital to be free of government. Guess whom that benefits? If you said “capitalists and the politicians who serve them,” you’d be right. You can’t have a predatory Industrial Revolution without that kind of “philosophy” in place as a cover story.
Needless to say, the cover story is still in place. Welcome to the world of TPP.
GP
(A version of this piece first appeared at Down With Tyranny. GP article archive here.)
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