What's gotten into this Congress?
Fresh off of bipartisan deals on two excruciatingly tough political issues -- funding the Department of Homeland Security despite Republicans' fierce opposition to President Obama's executive actions on immigration, and coming up with a costly new formula to reimburse Medicare doctors -- Republicans and Democrats are teaming up on yet another divisive topic. On Thursday, leaders of the Senate Finance Committee and the chairman of the House Ways and Means Committee announced a bipartisan plan to renew fast-track authority for trade bills, such as the forthcoming pact involving a dozen nations along the Pacific.
In truth, though, the latest deal is more of a bipartisan semi-compromise. That's because it concedes little to those who want a more meaningful role for Congress in trade deals. The real sugar for Democrats may be a bill that's slated to move in tandem with the fast-track measure: an extension of the trade adjustment assistance program, which offers aid to workers, companies and farmers hurt by foreign competition.
It's no great surprise that Finance Committee Chairman Orrin Hatch (R-Utah) was able to agree on a fast-track proposal with the committee's top Democrat, Ron Wyden (D-Ore.) and Ways and Means Chairman Paul Ryan (R-Wis.). Wyden has supported free-trade deals and fast-track authority in the past, and both Hatch and Ryan have demonstrated their bona fides as dealmakers.
The real test for the proposed fast-track bill (formally known as the "Bipartisan Congressional Trade Priorities and Accountability Act of 2015") is whether it can overcome the hurdles it faces in each chamber. Senate Democrats, many of whom don't trust the administration on trade, can be expected to filibuster. And in the House, both labor-friendly liberals and tea party-affiliated conservatives want to deny the president fast-track authority in the hope of killing the aforementioned Trans-Pacific Partnership.
The most determined TPP opponents won't vote for a fast-track bill under any circumstances because doing so would remove the first line of defense against the agreement. And the most ardent free-traders will support just about any fast-track bill. The trick for Hatch, Wyden and Ryan will be to persuade members who are skeptical about TPP that their bill won't give the treaty an unstoppable path to approval.
At first blush, there doesn't appear to be a lot in the compromise that will help them make that sale.
The main objection to the fast-track procedures is that they require Congress to give a proposed trade agreement a prompt up-or-down vote, with no possibility for amendment. The concern is compounded by the secrecy in which the deals are negotiated. Although the administration says it consults religiously with lawmakers and tells them in advance what it's proposing, the actual terms being batted back and forth remain (officially) hidden from the public while talks are in progress.
In the Hatch-Wyden-Ryan proposal, the biggest win for lawmakers who aren't fans of free trade is updated negotiating objectives that set a much higher bar on such things as labor and environmental standards, digital commerce, currency manipulation and human rights. The problem is that those objectives are merely advisory, not binding on the U.S. Trade Representative.
If lawmakers believe the objectives hadn't been met, or that the administration hadn't consulted properly during the negotiations, the bill would let one or both chambers turn off fast-track authority within that chamber by a majority vote. But that authority (a version of which has been included in past fast-track laws) seems superfluous, given that lawmakers could accomplish the same thing just by voting down a proposed trade pact. Either action would send the administration back to the bargaining table to seek better terms from its trading partners.
As for transparency, the bill would give every lawmaker access to the negotiating text during the talks, including classified details. It also would write into law the administration's practice of publishing the final text of trade deals two months before they're formally signed. But it wouldn't guarantee more public participation in or access to information about the talks; instead, it would call on the U.S. Trade Representative to develop new guidelines that encouraged such things.
The most vocal opponents of fast-track authority and the TPP might not be satisfied with anything less than a requirement that negotiating sessions be streamed on YouTube. It's hard to see any country agreeing to that kind of transparency. Other reformers, though, were mainly interested in having the details of a pending deal revealed to and considered by Congress before it was signed, which would give lawmakers (and the public) a better chance to shape the text before it was locked down. They wouldn't get that from the bipartisan proposal.
One final sore point for critics of free-trade deals is that they can lead to changes in U.S. laws and regulations, while also making it harder to change unpopular U.S. rules that are incorporated into such deals. This is an increasingly sensitive point because trade deals are becoming less focused on tariffs and more focused on legal and regulatory impediments to trade, such as food safety standards and intellectual property protections.
The bill would make clear that a trade deal can't change U.S. law. Only Congress can do that by enacting legislation to implement an agreement. The measure would also hold that international tribunals that enforce a deal's provisions cannot change U.S. laws or regulations. They can, however, impose penalties on the U.S. citizens and companies that violate the terms of a pact.
These provisions would simply confirm what's already true, however. The bottom line of an international trade deal is that it requires each participant to give up something in order to get something. That's not a threat to U.S. sovereignty because U.S. lawmakers still have to choose to make the conforming changes to U.S. rules. To some critics on the right, however, it feels like a threat to sovereignty; add that to the list of challenges the bill faces.
For the record, The Times' editorial board has urged Congress multiple times to renew fast-track authority because it gives the administration direction and sets negotiating priorities. It doesn't stop lawmakers from voting down TPP if they don't like the version that the administration eventually delivers.
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