Recent Letters from U.S. Congress Reveal Why President Obama Cannot Obtain “Fast Track” Trade Authority

At the late September meeting of his Export Council, President Barack Obama declared: “We’re going to need Trade Promotion Authority” to wrap up agreements with 11 Asian and Latin American Pacific Rim countries and the 28 nations of the European Union. U.S. Trade Representative Michael Froman agreed: “None of this can happen without Trade Promotion Authority.” Yet, eight months after the release of his 2013 Trade Policy Agenda, when President Obama first called upon Congress to grant him Fast Track authority, legislation to implement the extraordinary procedure has not even been introduced in Congress, much less approved. There are only 15 days remaining in 2013 that the House of Representatives will meet before leaving for a month-long Christmas and New Year holiday break. What is the hold-up?

In November, a stunning array of Democratic[1] and Republican[2] members of the House of Representatives formally declared their opposition to Obama’s Fast Track request. The prospects for House passage of Fast Track authority for President Obama for the Trans-Pacific Partnership (TPP) are quite bleak. Many House Democrats have a strong dislike for TPP. Many Republican House members have a strong dislike for President Obama, the intensity of which the world recently witnessed when a lengthy standoff between Obama and House Republicans ended in the U.S. government being shut down for more than two weeks.

Supporters say Fast Track authority is needed to coax other countries to make their best offers on sensitive issues because it provides security that any concessions that the United States makes in exchange will not be re-opened by Congress. (And, in a complex plurilateral agreement, withdrawal of concessions by the United States could lead to other countries doing the same in response.) Under the U.S. Constitution, Congress has exclusive authority over trade policy. Thus, even when a U.S. president signs a trade agreement, it can only go into effect if Congress approves it. The Fast Track process guaranteed that an agreement signed by the U.S. president would obtain a vote in both chambers of Congress within 90 days of submission, with no amendments by Congress permitted and no more than 20 hours of debate allowed in either chamber. Congress cannot alter a Fast-Tracked agreement once it has been signed by the President or deny it a speedy “yes” or “no” vote.

While Obama administration officials repeatedly seek to soothe negotiating partners with claims that Congress will provide it Fast Track authority, in fact Fast Track has been very controversial and rarely used since it was designed by President Richard Nixon in the 1970s. Because Fast Track involves an extraordinary delegation of Congress’ constitutional authority to the President, it must be explicitly granted by Congress passing legislation that enacts the Fast Track rules.

Many U.S. presidents have had difficulty obtaining a Fast Track grant from Congress. Congress denied President Bill Clinton Fast Track authority for six of his eight years in office despite Clinton’s official requests in 1995, 1997 and 1998. In 1995, Congress refused even to consider legislation to establish Fast Track and in 1997 such a bill was taken off the House floor mid-vote to avoid it being defeated. In 1998, another attempt was brought to a vote and the House of Representatives voted down legislation to establish Fast Track for the Democratic president, with 71 Republicans joining 171 Democrats in opposition. The next president, Republican George W. Bush, spent two years and enormous political capital to obtain Fast Track in 2002 even though he enjoyed a Republican majority in Congress. The legislation establishing Fast Track only passed by two votes after irregular voting procedures were employed. Bush’s attempts to obtain additional Fast Track authority were rebuffed by Congress in 2007 and 2008. Legislation to reestablish Fast Track was never brought to a vote and the authority lapsed again from 2007 until the present day. That is, in the 22 years from 1991 until today, Fast Track authority has only been in effect for eight years total.

President Obama faces special difficulties in obtaining Fast Track authority, some of which derive from bipartisancongressional ire about the administration’s unprecedented limits on congressional access to the negotiating process for the TPP. Scores of Republicans and Democrats alike have been denied the right to attend TPP negotiations as observers. This is a courtesy provided by previous Republican and Democratic presidents during negotiations for the North American Free Trade Agreement, the World Trade Organization and many other pacts, in recognition of Congress’ constitutional authority over trade.

Until recently, despite TPP having been under negotiation since 2008 and slated to be signed this year, members of Congress were even denied access to draft TPP negotiating texts. During past U.S. trade negotiations, access was provided to all members of Congress, with full draft texts located in a secure reading room in the U.S. Capitol easily accessible to representatives, senators and congressional staff with security clearances. Only after years of protest, members of Congress can now ask for specific TPP chapters to be brought to their offices for them to review. But, congressional staff are required to leave the room, members are not allowed to take detailed notes or keep the text, and members are not allowed to discuss what they have seen.

Passage of legislation to establish Fast Track authority is most difficult in the House of Representatives. Representatives only serve two-year terms, in contrast to senators’ six-year terms. Facing electoral accountability every two years, representatives are less inclined to give up their constitutional authority over trade agreements that have grown increasingly unpopular among diverse elements of the American electorate. A large bloc of U.S. small business, Tea Party, conservative action, labour, consumer, environmental, faith and family farm groups oppose Fast Track on principle, explicitly demanding that members of Congress maintain full authority over trade pacts. With American voters demanding that their representatives safeguard them against trade deals that could offshore jobs, allow unsafe food imports or raise medicine prices, it is difficult to obtain a majority of the chamber’s 435 members in favor of Fast Track.

With respect to the three major efforts by presidents to obtain Fast Track in the past 25 years that resulted in actual votes even being scheduled – by George H.W. Bush in 1991, Bill Clinton in 1998 and George W. Bush in 2002 – the largest margin of House passage was 27 votes in 1991. One of these Fast Track grants passed by two votes and one failed to pass. A majority of Democratic House members have opposed both Democratic and Republican presidents’ requests. A bloc of Republican conservatives has also regularly opposed Fast Track as undermining normal constitutional order.

In 2012, more than 130 House Democrats wrote to the Obama administration demanding access to the draft TPP text and demanding a change in direction for TPP talks: “Unfortunately, reports indicate the agreement is likely to repeat, rather than improve upon, the existing trade template—including the weakening of Buy America provisions, providing extraordinary investor-state privileges, and restricting access to lifesaving medicines in developing nations, to name a few.” In November 2013, a startling 166 of the 201 House Democrats sent letters to President Obama explicitly objecting to his request for Fast Track. One letter, signed by 151 members, including much of the House Democratic leadership and many who had supported the 2011 U.S.-Korea Free Trade Agreement, stated: “Given our concerns, we will oppose "Fast Track" Trade Promotion Authority or any other mechanism delegating Congress' constitutional authority over trade policy that continues to exclude us from having a meaningful role in the formative stages of trade agreements and throughout negotiating and approval processes.”

Meanwhile, one of the U.S. Senate’s leading Tea Party Republicans, Sen. Rand Paul, announced his opposition to Fast Track in August 2013. Conservative Tea Party leader and former Republican House member Colonel Alan West launched a campaign against Fast Track on a major conservative website in October 2013 with an editorial: “No Fast Track for Obama’s Next Power Grab.” An array of conservative groups have joined the fight against Fast Track. In November, 22 Republican House members sent the president a letter explicitly rejecting Fast Track: “We are strong supporters of American trade expansion. We are also strong supporters of the U.S. Constitution.  Article I-8 of the Constitution gives Congress exclusive authority to set the terms of trade. …we do not agree to cede our constitutional authority to the executive through an approval of a request for “Fast Track Trade Promotion Authority.” A group of 6 moderate Republican Party members sent their own letter opposing Fast Track.

In addition to the bipartisan opposition by many House members to Fast Track, another reason that legislation has not even been introduced is another round of the endless budget-related battles between Obama and congressional Republicans. Obama and congressional Democrats insist that legislation to establish Fast Track be paired with legislation reauthorizing a program called Trade Adjustment Assistance (TAA). TAA provides extended unemployment benefits and job retraining to U.S. workers who lose their jobs to trade. Many Republicans oppose TAA as an expensive government giveaway. Recently, the powerful conservative lobby group that pushed the strategy to shut down the government also came out in opposition to pairing TAA with Fast Track legislation. The inability to resolve this issue is only one of a list of major disagreements between Democrats and Republicans about the contents of legislation to provide Fast Track authority.

Worryingly, one issue about which there is no disagreement is a requirement that even after the U.S. Congress passes a trade agreement under Fast Track rules, the U.S. president must withhold formal written notification to partner countries of U.S. completion of its legal requirements to implement the agreement until the President certifies that the partner countries have altered their domestic laws and policies to comply with the agreement’s requirements. That is, even after both the U.S. Congress has voted to approve a trade agreement and trade partner countries have also ratified an agreement, it can only go into effect after the United States unilaterally certifies that the other countries have met U.S. expectations of trade partners’ compliance with an agreement’s terms. This mechanism provides U.S. commercial interests and the U.S. government enormous leverage to try to force other countries to conform their laws and policies to the U.S. interpretation of what are often deliberately vague, opaque and contested trade pact terms and rules. This unilateral certification process results in the United States obtaining additional concessions after a trade pact has been negotiated and signed. Often, U.S. officials actually travel to the trade partner country and directly participate in making the changes to domestic law required by the United States. This U.S. practice is why U.S. trade agreements often do not go into effect for years even after both the U.S. Congress has approved an agreement and a trade partner has completed its domestic legal requirements.

Given the array of congressional opponents to a Fast Track delegation, it is not surprising that legislation establishing Fast Track has not been introduced. President Obama’s request that Congress grant him extraordinary new authority with respect to the TPP faces an uphill battle. What is surprising is that there is not more awareness among U.S. negotiating partners that Fast Track is not forthcoming, in no small part because many in Congress have deep concerns about the TPP and the process being used to negotiate it.