Fast track — the expedited procedure that Congress has long used to consider trade legislation — might prove the principal casualty of the confrontation between the White House and Capitol Hill over the Colombia Free Trade Agreement.
The Constitution gives Congress the ultimate authority to approve trade deals. And, since the 1974 Trade Act, Congress has agreed to vote up or down in a timely fashion on trade accords, forswearing its constitutional right to amend legislation.
These rules have persisted because of a tacit agreement between successive congresses and administrations to work cooperatively to produce trade agreements that enjoy bipartisan support. That implicit understanding has been slowly unraveling for years. And now amity has finally broken down over the White House sending the Colombia deal to Capitol Hill without the consent of the House leadership and the House subsequently stripping the bill of its fast-track assurance to be voted on within 90 days.
Whoever is to blame for this train wreck, the lesson is clear. “Fast track only works when there is good will at both ends of Pennsylvania Avenue,” said Mac Destler, a professor at the University of Maryland. Clearly, that good will no longer exists.
A new administration, especially if it is a Democratic one, should not face such ill will. But the vocal contingent in the Democratic Caucus in the House that is strongly critical of trade might be stronger. And with globalization affecting the lives of more Americans, Congress will undoubtedly want an ever greater say on such issues that so affect constituents.
Whoever resides in the White House next year will undoubtedly want fast-track negotiating authority, which has become a symbol of presidential power. And since current authority has lapsed, the next administration will have to ask for it to be renewed. The Colombia confrontation suggests fast track might have to be substantially rewritten, if it is to have any chance of renewal.
As the Colombia vote demonstrated, fast track is merely a rule of the House that can be changed at any time in any way by a simple majority. This has profound implications.
Every president in the last generation has contended that he needs blanket fast-track authority to do his job. He has argued that other nations will be unwilling to negotiate trade agreements with Washington unless there is a timetable for congressional action and a commitment to an up-or-down vote.
That reasoning might no longer hold. After Colombia demonstrated that fast track can be changed at any time, no country can be reassured by a U.S. president having negotiating authority.
They will just have to live with that uncertainty. Nations want to do trade deals with the United States to gain greater access to the U.S. market. Their need to sell here will exist even if the next president does not have fast track.
So trade negotiations might have to proceed without assurance of expedited congressional consideration, at least until they have been negotiated and have to be put before Congress. Deals that afford obvious benefits to the U.S. economy can then be granted fast track.
Moreover, winning blanket fast-track authority has proven to require an ever-greater expenditure of political capital. President Clinton twice failed to get Congress to renew his authority. And President Bush achieved it by one vote in the House in 2001.
Now that Congress has exercised its right to change the rule, said former U.S. Trade Representative Charlene Barshefsky, future administrations should realize that “the effort it takes to get fast track passed is grossly disproportionate to the ease with which it can be suspended.” She thinks the next president should not even try for fast track until the White House has a trade deal in hand that needs approval.
A variant of this approach would be to limit blanket fast-trade authority to multilateral trade agreements, which Congress has always seen in a more favorable light. Fast track might be accorded bilateral deals only after they have been negotiated.
Alternatively, fast track might exist only for the life of the Congress that granted it in the hope that an individual Congress would be less likely to change rules it has so recently approved.
This would have the added advantage of sending a signal to foreign negotiators that Washington expects trade talks to be finalized in a timely fashion.
Most important, said Greg Mastel, a senior policy adviser at Akin, Gump, “to make fast track work, there has to be more of a congressional buy-in to the process.”
The National Foreign Trade Council is looking at fast-track reforms. One approach it is considering is creation of a congressional oversight group modeled on the Joint Committee on Taxation. This body might be chaired by the leaders of the House Ways and Means and Senate Finance committees — the traditional trade overlords — but would include representatives of other committees such as Banking and Energy and Commerce that increasingly are involved in trade issues.
This group would have to approve, formally or informally, the launching of each bilateral trade negotiation and provide greater oversight of such talks.
Whatever fast track reforms the next Congress decides upon, it is clear that the Colombia free trade debate has been a watershed. Fast track might never be the same.
This article appears in the April 26, 2008, edition of National Journal Daily.