President Obama went before the Congress last month to deliver his State of the Union address. It has become the norm in the hyper-partisan atmosphere of recent years that as the president detailed his plans for the nation, on item after item, his party jumped to their feet and applauded. Republicans sat stoically in their seats registering their disapproval.
There was one exception. Midway through the speech, Obama declared, “I'm asking both parties to give me trade promotion authority to protect American workers, with strong new trade deals from Asia to Europe that aren't just free, but fair.” Republicans stood and applauded the president. Most Democrats sat silently in their chairs. On this issue, it is the opposition, more than his own party, which agrees with Obama.
In past international trade agreements, like NAFTA, the president was able to negotiate such pacts as congressional-executive agreements rather than as treaties. Such authority was first granted by law in 1974 and most recently in 2002. It expired in 2007. Presidents seek this authority because such trade agreements can then be approved by simple majority vote of each house of Congress, rather than the 2/3 majority of the Senate which treaty ratification would require. This lower vote requirement (albeit in both Houses) is one reason that trade promotion authority is frequently referred to as “fast track.”
However, the crucial element of making fast track fast, is that the legislation implementing the agreement is considered under what are called “expedited procedures.” Expedited procedures can speed consideration through the House of Representative (although "special rules" reported by the Rules Committee and adopted by the full House routinely makes these expedited procedures unnecessary in the House), so it is in the Senate where the "fast track" authority is crucial. The procedure, unlike treaty consideration in the Senate. would bar amendments and provide for a time-table and a limit on debate. This forecloses the possibility of filibuster and consequently, the implementing legislation can be passed by a simple majority vote.
Of course, this severely restricts the leverage that the minority usually enjoys in the Senate. We have become accustomed to thinking of legislative minorities in terms of the Senate’s majority and minority parties. However, in this case, as we have noted, the opposition would likely include a bipartisan group of many Democrats and some Republicans.
The trade promotion authority is being sought to speed the negotiation of the Trans Pacific Partnership Treaty (TPP), involving eleven other nations in the Pacific region, as well as the Transatlantic Trade and Investment Partnership (TTIP) with the European Union. Proponents argue that without the trade promotion authority, the possibility of Congress inserting amendments after the negotiations are concluded would make reaching these agreements themselves much more difficult or impossible. Other nations would not be willing to make concessions and forge compromises which could then be undermined by Congress.
Opponents which include many Democrats in Congress, labor unions, and environmental groups argue that that sweeping trade agreements like the TPP and TTIP, could lead to lost jobs in the U.S. They are concerned that there will be no strong provisions requiring that trade partners meet the kind of environmental and safety protections and labor rights which U.S. employers must meet.
Sen. Elizabeth Warren (D-Mass.) and two of her colleagues recently wrote to the U.S. Trade Representative Michael Froman, declaring, “We cannot afford a trade deal that undermines the government’s ability to protect the American economy.”
Rep. Rosa DeLauro (D-Conn.), a leader in the House, in a press conference at the Capitol, predicted that, “…[T]here is very broad support in the Congress in opposition to fast track,” DeLauro said. “I believe that we can win this vote as we have in the past.”
Another concern is that the negotiations have taken place in secrecy. What is known about them has been learned largely through leaks to the media.
The bottom line question with regard to the TPP, TTIP, or other trade agreements is whether it is prudent, particularly in light of the secret negotiations, to push them through Congress on a fast track. The normal rules of the Senate are more likely to assure that provisions of these agreements are fully vetted and that the minority viewpoint is heard. For this reason, no matter what the ultimate fate of the TPP or TTIP, legislation granting trade promotion authority is in for a full and contentious debate in the Senate. The “fast track” itself should and likely will be slowed down.