A 'Legislative Laxative': On Fast-Tracking, Democracy, and Free Trade

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Public Citizen

A 'Legislative Laxative': On Fast-Tracking, Democracy, and Free Trade

What do a zombie, handcuffs, a steamroller and a legislative luge run for job-killing trade agreements all have in common? They're all apt metaphors of an expired, scandalously anti-democratic procedure called Fast Track.

And, I should know. I just wrote the book on it. How this little-known but extremely dangerous procedure was first hatched and how it has been used to ram extremely dangerous "trade" agreements through Congress over public opposition is a scary story. This is not a book for the nightmare-prone.

But everyone else should give it a read, because, gruesomely, the Obama administration and some in Congress are looking to bring Fast Track back from the dead.

With a powerful gang of corporations eager to use massive agreements like the Trans-Pacific Partnership (TPP), now under negotiation, or the looming U.S.-EU Transatlantic Free Trade Agreement (TAFTA) to steamroll policies supported by the public and enacted by Congress, the threats posed by such an extreme procedure are severe.

Like what? A rollback of Congress' recent Wall Street reforms, says Sen. Elizabeth Warren. An undermining of the medicine cost savings of Obamacare, says a groups of state legislators trying to implement that policy. Plans to expand extreme investor privileges that offshore thousands of jobs. A ban on Buy American provisions that create thousands of jobs. Gutting of critical food safety improvements, says Rep. Rosa DeLauro (D-Conn.), Congress' greatest food safety champion. And, then there is a backdoor sneak-in of draconian copyright rules reminiscent of the Stop Online Piracy Act (SOPA).

Though few would know its name, the majority of Americans have felt the fallout from Fast Track because... drum roll... today's "trade" agreements aren't really about trade anymore. Modern "trade" deals delve into vast areas of Congress' and state legislatures' non-trade authority, and our daily lives. All U.S. laws and policies are required to conform to terms set in these pacts on food safety, Wall Street regulation, access to the Internet, medicine patents and prices, climate and energy policy, health care, immigration and more. In one lump sum, Fast Track delegated away policymaking prerogatives in all of the above to unelected trade negotiators, allowing them to impose non-trade policies, including those that Congress had previously rejected, through the back door of "trade" agreements.

In fact, when it comes to agreements that are actually about trade, Fast Track isn't needed. Of the hundreds of U.S. trade and commercial agreements completed since the mid-1970s, only 16 have required Fast Track.

One commentator aptly called Fast Track "a legislative laxative that's bad for the Constitution," given it trashes a key check-and-balance inserted by the Founders to prevent an executive branch monopoly over trade policy. I would add that Fast Track is also bad for us. It is how we got into the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) -- pacts that not only resulted in massive U.S. job offshoring, but floods of unsafe imported food and higher U.S. medicine prices, thanks to patent extensions buried in the 900-page texts.

Fast Track was first hatched by Richard Nixon as a way to grab Congress' exclusive constitutional authority to set the terms of U.S. trade policy and to write our laws. Under Fast Track, the executive branch was empowered to unilaterally choose negotiating partner countries, determine the contents of pacts and then sign and enter into such deals, all before Congress had a vote. And, Fast Track empowered "trade" negotiators to set such binding rules on policies far beyond traditional trade matters (like tariffs), internationally preempting domestic food safety, medicine patent and other non-trade laws. Fast Track then empowered the executive branch to write legislation to change any U.S. law needed to conform to the agreement terms, avoid congressional committee amendment processes and directly submit legislation for a no-amendment, limited-debate vote, which was guaranteed within 60 days of submission.

In the era of Nixon, most of what was in trade agreements was about trade, but now Nixon's initial encroachment on Congress' authority has metastasized into a means of "diplomatically legislating" what Congress and the public reject under normal democratic process.

So, why would members of Congress choose to handcuff themselves? They often haven't. When President Clinton tried to revive Fast Track in 1998, he was roundly defeated in the House by 171 Democrats and 71 GOP representatives. In 2002, after two years of political deals and head-bashing, George W. Bush got the handcuffs back on Congress thanks to a 3 a.m., held-open-for-an-hour vote. The Republicans who provided the two-vote margin were defeated for reelection. In 2007, Fast Track finally met its zombie end when Congress refused to consider Bush's next request.

Why would the Obama administration want to revive the moldering corpse of Fast Track? Because the administration is pushing the massive TPP deal, which is built on the model of NAFTA. Think of the TPP as NAFTA-on-steroids with 11 nations. It is likely to prove just as difficult as NAFTA to get past the public and through Congress. To slide such a deal through Congress, the administration's hope (really, its only hope) is to use Fast Track's legislative luge run.

So, what can we do? Replace Fast Track. Getting U.S. trade negotiators under the control of Congress and the public could not be more urgent, given the TPP and TAFTA negotiations and the vast implications of those looming agreements. In fact, as my new book shows, about every two decades Congress has come up with a new mechanism to manage trade pact negotiations and approval as the scope of agreements changed. Until now.

Unfortunately, given the Obama administration's attempts to revive Fast Track, it looks like the first order of business will be to finally bury a bad idea whose time is long past.

If you want the whole gory Fast Track story and how Fast Track can best be replaced, you can buy the book or download it to your reader here: fasttrackhistory.org.

Lori Wallach

Lori Wallach, director of Public Citizen's Global Trade Watch division, is co-author of Whose Trade Organization?

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