Program

Effort to Derail Trade Pact From Fast Track Is Smart Ploy, But ...

Speaker Nancy Pelosi (D-Calif.) stunned political Washington with her bold move last week to temporarily derail the Colombia free-trade agreement's implementing legislation from "fast-track" consideration, putting it instead on a slow-boat to nowhere.

The Speaker is to be admired (but not necessarily commended) for recognizing and exercising this perfectly legitimate procedural option, as unprecedented as it is, and using it for two purposes: first, to mollify organized labor, which strongly opposes President Bush's trade agreement; and second, to use the delay to leverage Democrats' domestic legislation to further stimulate the economy.

Only time will tell whether it was a wise move from an international standpoint, and that will depend on whether the legislation ever sees the light of day again and whether it passes. It's hard to imagine it will be resurrected in the heat of the current presidential campaign in which the remaining two Democratic candidates are trying to outdo each other in their disdain for any and all trade agreements (and Congressional candidates are running for the exits to distance themselves from anything having to do with trade). Moreover, putting the measure back on track prior to the election would have severe repercussions with labor when it comes to turning out votes and funding campaigns.

The concern expressed by the White House that delaying or denying consideration of the trade legislation will jeopardize the ability of the U.S. to negotiate future agreements with other countries is a legitimate one. What credibility will the U.S. trade representative have if her word is not backed by the full faith and credit of Congress? At the same time, it should be recognized that the administration earlier withheld the Colombian agreement in deference to Congressional concerns about insufficient labor and environmental standards. It then resurfaced with the bill on April 7 without first going through the usual "mock markup" in Congress to smooth the way for passage on an up-or-down vote.

In my May 7, 2007, column, I explained the trade-offs involved in Congress delegating to the executive branch its constitutional authority "to regulate commerce with foreign nations." As former U.S. Trade Representative Robert Zoellick put it, "We have to borrow that authority, and we have to give it back now and then."

The "fast-track" trade authority expired at the end of June 2007 and has not been renewed. The Colombian agreement made it in under the wire for consideration under expedited procedures in Congress. The other procedures in the Trade Act will still apply to the Colombian trade bill should the Speaker put the measure back on track — no amendments, limited debate, no motion to recommit. Future trade agreements, however, will be more problematic without fast-track renewal.

It is difficult to imagine Congress directly negotiating trade agreements with other countries, which would be the case if fast-track authority isn't renewed. It is even more difficult to imagine a presidential trade representative negotiating such agreements without authority to do so, and simply submitting them to Congress as advisory in nature (comparable to a president submitting a proposed law), subject to all manner of change or, worse, of not even being considered by Congress.

One thing that constantly amazes anyone watching the fast-track process, both on and off the Hill, is the seeming anomaly of a House or Senate rule change being able to trump a statutory requirement. The procedures for considering trade agreement implementation legislation are written into the 1974 Trade Act. They call for committee action within so many days without amendment, floor consideration within so many additional days, again without amendment, and consideration in the Senate after that with similar expedited procedures and deadlines for action. If a committee does not report, the bill is automatically discharged. Because both houses are voting on the exact same language, there is no need for a conference committee, and if both approve the bill, it is forwarded to the president for his certain signature, since he submitted the bill in the first place.

Notwithstanding these statutory requirements for privileged procedural consideration, the House Rules Committee has regularly intervened to adjust some of the procedures — namely, shortening the general debate time from the statutory 20 hours, and allowing the Speaker to postpone a final vote. They can do this because the statute specifically provides that the procedures are adopted as part of the constitutional authority of both chambers to make their own rules, and to change them at any time.

Pelosi, however, is the first Speaker in the history of the 34-year-old statute to ask the Rules Committee (with House approval) to suspend the expedited timetable for consideration. The House handily endorsed her gambit Thursday, 224-195.

Just as it is unlikely that Congress will grant Bush his requested renewal of fast-track negotiating authority so late in his term, it is even more difficult to imagine a Democratic president even asking for it (whether it be Illinois Sen. Barack Obama or New York Sen. Hillary Rodham Clinton, given their anti-trade views). It is also highly unlikely that the next Congress, which is likely to contain an even larger Democratic majority in both chambers, will grant whomever is president such authority. All this poses a new challenge to both branches of how to reconfigure our trade relations and processes over the next four to eight years to put us back in the game (should the Doha round be jump-started). Thus far, a new paradigm has not appeared on the horizon.