Prosperity Undermined: Economic Outcomes During the Era of Fast Tracked Trade Agreements

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The following article originally appeared here on Public Citizen. 

Fast Track was a U.S. procedure established in the 1970s for negotiating trade agreements. It delegated to the executive branch Congress’ exclusive constitutional authority to “regulate Commerce with foreign nations.”

In particular, Fast Track allowed the executive branch to select countries for, set the substance of, and then negotiate and sign trade agreements — all before Congress had a vote on the matter. Under Fast Track, normal congressional committee processes were circumvented and the executive branch was empowered to write lengthy implementing legislation for each pact on its own. These executive-authored bills altered wide swaths of U.S. law to conform domestic policy to each agreement’s requirements.

Moreover, Fast Track was unique in that it empowered the executive branch to force a congressional vote on such implementing legislation and the related agreement within a set amount of time. Sixty legislative days after the president submitted whatever agreement he signed and whatever legislation he wrote, the House of Representatives was required to vote on the package. A Senate floor vote was required no more than 30 days later.

Under Fast-Tracked votes, normal congressional floor procedures also were waived with no amendments allowed, and debate limited to 20 hours — even in the Senate. Yet while Congress was largely excluded from the negotiating process, Fast Track set up private-sector advisory committees that entitled hundreds of business interests to have special access to negotiators and confidential U.S. negotiating documents not available to the legislative branch or the public. In short, the Nixon-conceived Fast Track process undermined essential checks and balances between the branches of government that the Founding Fathers wisely built into the U.S. Constitution.

When Fast Track was first established, trade agreements were focused mainly on cutting tariffs and lifting quotas. In contrast, today’s “trade” agreements typically include hundreds of pages of expansive rules to which all signatory countries must conform their domestic non-trade policies. These non-trade provisions limit Congress and state legislators’ domestic policy space regarding product and food safety and the regulation of services such as health care and energy.

The agreements also include extensions of monopoly patent terms for medicines and limits on how American tax dollars may be spent through government procurement. Some of the agreements even allow foreign investors to use World Bank and United Nations tribunals to demand U.S. taxpayer compensation for domestic environmental, health and other policies that undermine foreign investors’ expected future profits. Fast Track enabled the negotiation and expedited passage of 13 agreements, including the 1994 North American Free Trade Agreement (NAFTA), the 1995 World Trade Organization (WTO), and various expansions of the NAFTA model (including the Central America Free Trade Agreement, which passed in 2005 by a one-vote margin).

The last grant of Fast Track expired in June 2007, but Fast Track’s extraordinary procedures nonetheless apply to agreements signed under the previous authority that Congress has not considered. Many scholars and policymakers believe that Fast Track is an inappropriate mechanism for today’s complex international commercial agreements, which directly affect a vast array of people and policies beyond the scope of the simple 1970s tariff-cutting agreements. Given the current scope of today’s agreements, concerns have grown in Congress about how Fast Track undermines the balance between the branches, empowering the executive branch with enormous power in areas in which the Constitution provides Congress with exclusive authority.

Read the full article here on Public Citizen. 

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