As part of the push to approve the Trans-Pacific Partnership, President Obama has now stated that he will ask Congress for Fast Track Authority (FTA). Fast Track Authority was first granted to President Ford (first proposed by President Nixon but he resigned prior to congressional approval) and has been used to enact almost every Free Trade Agreement since. Note that FTA is not required nor requested to enact traditional trade agreements which deal with tariffs and quotas; but because of the complexity of Free Trade Agreements, FTA is seen as required to enact Free Trade Agreements. A distinguishing characteristic of these agreements is that they largely involve non-tariff issues.
FTA allows the president to enter into and sign free trade agreements prior to any congressional approval. These agreements become law when the president signs them. For all other laws, congress must give its approval first and then when the president signs, it becomes law. FTA turns that standard democratic process on its head.
Under FTA, Congress is not allowed to be part of the negotiations. After the negotiations are completed and the agreement has received the presidential signature, the implementing legislation, which includes changes to American law necessitated by the agreement, is presented to first the House for their vote and then to the Senate for their vote. Neither chamber is allowed to make any changes to the implementing legislation. Both chambers are required to vote within 90 days of the presidential presentation of the implementing legislation.
Such rigid timelines for congressional approval means that neither Congress nor the public have adequate time to read and analyze these enormously complicated detailed agreements, agreements which will have significant impacts on labor public health the environment agriculture, financial regulation and more. And these rigid timelines are imposed on congress in spite of the fact that the president (and the corporate lobbyists) will have spend years negotiating the agreement.
Democracy demands that congress not delegate its constitutional responsibility to negotiate trade agreements to the president. Such delegation is a major power grab on the part of the president. We need to demand that congress not approve Fast Track Authority.
There is an excellent e-book from Public Citizen called The Rise and Fall of Fast Track Authority. This is what it says about the provisions/timeline of FTA:
Core Aspects of Fast Track Trade-Authority Delegation
- Allowed the executive branch to select countries for, set the substance of, negotiate and then sign trade agreements – all before Congress had a vote on the matter.
- Required the executive branch to notify Congress 90 calendar days before signing and entering into an agreement. 127
- Empowered the executive branch to write lengthy implementing legislation for each pact on its own, without committee mark ups. That is to say, the process circumvented normal congressional processes. These executive-authored bills altered wide swaths of U.S. law to conform domestic policy to each agreement's requirements, and formally adopted the agreement texts as U.S. law. As a concession to congressional decorum, the executive branch agreed to participate in "non" or "mock" hearings and markups of the legislation by the trade committees. However, this is a practice, not a requirement. In 2008, President Bush chose to ignore this practice and exercise the president's Fast Track right to force a vote on an agreement by submitting it without informal agreement on timing or mock mark ups, despite congressional leaders' objections to the pact's submission at that time. 128
- Once the executive branch transferred such a bill, the agreement itself, and various supporting materials to Congress, the House and Senate were required to vote on the implementing legislation and the attached agreement within 90 legislative days.
- Such bills were automatically referred to the House Ways & Means and Senate Finance Committees. (In the 2002 Fast Track bill, the House and Senate Agriculture committees also got a formal referral). However, if a committee failed to report out the bill within 45 legislative days from when the president submitted the legislation to Congress, the bill was automatically discharged to the floor for a vote.
- A House floor vote was required no later than 15 legislative days after the bill was reported or discharged from committee. Thus, within 60 legislative days, the House was required to vote on whatever agreement the president had signed, and whatever legislation changing U.S. laws he had written to implement the package.
- The Finance Committee was allowed an additional 15 days after the House vote, at which time the bill was automatically discharged to the Senate floor for a vote required within 15 legislative days.
- The floor votes in both the House and Senate were highly privileged. Normal congressional floor procedures were waived, including Senate unanimous consent, debate and cloture rules, and no amendments were allowed. Debate was limited to 20 hours – even in the Senate.
- Once the president provided Congress with notice of his intent to sign an agreement, he was authorized to sign after 90 calendar days. However, there was no mandatory timeline for him to submit formal implementing legislation and start the 90-legislative day vote clock. Thus, an agreement's legal text finalized just minutes before the delegation authority expired could be sent to Congress even years later.
- Once a president submitted an agreement under Fast Track, that agreement's Fast Track treatment was "used up." If Congress adjourned before the mandatory vote clock ran out or if Congress voted against the agreement, Fast Track for that agreement expired. If it were to be submitted again for a later vote, normal congressional floor procedures would apply. 129
- An advisory-committee system was established to obtain private sector input on trade-agreement negotiations from presidentially appointed advisors. 130 This system is organized by sector and industry and included 700 advisors comprised mainly of industry representatives. Throughout trade talks, these individuals obtained special access to confidential negotiating documents to which most members of Congress and the public have no access. Additionally, they have regular access to executive-branch negotiators and must file reports on proposed trade agreements. The Fast Track legislation listed committees for numerous sectors, but not consumer, health, environmental or other public interests. 131
- The 1974 Fast Track also elevated the Special Trade Representative (STR) to the cabinet level, and required the Executive Office to house the agency. While other cabinet-level positions tend to be responsive to a pre-defined constituency (Agriculture and farmers, for instance), the STR was unique in that its only real constituency was the president, the gatekeeper committees of Congress, and the hundreds of trade advisory committees. And its main goal was proliferation of trade negotiations. The 1979 Fast Track changed the name of the STR to the U.S. Trade Representative.
- The 2002 Fast Track created an additional requirement for 90-day notice to the gatekeeper committees before negotiations could begin, but neither the gatekeepers nor the executive were required to take any further action after receiving this notice. 132