Congress has ultimate responsibility for trade policy in the U.S. Under the recently expired Trade Promotion Act (TPA) of 2002, it committed to a straightforward up and down vote on an agreement, without amendments, if certain objectives were addressed in the negotiations and if the negotiations were done in a certain way.
One of the requirements was that the U.S. Trade Representative (USTR) consult with Congress during the preparation for and conduct of the negotiations. Over the roughly five years of the TPA the USTR consulted 1,605 times (actually the study had an April cut off - somewhat before the action end of the TPA.
The TPA expired this year. Now the Government Accountability Office (GAO) has taken a look at the mandated consultations (among other things). Here is their report: An Analysis of Free Trade Agreements and Congressional and Private Sector Consultations under Trade Promotion Authority (November 2007)
Congress was in a position to enforce its consultation requirements. Let's count the ways:
- Congress believes that the President has failed to meet these consultation requirements, it may make the implementing bill ineligible for consideration under TPA procedures by adopting a procedural disapproval resolution in both houses.
- In addition, Congress limits trade promotion authority by making it a time-limited authority. The most recent grant of TPA expired July 1, 2007. It could have expired 2 years earlier had Congress passed a resolution that was introduced to disapprove of its extension.
- Finally, TPA includes language stating that TPA procedures are rules and that Congress retains the right of either house to change the rules.
The consultations were extensive. The following figure summarizes the consultation history on the Australia-U.S. FTA (click on it to get a somewhat larger version):
As noted, officials of the USTR consulted with Congress 1,605 times over the lifetime of the TPA (actually through a report cutoff date of April 20, 2007 - but close enough). They consulted on specific FTAs (1,289 times) and on general FTA issues (316 times). The consulted mainly through in-person meetings but also through conference calls.
The GAO report describes the consultation process with Congress's standing committees, and with a special Congressional Oversight Group (COG) set up under the terms of the TPA. With respect to the standing committees:
Most consultations were with the key trade committees - Senate Finance and Agriculture, and House Ways and Means and Agriculture. These meetings (accounting for about two-thirds of the total) were mainly personal meetings. The USTR also met with a wide range of other committees with an interest in trade issues, making a more use of conference calls in these instances, and with individual legislators, their staffers, and special interest caucuses.
Over this period Senate Finance and House Ways and Means met weekly with USTR staff. Meetings lasted an hour to and hour and a half. Several meetings might be held in sequence on different FTAs. Meetings generally included the lead negotiator for the FTA under consideration, key USTR staff, and sometimes relevant staff from other agencies involved in the issue under discussion. There was a greater tendency to use shorter conference calls towards the of the negotiations when USTR negotiators were more pressed for time or were out of the country at negotiating sessions. Before negotiating rounds USTR provided confidential text to staff with security clearances, and more general information to others. After each round USTR briefed staffers on key issues, progress, and what was likely to be dealt with in the next round.
Meetings with agricultural committees occurred every two weeks and Department of Agriculture staffers would generally attend. Otherwise the meeting pattern was very similar to the meetings with trade committees. Meetings with other committees were less frequent:
Generally, the issues involved in the FTA negotiations were not priority issues for these committees, and many of them had a much more limited understanding of the proceedings. Most did not have clearances and received more general descriptions of provisions that would be negotiated, since they were not cleared to receive actual negotiating text.
There were problems in distributing classified negotiating text to the people who needed it. This may have made it difficult for congress to provide input at times:
An issue raised by many of the trade and agriculture committee staff that we interviewed was access to USTR's secure Web site on which it posts the negotiating text for FTAs, as well as other information. The Senate staff said that his was more a matter related to internal congressional security issues than to USTR. Until this year, the Senate committee staff that have access to the classified negotiating texts said they received hard copy information because the Senate was unable to resolve security concerns to allow electronic access. When USTR sent a hard copy to the Office of Senate Security, it took the office a day to log it in and notify staff of its availability. Then staff had to make an appointment to go to a secure room in the Capitol in order to read these documents. The result was that they had a significantly smaller window of time to access the documents than if they had been immediately available electronically. Staffers said that recently a computer in a Senate office building had been made available for this purpose. While this was an improvement, they would prefer to have access in their own offices, or at least their own buildings. On the House side, committee staff did not have any electronic access to USTR's secure Web site, as of the end of August 2007. However, several committee staff said that access was being planned and would greatly improve timely staff access to negotiating information.
USTR officials said that they would welcome expansion of congressional access to USTR's secure Web site. They also said that an important related issue is whether congressional staff working on FTAs under negotiation had security clearances. USTR officials felt strongly that if more congressional staff obtained security clearances, it would greatly facilitate the consultation process, both in terms of access to information and timeliness of information.
The Congressional Oversight Group (COG) was a new element of the consultation process in the TPA of 2002, but apparently it wasn't considered very successful.
The COG's members were the chairs and ranking members of the Senate Finance and House Ways and Means Committees, along with additional majority and minority members of each, and chairs and ranking members of each committee that had jurisdiction over issues affected by the negotiations. The COG was set up to consult with the USTR about negotiating objectives, strategies and positions, development of trade agreements, and compliance and enforcement of negotiated commitments. Its members were accredited as official advisors to U.S. negotiating delegations. The USTR prepared COG guidelines in consultation with the Senate Finance and Ways and Means Committees.
The COG was meant to include members of Congress - especially legislators from non-trade committees - more deeply in the consultation process. The goal was more transparency and inclusiveness. However, it didn't work well.
It didn't meet very often, only nine times from 2002 to 2007. COG meetings were poorly attended, and attendance declined with time. Few legislators from non-trade committees came. Many staffers from committees other than the trade and agriculture committees were unaware of the COG.
USTR officials and committee staff noted that it was difficult to schedule meetings around the busy schedules of Members of Congress. One committee staff said that it had been difficult to schedule attendance by the Member because of short notice for the COG meetings, pointing out that it would be helpful if COG meetings were put on a regular schedule. Two committee staff said a limitation of COG was the requirement that staff could only attend with their Member, so they could not cover meetings the Member could not attend. Another committee staff said that COG meetings should not be scheduled solely at the discretion of the majority staff but also by the minority in order to protect minority rights. Several committee staff described the COG meetings as formalities, particularly as time went on. One staff of a Member on a trade committee, but not on the COG, said that they had resented being excluded from this trade policy-making forum.
Congressional staff generally thought that the consultation processes had done a good job passing information from the USTR to Congress. However, they tended to be dissatisfied with the consultation process as a mechanism for congressional input into the negotiating process.
An important element of this perception for many of these staff, particularly staff not on the trade or agriculture committees, was their view that the timing of the consultation meetings did not give them sufficient time to provide meaningful input to the negotiations. Several staff also cited situations where USTR had not fully informed them of important changes in the draft text under negotiation.
Selection of negotiating partners for trade agreements is an important issue. Staffers interviewed by the GOA often felt that the USTR selected too many small negotiating partners:
One committee staff commented that, increasingly, every congressional vote for an FTA was a difficult vote that involved using up significant political capital. While Members supporting free trade had no problem in principle with negotiating FTAs with smaller countries for foreign policy or other reasons, if Members were going to be expending significant political capital, they wanted it to at least be economically and commercially beneficial.
Apparently the USTR tended to depend more on COG advice about partner selection than on advice from committee staff. Some staffers suggested that a "gatekeeper provision" in past fast track legislation - but not in the TPA - should be brought back.
The gatekeeper provision had required the President to notify Congress and give it an opportunity to disapprove launching of negotiations with a particular partner. These staff felt that restoring it might be beneficial in terms of potentially generating greater buy-in to the FTAs selected for negotiation. Generally, only trade committee staff were aware of the gatekeeper provision. Those opposed did not see any value in it given COG's role in discussing potential FTA partners. The former USTR negotiators with whom we discussed this issue also opposed it. They were particularly concerned about the potential effects of any requirement for an affirmative vote for launching FTA negotiations with a trade partner country because it would mean that Congress would have to vote twice for each FTA and it would force a vote before anyone knew what the actual benefits from the FTA would be.
"Mock markup" is an informal consultation mechanism - not included in the TPA - that gives legislators an opportunity to suggest amendments to an agreement:
Mock markup was instituted because any bill submitted under TPA must be voted on an up-or-down basis without amendment. Before USTR sends up an FTA package for congressional consideration, it sends a draft that includes the signed agreement and a draft of the proposed implementing bill, as well as other supporting documents. Because the fast track process provides that there will be no amendments to the implementing legislation, the trade committees hold "mock" markups of the draft legislation before it is formally submitted to Congress, so that they can indicate the changes that need to be made before it will be acceptable to the committee. However, the mock markups are nonbinding, allowing USTR to decide against changing the legislative language before sending to Congress for an up or down vote. Mock markup is congressional custom and is not mentioned in TPA.
Most trade and agriculture staff we interviewed were familiar with the mock markup process--the informal committee process to "mark up" or amend the draft implementing bills for FTAs. Most trade staff said that it was an important part of the consultations process for TPA. Committee mock markups are generally the only opportunity Congress has to offer amendments to the proposed FTA implementing bill. However, while some were concerned that the mock mark-up process had not been used effectively, others were concerned that it could be misused in order to delay consideration of FTAs or to introduce inappropriate last-minute provisions that should have been addressed during the negotiations.
Some also expressed concern that the trade committees had not scheduled mock conferences when the House and Senate had adopted differing mock amendments. They said that a mock conference was an important part of the consultation process. Some of these staff cited the case of CAFTA when the House and Senate versions of the draft implementing bills differed because the Senate Finance Committee and the House Ways and Means Committee had recommended different mock amendments. They said the two committees did not hold a mock conference and the administration chose the version it preferred, the House version, ignoring the Senate Finance Committee amendments. Other staffers said that complex multilateral negotiations like those of the WTO would need a mock conference, but that FTAs were simpler and a mock conference was often unnecessary and time consuming.
There was a tendency by legislators to begin to pay attention to a negotiation when it was almost done and would shortly be before them:
Some committee staff felt that an inherent problem with the consultation process was that Congress tended to focus on the FTAs at the end of the negotiations, when the deal was essentially done, and it was difficult (if not impossible) to change the terms of the agreement. They said that this resulted from the congressional culture of waiting until an issue was fully developed and likely to become law before focusing on it. In contrast, they said that trade negotiations particularly require congressional attention throughout the process. For consultations to be meaningful and most effective, they felt that it would be important to find ways through the consultation process to facilitate Congress focusing earlier on the FTAs. This was particularly critical given the nature of fast track provisions, in which the final agreement comes to Congress for an up-or-down vote with no amendments.
USTR officials, including some former lead negotiators who we interviewed, also said that earlier attention by Congress was important. Some of them expressed frustration that they would hold frequent consultation meetings, but that many committee staff would not attend, or would not actively engage. Then, at the end of the process, when the negotiations were finalized, they would start to focus and ask questions and want changes. This was very ineffective--sometimes USTR was able to get changes, but often it was no longer possible to modify something that could have been changed earlier in the negotiations.
Staff members on committees other than the trade and agriculture committees have important specialized knowledge, but they don't follow trade issues closely, and their expertise isn't fully being brought to bear:
Another issue raised by several congressional staff was the need for greater access to technical information on an ongoing basis. These staff said that although committee staff on the trade and agricultural committees are knowledgeable about their fields, trade negotiations are today too broad and complex for any one staff member to fully understand all of the implications. One trade staff told us that staff on the other committees of jurisdiction are at a disadvantage because trade is not their primary issue, and they don't have time to follow it. Having access to expert staff, such as through a congressional trade office, would be very helpful, according to one committee staff. Another committee staff opposed what they feared might be creation of an additional bureaucracy with a new trade office and instead said that GAO could serve this role.
In principle, the formal private sector trade advisors could help fill this void. However, committee staff said that they did not have contact with them during the FTA negotiations. One staff said that they used to be invited to trade advisory committee meetings, but no longer. Although the trade advisory committees provide extensive technical information to Congress in their required reports on each FTA at the end of the process, committee staff did not have access to their substantial knowledge base during the negotiations.
A related issue raised by a few staff on some of the nontrade committees of jurisdiction was that trade negotiations involve a great deal of specialized terminology and information. Staff of one committee said that sometimes they found it difficult to fully understand the briefings because the negotiators used so much jargon. They said that it would be helpful if USTR developed a primer describing the typical evolution of the trade negotiations process and providing a glossary of trade terms. Other ideas included USTR providing an overview on upcoming issues at the start of the year, giving more of an overview on FTAs early on, and describing in some detail FTAs at their conclusion.
Comments