Bad News From the Beltway

Congress is supposed to take action on a trade agreement negotiated under the trade promotion authority within 90 days of the date the president submits it.  However the 90 day requirement just lies in the legislature's rules, and a legislature can change the rules it sets for itself. 

Nancy Pelosi announced today that she is going to try and do that with respect to the Columbia trade agreement: Pelosi Statement on House Removing Timetable from Consideration of Colombia Free Trade Agreement (press release, April 9).  Normally the president doesn't submit until he gets a "go-ahead" from Congressional leaders; in this case that hadn't come, and he got tired of waiting.  Pelosi's statement reads:

“I thought there was a risk, the President sending it to the Congress now. If brought to the floor immediately, it would lose. And what message would that send? And so I thought there was everything to be gained about continuing our conversation [a conversation about when to submit - Ben]. The President disagreed and sent it over yesterday. Today, I discussed with my caucus the prospect of a rule change that we will bring to the floor tomorrow.

“It’s not really a rule change; it’s sort of in keeping with the rules of the House. And that rule will say that we will remove the timetable from the consideration of the Colombia Free Trade Agreement. It’s keeping with how the rules of the House have governed how trade agreements have traditionally been brought to the floor under TPA.

“And what the President said Monday, and by his actions yesterday, was that he wanted to abandon any discussion protocols about how this could properly be brought to the floor. That’s one thing, but more importantly, was how we could properly address the concerns of America’s working families.

“We have the bills ready – there a number of things we could do – but the President chose not to do that. So we will choose tomorrow to remove the timeline from the consideration of the Colombia Free Trade Agreement.

Pelosi is very careful here to try and limit the precedent (not really a rule change, a reaction to the President's deviation from past norms, limited to the Columbia agreement).  However this can't be a good precedent to have in mind in negotiations under future trade promotion authority, or fast track legislation.  Note also (see below) that the "no amendments" and "debate limit" provisions are also rules subject to change.

Paul Kane and Dan Eggen report for the Washington Post: House Speaker Seeks Delay on Colombia Trade Pact (April 9). 

Pelosi, who worked with the administration in crafting the Colombia Free Trade Agreement last year, said the House would vote on a rule change to freeze the clock on when it must consider the pact. Under the current provisions, the House has 60 legislative days to consider the measure after President Bush sent it to Capitol Hill Monday.Democrats instead want the trade deal considered as part of a broader economic relief package. Bush has rejected talk of a second stimulus package.

I'm not as happy about this as the gang over at Global Trade Watch: Breaking: Pelosi to kill Fast Track on FTA with union murder capital.  In January they explained the Pelosi's procedure (Bush to circumvent Congress on Colombia FTA?):

Martin Vaughan in Congress Daily had more on this possibility [that Congress doesn't say its ready to receive the bill - Ben].

lobbyists and administration officials have discussed the option of just sending the Colombia deal up and forcing Democrats to vote on it, if congressional leaders won't take it up willingly. But Democratic aides and opponents of the deal said House leaders might also hold a secret trump card, an "emergency brake" that could short-circuit the fast-track process.

In the event that the White House sent the agreement up, House Speaker Pelosi could write a rule that would make a vote on the agreement subject to the call of the chair. Even though the trade negotiating authority has tools to prevent an agreement from being bottled up in committee, the speaker could, through such a rule change, delay a House floor vote indefinitely. But Democratic aides downplayed that scenario, saying it is unlikely that the Bush administration would risk being repudiated on the Colombia deal by sending it up without the acceptance of Democratic congressional leaders.

If Pelosi wanted, she could face down Bush if he tried to pull this stunt. Normally Fast Track requires a House vote on final passage a maximum of 60 days after the president introduces implementing legislation, with the Senate having 30 additional days to vote. This feature of Fast Track thus forces final action at the latest 90 days after implementing legislation is dropped. However, the 2002 Trade Promotion Authority 2105(c) makes clear that this requirement, as well as Fast Track’s ban on amendments and 20-hour limit on debate,

"are enacted by the Congress—

(1) as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such are deemed a part of the rules of each House, respectively, and such procedures supersede other rules only to the extent that they are inconsistent with such other rules; and

(2) with the full recognition of the constitutional right of either House to change the rules (so far as relating to the procedures of that House) at any time, in the same manner, and to the same extent as any other rule of that House."

A Congressional Research Service memo makes this even clearer:

Although this [Fast Track] statute is permanent law, it has been enacted as an exercise of the rulemaking power of either House and can be changed by either House, with respect to its own procedure, at any time, in the same manner and to the same extent as any other rule of that House.

Comments

[Shawn in Tokyo]

I think it is a shame and a sincere loss for the US if this trade agreement doesn't go through.

[Peter Gallagher]

Ben, what breadth does a 'rule change' have? Are you of the view that the change in the 90-day-up-or-down rule in TPA for the Colombia agreement undermines the general durability of the rule as it might apply to e.g. a Doha round result?