Replacing Fast Track: A Path to Middle Class Prosperity, Security & a Healthy Environment

When it comes to trade policy, “them that write the rules, rule…”

By Public Citizen’s Global Trade Watch

Replacing Fast Track: A Path to Middle Class Prosperity, Security & a Healthy Environment

1. Since 1974, 16 of the most damaging U.S. trade pacts, including NAFTA and the WTO, were negotiated and passed using an extreme procedure called “Fast Track.” When Richard Nixon was president, he cooked up Fast Track to seize power from Congress. The U.S. Constitution gives Congress exclusive authority to “regulate commerce with foreign nations” (Art. I-8). Fast Track was a mechanism that delegated away to the executive branch Congress’ authority to control the contents of U.S. trade pacts, as well as other important powers. Fast Track empowered executive branch trade negotiators, advised by more than 600 official trade advisors who mostly represent large corporations, to choose trade partners and negotiate and sign trade pacts, all before Congress voted. Once signed, Fast Track put such deals on a legislative luge run: no matter how many domestic non-trade policies were implicated or threatened by the deal, Fast Tracked agreements hurtled through Congress within a set number of days, with normal democratic checks and balances iced over. Fast Track ensured that Congress’ role came too late to influence trade pacts’ contents: Congress only got a yes or no vote after a pact was signed and “entered into.” That vote also OK’d hundreds of changes to U.S. non-trade law to conform our policies to “trade” deal terms. Federalism was also flattened by Fast Track via a form of international pre-emption: state officials had to conform local laws to expansive non-trade domestic policy restrictions in Fast Tracked “trade” pacts. State officials did not even get Congress’ cursory role.

2. Fast Track removed the “checks and balances” that are essential to our democracy – handcuffing Congress, state officials and the public and making it impossible to hold U.S. negotiators accountable during trade negotiations, while empowering corporate trade advisors to call the shots. In one lump sum, Fast Track: 

  • Delegated away Congress’ constitutional authority to choose trade partners and set the substantive rules for agreements. Congress listed “negotiating objectives,” but these were not mandatory or enforceable, so Congress’ instructions were repeatedly ignored. When negotiating NAFTA and the WTO, for example, the executive branch dismissed the 1988 Fast Track’s requirement to include labor rights provisions in the deals. 
  • Permitted the executive branch to sign and enter into trade agreements before Congress voted on them. 
  • Empowered the executive branch to write legislation that circumvented normal congressional committee review and amendment processes, suspend Senate cloture and other procedures, and have “privileged” guaranteed House and Senate floor votes 90 days after the president submitted the executive-authored legislation. 
  • Pre-set floor consideration rules: no amendments and only 20 hours of debate on a signed deal and all conforming changes to U.S. law. To get this extraordinary control, the executive branch only had to notify Congress of its actions (e.g. “USTR intends to start talks/sign a deal with nation X in 90 days”). Congress was unable to veto the executive branch’s decision.