[Congressional Record Volume 143, Number 155 (Friday, November 7, 1997)]
[Senate]
[Pages S11948-S11951]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ORIGINS OF FAST TRACK
Mr. BYRD. Mr. President, I have followed the fast-track debate
closely, and it is with some disappointment that I note the absence of
any discussion of the constitutional and institutional framework that
governs our country's approach to foreign trade. A proper understanding
of that framework is essential if we are to have a productive,
enlightened debate about fast track.
I am also convinced that some of fast track's most ardent admirers
might find their ardor dimmed a little if they recognize the sordid
truth about fast track.
Accordingly, I wish to speak, not overly long, about the illegitimate
birth and disreputable pedigree of fast track. And I will attempt to
unfold a decidedly unflattering but undeniably truthful account of how
Presidential machinations and arrogance combined with congressional
spinelessness to produce the monstrosity of fast track. They will learn
that fast track is not about saving jobs or opening markets or building
a bridge to the next century. Fast track, in a very considerable
measure, is about power--raw, unfettered, Presidential power. And Mr.
President, let me point out to any colleagues who doubt my reliability
and objectivity in this regard that much of what I have to say is drawn
from a recent article in the George Washington Journal of International
Law and Economics, whose author appears favorably disposed to fast
track.
I start by noting that the Constitution assigns Congress a major role
in the regulation of foreign affairs. Contrary to popular opinion--and
contrary to the beliefs of most Presidents--the executive branch does
not possess sole authority over foreign affairs. Indeed, beyond the
general statement in article II, section 1 that ``[t]he executive Power
shall be vested in a President of the United States of America,'' the
Constitution contains only four provisions that grant the executive
clear foreign relations authority.
Now, I carry in my shirt pocket a copy of the Constitution of the
United States. Alexander the Great greatly admired the Iliad. And he
carried with him a copy of the Iliad, a copy that Aristotle had
carefully examined and refined somewhat. And it was called the ``casket
copy.'' Aristotle slept with this casket copy of the Iliad under his
pillow. And along with the Iliad, there was a sword.
Now, Mr. President, I do not have a copy of the Constitution at night
under my pillow, but I try to carry it at all times whether I am in
West Virginia or whether I am here. I try to carry a copy of the
Constitution in my shirt pocket. It is a copy of the Constitution that
I have had for several years. It only cost 15 cents at the time I
procured it from the Government Printing Office. Although the price has
advanced now to probably about $1.50, $1.75, it is still the same
Constitution.
We may have added one or two or three amendments to the Constitution
since I first procured this copy. I have not stopped to check on that.
But the Constitution itself has not changed in that time other than, as
I say, some amendments have been added.
Would it surprise Senators to know that the Constitution contains
only four provisions that grant the executive clear foreign relations
authority? As one scholar has dryly observed, ``the support these
clauses offer the President is less than overwhelming.'' The
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clauses, all in article II, are these: the power to appoint ambassadors
and to negotiate treaties, (section 2, clause 2), and both of these
require the Senate's ``Advice and Consent''; also the responsibility to
receive ambassadors from foreign governments, (section 3); and the
authority to command the Armed Forces in case Congress, through its
responsibilities and powers under the Constitution, provides Armed
Forces for the President to command, (section 2, clause 1). These
narrow provisions provide a rather shaky foundation on which to build a
case for the executive's predominance over foreign affairs.
Congress, by contrast, is explicitly given substantial authority
under the Constitution and in the Constitution over foreign affairs.
While the Constitutional Convention saw a lot of debate about which
branch was better qualified to make foreign policy, the document that
was signed on September 17, 1787 gives us a clue as to which side won.
Fully eleven of the powers granted to Congress in article I, section 8
involve foreign affairs. They include the powers: (1) ``To regulate
Commerce with foreign Nations'' (clause 3); (2) ``To lay and collect
Taxes, Duties, Imposts and Excises'' (clause 1); (3) ``To define and
punish Piracies and Felonies committed on the high Seas, and Offences
against the Law of Nations'' (clause 9); (4) ``To declare War . . . and
make Rules concerning Captures on Land and Water'' (clause 11); (5)
``To raise and support Armies'' (clause 12); (6) ``To provide and
maintain a Navy'' (clause 13); and (7) ``To provide for organizing,
arming, and disciplining, the Militia.'' (clause 16). When one throws
into the mix Congress' power to make the law--section 1, article 1--and
its control over spending and appropriations in section 9, one
conclusion is inescapable, namely: Congress' authority over foreign
affairs is formidable.
Despite the Constitution's clear language, however, the history of
this country has seen the executive branch assume control over
increasingly large swathes of foreign affairs power, while Congress has
occasionally taken back a scrap or two or a crumb or so for itself. It
is now almost axiomatic that the President is sole representative of
the United States before foreign nations. This is the culmination of a
process that began in the earliest days of the Republic, when Congress
met infrequently, giving the President effective day-to-day power over
foreign affairs; the process has since accelerated with the advent of
modern media--particularly television--which provide the President with
a singularly powerful forum in which to make his case on matters of
foreign policy.
While the executive branch has assumed general authority over foreign
affairs, for a long time Congress made sure that its power over foreign
trade remained on the eastern end--on the eastern end--of Pennsylvania
Avenue. After all, the Constitution is clear on this point: Congress
has sole authority over trade. Two of the article I clauses as I just
cited deals squarely with that issue, and they are conclusive, namely:
Congress must ``regulate Commerce,'' it has the power to ``regulate
Commerce with foreign Nations'' and has the power to ``lay and collect
. . . Duties, Imposts and Excises.''
For much of this Nation's history, there was little tension between
the legislative and executive branches over trade regulation, unlike
other areas of foreign policy, such as the use of military force.
As I have said on earlier occasions, for the first 150 years or so of
its existence, Congress exercised broad control over foreign trade and
tariffs. Starting in 1934, however, Congress decided that it no longer
wished to unilaterally exercise its power to set tariffs. Accordingly,
Congress delegated to the President in the Reciprocal Trade Agreements
Act of 1934 the authority to negotiate tariff agreements and to
proclaim changes in tariff rates, within certain boundaries set by
Congress. This so-called ``Proclamation Authority'' was periodically
renewed, typically for brief periods of around three years.
It did not take Congress long to decide that it had given away--that
it had delegated--too much trade negotiating authority. The result was
the Trade Expansion Act of 1962 which, among other things, created the
Office of the Special Representative for Trade Negotiations; required
that multilateral trade negotiations include designated members of the
Senate Finance Committee and the House Ways and Means Committee; and
prevented the President from negotiating certain tariff reductions
designated by the Tariff Commission.
Congress soon discovered that the Trade Expansion Act was not enough
to rein in a newly emboldened executive branch, which set about seizing
as much control over foreign trade as it could get away with--and then
some! The first shoe to fall was the U.S.-Canada Automotive Products
Agreement of 1965, which the administration secretly negotiated for
over a year without so much as notifying Congress. When President
Johnson sent the Agreement to Congress for approval, presenting it as a
fait accompli which needed only a legislative rubber stamp, a number of
my colleagues were disconcerted at what they viewed as his high-
handedness. Many resented the President's usurpation of Congress'
rightful role in trade matters. And I suspect that many others wish
that they had then stood up for congressional prerogatives rather than
permitting the executive to accumulate still broader powers over trade.
Instead, members adopted a course of conciliation and appeasement; they
should have known, as history so often reminds us, that nothing,
nothing, whets the appetite for power so much as a tender morsel of the
substance.
The other shoe dangled briefly before falling to the floor with a
resounding crash a few years later. This time, the issue was the 1964-
67 Kennedy Round of the General Agreement on Tariffs and Trade, or
GATT. At the time, tariffs were relatively low, which meant that more
attention was focused on non-tariff barriers. This posed a problem for
congressional oversight. After all, while tariff changes could be
restricted within a designated range of percentage rates, it was much
more difficult to provide precise limits on the negotiation of non-
tariff barriers. During the second session of the 89th Congress the
Senate therefore adopted a concurrent resolution, S. Con. Res. 100,
``urging the President to instruct U.S. negotiators in Geneva to
bargain only on provisions authorized in the Trade Expansion Act of
1962.''
Now, what was the President's response to this clear, explicit
instruction from the Senate? As best I can determine, the President
simply cast those directions aside, for he promptly entered into two
non-tariff barrier agreements that the 1962 Act had not authorized. One
of these agreements was an antidumping code, for which President
Johnson claimed ``sole executive agreement authority.'' I was a member
of the Senate back then, and let me assure you that we did not look
kindly on the President's blatant refusal to follow our instructions or
those of the Constitution. Our response was to state unequivocally that
the President's agreement did not supersede domestic law or limit the
Tariff Commission's statutory discretion to implement the antidumping
laws. Congress made clear that the President's antidumping agreement
would be followed only in cases where it did not conflict with standing
law; and Congress reiterated that no President--not even that master
arm-twister, Lyndon Baines Johnson!--could encroach upon Congress'
power to make the laws.
The second non-tariff agreement that President Johnson entered into
without congressional authorization was the repeal of the American
Selling Price method of customs valuation. Once again, the President
asserted his authority to make--or, in this case, to repeal--the laws.
It is just what we are seeing happen in the case of line-item veto.
Congress has given the President the authority to repeal laws. Shame,
shame on Congress. Once again, and to its everlasting credit, Congress
stood firm. We condemned President Johnson's refusal to heed the
Senate's instructions and we rejected his outrageous belief that
``executive authority'' allowed him to make trade agreements that
changed U.S. domestic law! Few scholars, today, of course, would agree
with the President's position, but the matter was less clearly defined
then. And, Mr. President, I for one am relieved that Congress stood
fast in defense of its constitutional powers. I wish it would wake up
one day and read history and read the Constitution again.
[[Page S11950]]
The battle was not over, however. President Nixon continued his
predecessor's attempts to usurp Congress' trade authority, though this
time by persuasion rather than by intimidation. The different tactics
of Presidents Johnson and Nixon towards the same goal may say a lot
about their respective personalities and presidencies. President
Johnson had launched a frontal attack upon Congress, relying on brute
force and his own, ample powers of persuasion to intimidate the
legislature into granting him greater trade power. Nixon, however, took
a different tack; rather than storming the barricades of Congress, he
tried to convince us to open the gates to him.
The President made a powerful pitch for Congress granting him the
ability to unilaterally change domestic law. He declared, with a fervor
that subsequent fast track supporters have echoed, that the ability of
the country to enter into trade agreements hung in the balance. The
future of the United States itself was in jeopardy unless Congress
would delegate to him--you will be hearing the same thing today; the
United States was in jeopardy unless Congress would delegate to him--
the authority to proclaim all changes to U.S. law necessitated by a
trade agreement. Now, how prosperous. I will not dwell on the obvious
constitutional infirmities of Nixon's proposal; suffice it to say that
giving the President the power to proclaim changes to U.S. law might
have raised a few eyebrows at the Constitutional Convention! Don't you
think so? It might have raised a few eyebrows up there with that
illustrious group of men that included James Madison, Hamilton,
Elbridge Gerry, and others. You would have seen some eyebrows going up
and down. Our Constitution's framers knew full well that lawmaking by
Executive fiat is the very definition of tyranny.
I wish that this story of the executive branch's attempt to seize the
powers of the legislative had a happier ending; one of the sad truths
known to all historians is that, in real life, the endings are so often
confused or disappointing. President Nixon did not, of course, win the
authority to proclaim changes to domestic law. However, he did succeed
in pressuring Congress to grant him the authority to negotiate certain
trade agreements which Congress might neither amend nor debate
extensively: what we now simply call ``fast track.'' The President's
invocation of the national interest, and the fears he raised that,
without fast track--and we are hearing the same siren call today--he
would be unable to implement an effective trade policy for the United
States, and it won the day. In a moment of weakness--and Congress has
had its moments of weakness, as in this instance--Congress allowed
itself to be seduced by the President's rhetoric and his appeal to
patriotic duty; and a short time later, lo and behold, fast track was
born.
Well, today, Mr. President, history appears to be repeating itself.
Once again, the air is filled with the dire, somber predictions about
what will happen if fast track is not approved. I read that there are
all kinds of trading, all kinds of promises being made, and we are
seeing arms twisted out of shape--no bones broken, you understand, but
just arms being twisted. Once again, we have a President who appeals to
national interest and insists that he will be unable to negotiate trade
agreements without fast track. Once again, Members have ears that
cannot hear and eyes that cannot see. Once again, we have a Congress
that appears overawed by Executive authority and unwilling to assert
its rightful role in regulating trade--in fact, a Congress that is
quite willing, perhaps happy, as was the Roman senate in that case, to
hand off another of its duties to a dictator or to an emperor--in our
case, happy to hand off another of its constitutional duties to the
Executive.
I am sure that most of the viewing public must wonder why any elected
official would willingly give up some of the power of the people, the
power that, under the Constitution, is to be exercised by elected
representatives of the people. Power, after all, they must imagine, is
what politicians crave most.
Oh, that we could review again the story of Lucius Quinctius
Cincinnatus, who in the year 458 B.C. was called upon by a delegation
from the Roman senate. And upon inquiring why this delegation had come
to him to interrupt his plowing of his small farm of three acres
alongside the Tiber River, he was informed that the senate had decided
to thrust upon him the power of a dictator so that he could rid Rome of
the threat of certain tribes to the east, the Aequians. And being the
loyal patriot that he was, Cincinnatus turned to his wife Racilia and
said, ``We may not have enough food to live on this winter because we
won't be able to sow our fields.'' Nevertheless, he wiped his
perspiring forehead, took on the regalia of a dictator, and loyally
assumed the responsibilities and duties that the Roman senate had
placed upon him. He rid the city of Rome of the threats, and he
relieved the Roman legions that were being surrounded by the armies of
the tribes to the east. Within 16 days, he had accomplished this
mission. And he turned back the powers of dictatorship.
So there was the old-fashioned model of simplicity, the old-fashioned
model of one who did not seek power, who did not want power. He did not
want the power thrust upon him, but he willingly gave up this power.
So, today, the people of the United States, I am sure, feel that
power is what politicians most crave. Isn't it the thirst for power
that causes politicians to chase campaign money like a hound on the
scent of a fox? Isn't it power that opens doors, rolls out red carpets,
and serves up free food and drink? Isn't it really power, more often
than character, that invites the respect of others? So how can the
public possibly accept the notion that Congress is actually giving up
some of its power--its constitutional power--through fast track?
Now, I am not claiming that the fast track legislation is
unconstitutional; I am simply saying that the Congress is willingly
giving up much of its power under the Constitution through fast track--
not only giving it up, but saying: here it is, take it, relieve me of
it.
Perhaps, in this age of television, in which the 30-second sound bite
is preferable to a complete and meaningful discussion of issues, some
politicians have come to the realization that it is easy, perhaps
preferable, to retain the illusion of power, without actually having to
be saddled with any of the burdensome responsibility that comes with
true power. They would rather not have it because it carries with it
responsibilities.
Think about that. If we give up the power of Congress, we no longer
have to take the heat for bad decisions, do we? We can just point the
finger. We can take those letters from angry constituents and say,
``Sorry, not me. It is not my fault. Blame the President. That is his
power now. He did that.''
How much nicer will our reelection campaigns be? Not having to run
for 3 years, it would be much nicer for me, much easier for me, to say,
``That wasn't my responsibility.'' What will our opponents be able to
complain about? How can they possibly run negative ads against us when
we have given all of our responsibility to somebody else?
I can see the campaign ads now. ``Vote for me. I didn't do anything,
but I sure looked good not doing it.'' And our opponents could retort,
``Don't vote for him. I cannot attach any blame to him for anything,
but he has big ears.'' So there we have it. If we hand over all of our
powers, and thus all of our responsibilities, then we can't be blamed
for anything. All we need to do is keep our hair well coiffed, buy
fancy suits, have a nip here and a tuck there, keep a list of snappy
sound bites in our pocket--that's all it will require to be an
invincible political candidate.
Is this what we really want? Is this what the American public out
there deserves? Certainly not. We were elected to do a job--to protect
and defend the Constitution of the United States. Actually, we took an
oath to support and defend the Constitution of the United States. How
many of us have read it lately? We certainly are doing a sad job of it
when we agree to bind ourselves to fast track and to lie prostrate,
waiting for the executive caboose to rumble over us.
I said a few moments ago that history seemed to be repeating itself.
And others have said that, and for good reason. Lord Byron said,
``History with all its volumes vast hath but one page.'' Cicero said,
``To be ignorant of that
[[Page S11951]]
which occurred before you were born is to remain always a child.''
So history is repeating itself. I wonder why that is. God created
water and other things in the beginning. He created water, H20--two
parts of hydrogen and one part of oxygen. And it hasn't changed. It is
still the same. It is still H20. It is still two parts of hydrogen and
one part oxygen. Well, human nature hasn't changed either from the
beginning. It changed through Abel. Abel's blood cried out from the
ground. Human nature hasn't changed. We are still a slave of it.
So history seems to be repeating itself because human nature hasn't
changed. Today, I urge my colleagues to study history: Stand firm. Do
not give up your constitutional responsibility. Do not rise to the bait
offered by those who accuse you of protectionism; the cause of freer
and fairer trade is not served by Congress abdicating its power. Do not
be fooled into thinking that no country will negotiate with the world's
foremost economic power because of concern about how that country's
legislative branch conducts its debates; the foolishness of that
argument should be self-evident. And don't allow the threats,
cajolements, incentives, rewards, punishments or imprecations that the
administration may cast your way; don't allow these to sway your
decision. I hope that the House will stiffen--stiffen its opposition to
fast track. It is time to resist the executive's encroachments on the
prerogatives of Congress. It is time, Mr. President, for Congress to
throw off its cloak of humility and deference and reverence for the
executive and to assert its rightful constitutional role in the
regulation of commerce with foreign nations.
Mr. President, recent polls have illustrated how ill-informed most
Americans are about their Constitution. Oh, they like it, all right,
but few of them can accurately answer or debate the questions about it.
Even fewer, I would posit, understand how well and how carefully the
Constitution balances the powers given to the three branches of
Government--a balance constructed by the Founding Fathers as a defense
against the evils of one-man rule. Our Founding Fathers wanted to
escape the tyranny that a king can impose over a subservient and
subjugated people. And that is why our forefathers fought the American
Revolution. That is why lives were risked, and that is why lives were
lost. Our Founding Fathers knew that every President would be tempted
to amass power to himself, and they hoped that the combined strength of
the elected representatives in Congress could check those power grabs.
Of course, there were those at the Convention who were concerned
about the thirst of the legislative branch for power and how it might
encroach on the powers of the President. But they could not foresee the
day when we would have political parties. They could not foresee the
day when the President of the United States would be the titular head
of a political party; how he would command hundreds and thousands of
patronage positions. They could not foresee the day when television
would bring to the American people the news of the second--not the news
of the minute, but the news of the second.
Isaiah, a great prophet, was right when he said:
Prepare ye the way of the Lord, make straight in the desert
a highway for our God.
Every valley shall be exalted, and every mountain and hill
shall be made low: and the crooked shall be made straight,
and the rough places plain:
And the glory of the Lord shall be revealed, and all flesh
shall see it together.
And that is true. Isn't television exalting the valleys and making
low the mountains and the hills? Isn't all flesh seeing the glory of
the Lord together?
There came a time when the clock struck and we had the underocean
cable, the wireless telegraph, the telephone, the diesel motor train,
the airplane--all of these things. And by all of these things, radio
and television, the printing press--by all of these things, then, the
glory of the Lord has been revealed in all of the globe. And Isaiah's
prophecy has come true.
So, our Founding Fathers could not possibly have foreseen the time
when Americans would have these wonderful inventions. And when the
President would have, at the snap of his finger, all of the media in
that White House gather around his bully pulpit. They could not foresee
these things.
For the most part, this system has worked. And I hope and pray that
it will continue to work. Thus, I say to my colleagues in the House and
here: Stand firm. Hold fast, and together let us oppose this fast track
to nowhere.
Mr. President, I yield the floor. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DASCHLE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________