[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

[[Page S11949]]

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.

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