[Congressional Record Volume 148, Number 108 (Thursday, August 1, 2002)]
[Senate]
[Pages S7847-S7849]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TRADE ACT OF 2002
Mr. CORZINE. Madam President, I rise today, sadly, to express my
sincere disappointment with the passage of the Trade Act conference
report.
It is deeply troubling to me. I will go through a number of the
reasons I have
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these feelings and why I think they need to be expressed in an explicit
nature.
I come from a business background, as many know. While I was a very
sympathetic and active promoter of the passage of NAFTA early in the
nineties, I believe in the principle of comparative advantage and
understand that it can work to maintain competition in prices for many
goods and services broadly throughout our society, and in certain
sectors of our economy it certainly can promote job growth.
But on balance, when we look at the nature of a lot of the elements
that are a part of this so-called fast-track trade promotion authority
given today, I think the costs and the benefits don't align themselves
well at all. I feel particularly troubled by the dilution of many of
the elements that were in the Senate bill that went to conference that
really left us in an even weaker position with respect to where we
stand in protecting workers' environmental rights and the ability of
America to represents its own interests in negotiations.
There are also some fine-print issues that I am very concerned
about--the potential for degradation of our antitrust laws and the
ability for American law to be represented on a coequal basis with what
we see as potentially being dictated by trade laws as we go forward. I
will try to itemize some of those.
Again, I understand there is a strong theoretical case for
comparative advantage. But I think when you put it in the specific
context with the fine print of the details we are talking about with
regard to this trade law, this is a very troubling piece of
legislation. And I hope it is one that I am wrong about and that we
will not come to regret over a period of time.
Let me start with the reality that anytime something passes, there
will be shifts in economic fortunes for sectors of the economy. One of
the reasons we fought so hard for trade adjustment authority in the
package in the Senate--and that many of us believed we made a little
progress thereon--was health care benefits and employment insurance.
Some of those stayed. But, in fact, I think we undermined very
seriously the conference report benefits that we were applying in
health insurance versus the simple elementary move from a 75-percent to
a 5-percent tax credit. We undermined the definition of the pool in
which workers would be available.
While we have the language that we are aiding those who lose their
jobs as a result of trade activities and shifts in production offshore,
when you look at the details, it will be very hard for those to be
applicable, and in the practical context of people's lives it is really
a false presentation.
By the way, there are no standards with regard to the health benefits
people will get. There is no premium protection for individuals. The
details just do not match the rhetoric with regard to the hope that I
think we promised.
There is also talk that coverage is going to be broad. But when you
look at the fine print, the fact is that the element of production
shifts doesn't include some of the biggest marketplaces--places where
production is likely to shift because of the applicability of the law
as it stands.
For instance, in fact, Brazil and China and Southeast Asia are
generally left uncovered. If a factory moves out of the State of
Washington or the State of New Jersey and moves to those countries,
they are excluded from some of the definitions of how a shift in
production would apply and whether there is a need for trade
assistance.
While countries such as Jordan, Israel, and the Caribbean Basin, and
the Indian region are included in those definitions, they make up about
5 percent of the American trade, and large blocks of that are in places
left out of the shift in coverage for production. I think it is a real
problem. It is a real problem with the reality of matching the
language.
We talk, particularly in the Senate bill, about substantial resources
for workers who lose their jobs. The conference committee report came
back $30 million below CBO's estimate and $80 million below what the
Senate bill authorized--already a skinny number and one that I think
makes the hope of real job retraining something that is a false hope
for a lot of folks when you translate it into the reality of how it
will work.
Continuing. Labor and environmental standards: We all fought for the
Jordanian standard, the agreement that was negotiated on a specific
trade agreement. It was to make sure that those standards were met in
all future trade agreements.
When the conference agreement came back, we found that it allows for
the preservation of status quo elements with regard to basic
protections for children under 14. That means in Burma, if they are
truly practicing slave labor, they can maintain the status quo in any
kind of trade negotiations. It denies the basic rights of workers to
operate with collective bargaining in countries where they don't
already have it. There is no change for those countries to which we
might want to apply those standards. That is really a quite serious
backing away from the standards that were included in the Jordanian
agreement which I think most people would embrace. And they would have
made for a very serious, positive step forward in our trade
negotiations. This is a very serious backing away that I think really
does undermine the labor standards.
I will not go into details, but there are some provisions that we
have backed away from on environmental standards. We have, basically, a
status quo standard for anyone who enters into these negotiations. That
is a difficult way to approach fair trade, as well as free trade, if
you are looking for those kinds of elements in a legitimate movement
forward in our trade relationships.
With regard to the role of Congress, there was debate on the floor
about Dayton-Craig, which we adopted, which had to do with having a
real challenge to trade remedies in these packages. We pulled back, and
we now have a sense of the Congress. I do not think anybody believes
that is going to seriously impact how this process is going to go
forward. It may sound good for press releases and sound bites, that we
are really being involved in the process, but I do not think it deals
with the facts as we see them. I think it is a serious problem.
There is another element that I also think is truly important with
regard to fast track and an element with regard to the role of
Congress. The conference agreement adds a completely new restriction
that was not in the House bill or the Senate bill, and that would
provide that there is only one privileged resolution per negotiation on
any given trade treaty--one.
We had no restrictions on those in other situations. We could now see
a real weakening of the ability of Congress to have a legitimate role
in debate with regard to the elements of trade negotiating.
Finally, on this particular piece, one element that troubles me the
most is that in many ways we have changed the language, where we are
going to provide greater rights for foreign investors than are
available to U.S. investors under U.S. law. And that is because we just
changed a word in the language to say: Foreign investors should not be
accorded greater substantive rights than U.S. investors. The only thing
new is that we put in the word ``substantive.'' And ``substantive''
leaves it open to trade negotiators to decide what rights are equal or
unequal.
By the time we get done applying that, we could very well see
substantially different treatment for foreign investors than we would
see for U.S. investors. I think it is a definite weakening of what is
appropriate as we go through the application of these trade laws and
needs to be watched very carefully. I suspect it will lead to an
enormous amount of litigation as time goes forward. But a lot of the
decisions with regard to that will be taking place behind closed doors
and by trade negotiators and trade adjustment bodies. So there are a
number of issues that concern me.
There are a couple of other issues I want to cite before I yield the
floor because I think they are also important.
It seems to me, in line with what I was talking about before, we have
put ourselves into a position where foreign investors might very well
have their international disputes resolved by trade negotiators as
opposed to courts.
Let me just remind people that when we were debating this on the
Senate
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floor, we used the example of a Canadian company that sued the State of
California with regard to the use of MTBE. The elected representatives
of the people of California determined that MTBE was not such a good
thing for their health and environmental quality of life. We have that
same proposition in New Jersey.
But the judgment of one of these international trade bodies could
overrule that decision made by the people, in legislation that was
properly passed, if the language is used that we talked about, that
substantive quality principle that was mentioned. I think this is
dangerous as we go forward, and it truly concerns me.
Mostly, I am concerned that the principle of privatization may very
well be subject to rulings from trade bodies making a decision about
whether something is appropriate or not, whether privatization is a
restraint of trade or not. We had a very close vote with regard to the
subject in the Senate, but I think, very possibly, you could see many
services that are provided by State and local governments, and even
Social Security by the Federal Government, being argued that it is a
restraint of or a break in our trade agreements, restricting the
ability of the foreign company to come in and provide those services on
a private basis. This has been certainly challenged in other countries,
and I am very fearful that we have set up a regimen that allows those
kinds of processes to happen.
Finally, there is an area that also is quite concerning to me, and
that deals with some of what I am concerned about with regard to civil
liberties. I am pleased that included in the conference report was the
Senate provision I authored with regard to the Customs inspection of
mail, to make sure you have to get search warrants to look at small
letter carrier mail.
But I am very concerned that the conference report includes a
potentially egregious violation of civil liberties, in my view, and an
expansion which is based on the expansion immunity for Customs
officials. Quite simply, there is a blank check for Customs officers to
engage in illegal behavior, particularly and including racial
profiling.
I think the Presiding Officer knows I have long been an outspoken
opponent of racial profiling. I introduced legislation with Senators
Feingold and Clinton and Representative Conyers in the House, the End
Racial Profiling Act, which really does work against the kind of action
I think we have seen documented with the Customs Service in previous
measures. I think that needs to be addressed.
The President and the Attorney General have recognized that racial
profiling is wrong and must be ended. The President acknowledged that
in his very first State of the Union speech. I think we are taking a
step backwards by providing these immunity provisions on profiling for
Customs officials that are included in this legislation.
Current law provides qualified immunity to Customs agents which is
based on the assessment of what a reasonable officer should have done
in any given situation. This means that the Customs agent is entitled
to immunity from suits if they conduct an unconstitutional search based
on a reasonable but mistaken conclusion that reasonable suspicion
exists. This legislation expands that protection and establishes a new
kind of immunity called good faith immunity.
Essentially, a victim of an unconstitutional search would not be
entitled to relief unless the officer acted in bad faith, a nearly
impossible standard to meet. So I think it is a significant weakening
of the protections in our current law, and I find it dangerous.
In March 2000, the GAO had a report that found that African-American
women were nearly nine times more likely to be subjected to x rays and
customs searches than White women, and they were less than half as
likely to be found carrying any kind of contraband: The whole point of
why racial profiling is not only morally wrong, it is bad law
enforcement, and doesn't lead to better results.
In fact, under the stewardship of Commissioner Ray Kelly of the
Customs Service, they implemented significant changes in policies to
stop the racial profiling that was occurring. I think we are taking a
step backward here. It is just another one of the fine details that one
sees in this conference report that make this not even ideal but, I
believe, bad legislation.
For a whole host of reasons--the dilution of our trade adjustment
authority; the issues with respect to the role of Congress, the role we
rightfully should be playing in this process; the role of foreign
investors in America and their ability to use trade agreements to
supersede U.S. law; some of the civil liberties issues I pointed out
and my concern about the use of the new trade laws to undermine public
responsibility roles; the challenge to privatization that is a
legitimate question that our elected officials should decide, not trade
negotiators--I am led to the conclusion that we have the potential for
what could be a very seriously flawed piece of legislation.
I voted against it in the Senate, and I am even more strongly opposed
to the conference report. I hope I am wrong and the majority in the
Senate are correct. But there are grave dangers embedded in this. We
will need to monitor very carefully the application of this trade law
as we go forward.
I yield the floor.
The PRESIDING OFFICER (Ms. Cantwell). The Senator from Florida.
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