[Congressional Record Volume 148, Number 137 (Thursday, October 17, 2002)]
[Senate]
[Pages S10659-S10661]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONGRESSIONAL-EXECUTIVE CONSULTATION ON TRADE
Mr. BAUCUS. Mr. President, in the coming weeks, the Finance Committee
will be working closely with the Office of the U.S. Trade
Representative to develop written Guidelines on consultations between
the Administration and Congress in trade negotiations. These Guidelines
will be our roadmap for collaboration between the Executive and
Legislative Branches on trade negotiations for the next five years.
They will be the basis for the partnership of equals called for by the
Trade Act of 2002.
The trade negotiation agenda promises to be busy. Even before passage
of the Trade Act, work was under way in the Doha Round of WTO
negotiations and in the Free Trade Area of the Americas negotiations.
USTR also was busy concluding free trade agreements with Chile and
Singapore. Since passage of the Trade Act, USTR has expressed the
Administration's interest in beginning FTA negotiations with Morocco,
Central America, the Southern African Customs Union, and Australia.
This busy agenda requires maximum clarity in the rules governing
interaction between the Administration and Congress. Clear rules will
form a foundation for a common understanding of how we bring trade
agreements from the concept phase to the implementation phase. This
common understanding will help ensure a smooth process, with few if any
surprises or bumps in the road.
The Trade Act defines the scope of coverage of the contemplated
Guidelines on trade negotiations. Specifically, the Guidelines are
required to address: the frequency and nature of briefings on the
status of negotiations; Member and staff access to pertinent
negotiating documents; coordination between the Trade Representative
and the Congressional Oversight Group at all critical periods during
negotiating sessions, including at negotiation sites; and consultations
regarding compliance with and enforcement of trade agreement
obligations.
The Guidelines also must identify a time frame for the President's
transmittal of labor rights reports concerning the countries with which
the United States concludes trade agreements.
The Trade Act contemplates collaboration among USTR, the House Ways
and Means Committee and the Senate Finance Committee in developing the
Guidelines. I would like to use this opportunity to propose specific
provisions that should be included in the Guidelines to maximize the
potential for a
[[Page S10660]]
true partnership between the Legislative and Executive branches.
The first issue that needs to be addressed is access to negotiating
documents. When U.S. negotiators prepare to make an offer to their
foreign counterparts, Congressional trade advisers and staff must be
able to review the proposed offer in time to provide meaningful input.
In general, trade advisers and staff should be able to see such
documents not less than two weeks before U.S. negotiators present their
offer to our negotiating partners. This will give trade advisers time
to convey comments and make recommendations, with a reasonable
expectation that their comments and recommendations will receive
serious consideration.
By the same token, when another country makes an offer during the
course of a negotiating session, that offer should promptly be made
available to Congressional trade advisers and staff. This will enable
trade advisers to keep abreast of the give-and-take of negotiations and
to provide intelligent input into the development of the U.S. position.
Second, Congressional trade advisers and staff should have access to
regularly scheduled negotiating sessions. I know that some in the
Administration will bridle at this suggestion, citing separation of
powers concerns. However, I do not think those concerns are warranted.
I am not suggesting that trade advisers or staff actually engage in
negotiations. I am suggesting only that they attend as observers. This
level of Congressional involvement in negotiations has well established
precedents. A recent study by the Congressional Research Service on the
role of the Senate in treaties and other international agreements
catalogued instances of Congressional inclusion in delegations
stretching back to negotiations with Spain in 1898 and continuing to
the present day.
I ask unanimous consent that the relevant pages of this lengthy CRS
study be printed in the Record at the conclusion of this statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. BAUCUS. In the early part of the last century, Presidents Harding
and Hoover actually designated Senators as delegates, not merely
observers, to arms limitation negotiations. President Truman included
Members of Congress in the delegations that negotiated the
establishment of the United Nations and the North Atlantic Treaty.
More recently, a special Senate Arms Control Observers Group was
created in 1985 to oversee negotiations that led to the first Strategic
Arms Reduction Treaty. It included distinguished members of this body,
including Senators Lugar, Stevens, Nunn, Pell, Wallop, Moynihan,
Kennedy, Gore, Warner, and Nickles. President Reagan embraced this
endeavor, precisely because he knew that a close working relationship
with the Senate at the beginning of negotiations would increase the
likelihood of ratification at the conclusion.
Indeed, the history of Congressional involvement in the negotiation
of treaties and other international agreements has its roots in the
very origins of our Nation. Until the closing days of the
Constitutional Convention of 1787, the Framers had intended for the
Senate to have the sole authority to make treaties. And in the
Federalist Papers, Alexander Hamilton acknowledged that treaty making
``will be found to partake more of the legislative than of the
executive character . . .''
The well-recognized utility of Congressional involvement in treaty
and international agreement negotiation applies with even greater force
when it comes to international trade. For here, the making of
international agreements intersects with the Constitution's express
grant of authority to Congress to regulate commerce with foreign
nations.
The statute that framed trade negotiations for the last quarter
century, the Trade Act of 1974, contemplated a close working
relationship between Congress and the Administration. Thus, during the
Tokyo Round and Uruguay Round of multinational trade negotiations,
staff of the Finance Committee and the House Ways and Means Committee
traveled regularly to Geneva. They were included in U.S. Trade
Representative staff meetings and observed negotiations of plurilateral
and multilateral agreements. They had regular access to cable traffic
and other negotiating documents. By all accounts, this process worked
well. Staff, and, in turn, Members were kept well informed of the
progress of negotiations, which helped to secure Congressional support
for the resulting agreements.
In fact, there are numerous illustrations of close interaction
between Executive and Legislative Branches in the trade negotiation
arena. I myself have attended trade negotiating sessions on a number of
occasions. Just last year, my staff and I attended a session of the
Free Trade Area of the Americas negotiations in Quebec City. Before
that, I attended some sessions of the mid-term meeting of the Uruguay
Round negotiations in Montreal. I know that Members of Congress also
have been included in delegations to WTO Ministerial meetings in
Singapore and Seattle. And, I understand that during the Uruguay Round,
Members traveled to Geneva at key junctures in negotiations on trade
remedy laws, and were included in the official delegation to a
Ministerial meeting in Brussels.
Even in the period from 1994 to 2002, when fast track negotiating
authority lapsed along with the express mandate for a Congressional-
Executive partnership on trade, Members of Congress sought to remain
closely involved. For example, I understand that my friend Senator
Grassley sought permission for staff of the General Accounting Office
to attend certain negotiations, in order to keep Congress well
informed.
Now, fast track has been renewed. Once again, we have an express
mandate for a Congressional-Executive partnership on trade. Indeed, the
Trade Act of 2002 contemplates an even closer working relationship
between Congress and the Administration than the Trade Act of 1974. It
is time to revive and strengthen the practices that solidified a close,
robust working relationship in the past.
Given the long history of Legislative-Executive partnership in
negotiating in a whole host of sensitive areas, given the
constitutional role of Congress when it comes to regulation of commerce
with foreign nations, and given the policy articulated in the Trade Act
of 2002, I see little basis for excluding Congressional observers from
trade negotiations.
Third, the Guidelines should set forth a clear schedule and format
for consultations in connection with negotiating sessions. At a
minimum, negotiators should meet with Congressional advisers' staff
shortly before regularly scheduled negotiating sessions and shortly
after the conclusion of such sessions. To the extent practicable, the
Administration participants in these consultations should be the
individuals negotiating on the subjects at issue, as opposed to their
supervisors.
Consultations should be an opportunity for negotiators to lay out, in
detail, their plan of action for upcoming talks and to receive and
respond to input from Congressional advisers. Whenever practicable,
consultations should be accompanied by documents pertaining to the
negotiation at issue. If advisers of staff make recommendations during
consultation sessions, arrangements should be made for negotiators to
respond following consideration of those recommendations.
Additionally, to the extent that Congressional advisers or staff are
unable to attend negotiating sessions, arrangements should be made to
provide briefings by phone during the negotiations.
The key point here is that it is the quality as much as the quantity
of negotiations that counts. It matters little that the Administration
briefed Congressional advisers a hundred times in connection with a
given negotiations, if the briefings amount to impressionistic
summaries with no meaningful opportunity for advisers to offer input.
Fourth, the Guidelines must set forth a plan to keep Congressional
advisers fully and timely informed of efforts to monitor and enforce
trade agreements. In any trade agreement, follow up is critical. If
compliance is spotty, the agreement is not worth the paper it is
written on. Also, monitoring and enforcement help to identify
provisions that might be modified in future trade agreements.
Currently, Congressional advisers get briefed when a formal dispute
arises or
[[Page S10661]]
sanctions are threatened or imposed. Keeping Congressional advisers in
the monitoring and enforcement loop tends to be episodic. It should be
systematic.
The Guidelines should provide for consultations with Congressional
advisers on monitoring and enforcement at least every two months. These
consultations should not just highlight problems. They should provide a
complete picture of how the Executive Branch is deploying its
monitoring and enforcement resources. They should identify where these
efforts are succeeding, as well as where they require reenforcement.
In conclusion, the Trade Act of 2002 represents a watershed in
relations between the Executive and Legislative Branches when it comes
to trade policy and negotiations. Before the Trade Act, the Executive
Branch generally took the lead, and the involvement of Congressional
advisers tended to be cursory and episodic. In the Trade Act, Congress
sent a clear message that the old way will not do.
From now on, the involvement of Congressional advisers in developing
trade policy and negotiations must be in depth and systematic. Congress
can no longer be an afterthought. The Trade Act establishes a
partnership of equals. It recognizes that Congress's constitutional
authority to regulate foreign trade and the President's constitutional
authority to negotiate with foreign nations are interdependent. It
requires a working relationship that reflects that interdependence.
Our first opportunity to memorialize this new, interdependent
relationship is only weeks away. I am very hopeful that the
Administration will work closely with us in developing the Guidelines
to make the partnership of equals a reality.
Exhibit 1
Treaties and Other International Agreements: The Role of the United
States Senate
On occasion Senators or Representatives have served as
members of or advisers to the U.S. delegation negotiating a
treaty. The practice has occurred throughout American
history. In September 1898, President William McKinley
appointed three Senators to a commission to negotiate a
treaty with Spain. President Warren G. Harding appointed
Senators Henry Cabot Lodge and Oscar Underwood as delegates
to the Conference on the Limitation of Armaments in 1921 and
1922 which resulted in four treaties, and President Hoover
appointed two Senators to the London Naval Arms Limitation
Conference in 1930.
The practice has increased since the end of the Second
World War, in part because President Wilson's lack of
inclusion of any Senators in the American delegation to the
Paris Peace Conference was considered one of the reasons for
the failure of the Versailles Treaty. Four of the eight
members of the official U.S. delegation to the San Francisco
Conference establishing the United Nations were Members of
Congress: Senators Tom Connally and Arthur Vandenberg and
Representatives Sol Bloom and Charles A. Eaton.
There has been some controversy over active Members of
Congress serving on such delegations. When President James
Madison appointed Senator James A. Bayard and Speaker of the
House Henry Clay to the commission that negotiated the Treaty
of Ghent in 1814, both resigned from Congress to undertake
the task. More recently, as in the annual appointment of
Senators or Members of Congress to be among the U.S.
representatives to the United Nations General Assembly,
Members have participated in delegations without resigning,
and many observers consider it ``now common practice and no
longer challenged.''
One issue has been whether service by a Member of Congress
on a delegation violated Article I, Section 6 of the
Constitution. This section prohibits Senators or
Representatives during their terms from being appointed to a
civil office if it has been created or its emoluments
increased during their terms, and prohibits a person holding
office to be a Member of the Senate or House. Some contend
that membership on a negotiating delegation constitutes
holding an office while others contend that because of its
temporary nature it is not.
Another issue concerns the separation of powers. One view
is that as a member of a negotiating delegation a Senator
would be subject to the instructions of the President and
would face a conflict of interest when later required to vote
on the treaty in the Senate. Others contend that
congressional members of delegations may insist on their
independence of action and that in any event upon resuming
their legislative duties have a right and duty to act
independently of the executive branch on matters concerning
the treaty.
A compromise solution has been to appoint Members of
Congress as advisers or observers, rather than as members
of the delegation. The administration has on numerous
occasions invited one or more Senators and Members of
Congress or congressional staff to serve as advisers to
negotiations of multilateral treaties. In 1991 and 1992,
for example, Members of Congress and congressional staff
were included as advisers and observers in the U.S.
delegations to the United Nations Conference on
Environment and Development and its preparatory meetings.
In 1992, congressional staff advisers were included in the
delegations to the World Administrative Radio Conference
(WARC) of the International Radio Consultative Committee
(CCIR) of the International Telecommunications Union.
In the early 1990s, Congress took initiatives to assure
congressional observers. The Senate and House each designated
an observer group for strategic arms reductions talks with
the Soviet Union that began in 1985 and culminated with the
Strategic Arms Reduction Treaty (START) approved by the
Senate on October 1, 1992. In 1991, the Senate established a
Senate World Climate Convention Observer Group. As of late
2000, at least two ongoing groups of Senate observers
existed:
1. Senate National Security Working Group.--This is a
bipartisan group of Senators who ``act as official observers
to negotiations * * * on the reduction or limitation of
nuclear weapons, conventional weapons or weapons of mass
destruction; the reduction, limitation, or control of missile
defenses; or related export controls.''
2. Senate Observer Group on U.N. Climate Change
Negotiations.--This is a ``bipartisan group of Senators,
appointed by the Majority and Minority Leaders'' to monitor
``the status of negotiations on global climate change and
report[ing] periodically to the Senate * * *.''
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