[Congressional Record (Bound Edition), Volume 147 (2001), Part 9]
[Senate]
[Pages 11863-11865]
[From the U.S. Government Publishing Office, www.gpo.gov]



                PRESIDENTIAL TRADE NEGOTIATING AUTHORITY

  Mr. BYRD. Mr. President, I am very much concerned about our loss of 
direction with regard to Presidential trade negotiating authority. Many 
Members of the House, and some of my colleagues here in the Senate, 
advocate a wholesale surrender--a wholesale surrender--of Congress' 
constitutional authority over foreign commerce, as well as the 
evisceration of the normal rules of procedure for the consideration of 
Presidentially negotiated trade agreements.
  I am talking about what is commonly known as ``fast-track,''--fast 
track--though the administration has chosen the less informative 
moniker--the highfalutin, high sounding ``trade promotion authority.'' 
``Trade promotion authority'' sounds good, doesn't it? ``Trade 
promotion authority,'' that is the euphemistic title, I would say--
``trade promotion authority.'' The real title is ``fast-track.''
  What is this fast-track? It means that Congress agrees to consider 
legislation to implement nontariff trade agreements under a procedure 
with mandatory deadlines, no amendments, and limited debate. No 
amendments. Get that. The President claims to need this deviation from 
the traditional prerogatives of Congress so that other countries will 
come to the table for future trade negotiations.
  Before I discuss this very questionable justification--which ignores 
almost the entire history of U.S. trade negotiating authority--I think 
we ought to pause and consider--what?--the Constitution of the United 
States. I hold it in my hand, the Constitution of the United States. 
That is my contract with America, the Constitution of the United 
States.
  Each of us swears allegiance; we put our hand on that Bible up there. 
I did, and swore to support and defend the Constitution of the United 
States against all enemies, foreign and domestic.
  Each of us swears allegiance to this magnificent document. As Justice 
Davis stated in 1866:

       The Constitution of the United States is a law for rulers 
     and people, equally in war and in peace, and covers with the 
     shield of its protection all classes of men, at all times, 
     and under all circumstances. No doctrine, involving more 
     pernicious consequences, was ever invented by the wit of man 
     than that any of its provisions can be suspended during any 
     of the great exigencies of government.

  Ex Parte Milligan, 71 U.S. 2 (1866). This was the case that refused 
to uphold the wide-ranging use of martial law during the Civil War.
  Thus, Mr. President, let us review the Constitution to see what role 
Congress is given with respect to commerce with foreign nations. 
Article 1, section 8, says that ``The Congress shall have power to . . 
. regulate commerce with foreign nations, and among the several states, 
and with the Indian tribes . . . .''
  This Constitution also gives Congress the power ``to lay and collect 
. . . Duties, Imposts, and Excises.'' The President is not given these 
powers. Congress is given these powers. There it is. Read it. The 
President is not given these powers. These powers have been given to 
Congress on an exclusive basis.
  Nor is this the extent of Congress's involvement in matters of 
foreign trade. It scarcely needs to be pointed out that Congress's 
central function, as laid out in the first sentence of the first 
article of the Constitution, is to make the laws of the land. Were it 
not for that first sentence in this Constitution, I would not be here; 
the Presiding Officer would not be here; the Senator from the great 
State of Minnesota, Ohio, Florida, the great States, Alabama, we would 
not be here. Congress makes the laws of the land. Some people in this 
town need to be reminded of that.
  For example, Congress decides whether a particular trade practice in 
the U.S. market is unfair. Congress decides whether foreign steel 
companies can use the U.S. market as a dumping ground, which they have 
been doing, for their subsidized overcapacity. Are we to give this 
authority to the President and make Congress nothing more than a rubber 
stamp in the process of formulating important U.S. laws? As the great 
Chief Justice of the United States John Marshall might have asked: Are 
we ``mere surplusage''? Is the Senate mere surplusage?
  The Founding Fathers' memories were not short. Those memories were 
not occluded by real-time television news, nor were they occluded by 
the proliferation of ``info-tainment.'' The Founding Fathers had a vast 
reservoir of learning, particularly classical learning, to draw upon 
and a treasure trove of political experience.
  Our Founding Fathers were not enamored with the idea of a President 
of the United States who would gather authority unto himself, as had 
been experienced with King George III of England. Most of the 
administrations that have occurred--there have been at least 10 
different Presidents with which I have served; I have never served 
under any President, nor would any of those framers of the Constitution 
think well of me if I thought I served under any President. The framers 
didn't think too much of handing out executive power.
  So this exclusive power to regulate foreign commerce was not centered 
upon the legislative branch by whim or fancy. There were weighty 
considerations of a system founded on carefully balanced powers.
  The U.S. Congress tried to give away some of its constitutional 
authority by granting the President line-item veto power a few years 
back. Fie on a weak-minded Congress that would do that, a Congress that 
didn't know enough and didn't think enough of its constitutional 
prerogatives and powers and duties to withhold that power over the 
purse which it did give the President of the United States. Mr. Clinton 
wanted that power. Most Presidents want that power. Congress was silly 
enough to give the President of the United States that power. It was 
giving away constitutional power that had been vested in this body of 
Government, in the legislative branch.
  Thank God, in that instance at least, for the Supreme Court of the 
United States. It said Congress can't do that. Congress can't give away 
that power that is vested in it, and it alone, by the Constitution of 
the United States.

[[Page 11864]]

  So the U.S. Congress tried to give away some of its power. But, 
ultimately, as I say, that serious error was corrected by the Supreme 
Court. The Supreme Court saved us from ourselves. Hallelujah. Thank God 
for the Supreme Court. Boy, I was with the Supreme Court in that 
instance. Yes, sir. They saved us from ourselves.
  The ancient Roman Senate, on the other hand, was successful in giving 
away the power of the purse. And when it did that, when the ancient 
Roman Senate gave away the power of the purse, first to the dictators 
and then to the emperors, it gave away an important check on the 
executive. First, Sulla became dictator in 82 B.C. He was dictator from 
82 to 80. Then he walked away from the dictatorship, and he became 
counsel in 79. He died in 78 B.C., probably of cancer of the colon.
  Then in 48 B.C., what did the Roman Senate do again? It lost its way, 
lost its memory, lost its nerve, and restored Caesar to the 
dictatorship, Julius Caesar, for a brief period. In 46 B.C., it made 
him dictator for 10 years. Then in 45 B.C., the year before he was 
assassinated, the Roman Senate lost its direction, lost its senses and 
made Caesar dictator for life.
  Well, I don't know whether or when we will ever reach that point. But 
we need to understand how extraordinary, how very extraordinary this 
fast-track authority is that President Bush is running around, over the 
country, asking for--fast-track authority, but he is not calling it 
that. He is calling it something else.
  From 1789 to 1974, Congress faithfully fulfilled the Founders' 
dictates. During those years, Congress showed that it was willing and 
able to supervise commerce with foreign countries. Congress also 
understood the need to be flexible. For example, starting with the 1934 
Reciprocal Trade Act, as trade negotiations became increasingly 
frequent, Congress authorized the President to modify tariffs and 
duties based on negotiations with foreign powers. Such proclamation 
authority has been renewed at regular intervals.
  What happened in 1974? At that time we relegated ourselves to a 
thumb's up or thumb's down role with respect to agreements negotiated 
on the fast track. Stay off that track. Congress agreed to tie its 
hands and gag itself when the President sends up one of these trade 
agreements for consideration.
  Why on Earth, you might ask, would Congress do such a thing? What 
would convince Members of Congress to willingly relinquish a portion of 
our constitutional power and authority? What were Members thinking when 
they agreed to limits on the democratic processes by which our laws are 
made? And why, in light of the fact that extensive debate and the 
freedom to offer amendments are essential to effective lawmaking, would 
Congress decide that we can do without such fundamentally important 
procedures when it comes to trade agreements?
  The U.S. Senate is the foremost upper house in the world today. Why? 
There are many reasons. But two of the main reasons are these. The U.S. 
Senate has the power to amend, and the U.S. Senate is a forum in which 
men and women are able to debate in an unlimited way--they can limit 
themselves; otherwise, in this forum, I can stand on my feet as long as 
my feet will hold me and debate. And nobody--not the President of the 
United States, not the Chair--can take me off my feet, not in this 
body. Nobody. And I am not answerable to anybody for what I say here. 
Our British forebears took care of that when they provided in 1689 that 
there would be freedom of speech in the House of Commons.
  Well, we are doing it to ourselves when we pass fast track. We are 
saying: No amendments. You just either stamp up or down what the 
President sends up here.
  Again, why, in light of the fact that extensive debate and freedom to 
offer amendments are essential to effective lawmaking, would Congress 
decide that we can do without such fundamentally important procedures 
when it comes to trade agreements?
  I submit that, in 1974, we had no idea of what kind of Pandora's box 
we were opening. At that time, international agreements tended to be 
narrowly limited. Consider, for example, the U.S.-Israel Free Trade 
Agreement of 1985. The implementing language of that agreement was all 
of four pages, and it dealt only with tariffs and rules on Government 
Procurement.
  Fast track began to show its true colors with the 1988 U.S.-Canada 
Free Trade Agreement which, despite its title, extended well beyond 
traditional trade issues to address farming, banking, food inspection, 
and other domestic matters.
  The U.S.-Canada agreement required substantial changes to U.S. law, 
addressing everything from local banking rules to telecommunications 
law, to regulations regarding the weight and the length of American 
trucks. These changes were bundled aboard a hefty bill and propelled 
down the fast track before many Members of Congress knew what had hit 
them.
  Most ominously, the U.S.-Canada agreement established the Chapter 19 
dispute resolution procedure. This insidious mechanism, which was only 
supposed to be a stopgap until the U.S. and Canada harmonized their 
trade laws, gives the so-called trade ``experts'' from the two 
countries the authority to interpret the trade laws of the United 
States. We are not talking about judges now. We are not talking about 
persons trained in the laws of the United States. We are talking about 
trade ``experts,'' frequently hired hands for the industries whose 
disputes are under consideration.
  Moreover, unlike our domestic courts, there is no mechanism by which 
American companies that are adversely affected by Chapter 19 panel 
decisions might obtain appellate review. The system simply does not 
work. It goes against fundamental American principles of fairness and 
due process.
  In short, the U.S.-Canada agreement was nothing less than a dagger 
pointed at the heart of American sovereignty. That agreement--and the 
process by which it was concluded--undermined both the legislative and 
judicial authority of the United States.
  So where are we now? Today, American trade negotiators are faced with 
a completely different reality from what it was in 1974. Our trading 
partners know the game--shut out the people and appeal to the elite 
conceptions of a smoothly functioning global economy. In 1993, Lane 
Kirkland, then-president of the AFL-CIO, made an observation about 
NAFTA that is just as pertinent today as it was then, when I voted 
against it. Here is what he said:

       Make no mistake, NAFTA is an agreement conceived and 
     drafted by and for privileged elites, with little genuine 
     regard for how it will affect ordinary citizens on either 
     side of the Mexican border . . . The agreement's 2,000 pages 
     are loaded with trade-enforced protections for property, 
     patents, and profits of multinational corporations, but there 
     are no such protections for workers.

  In the new world of international trade negotiations, our trading 
partners, frequently assisted by their American trade lawyers, place on 
the table their ideas for elaborate changes to U.S. law. For example, 
our free trade area of the American trading partners propose dozens of 
pages of changes to our trade laws, modifications that are intended to 
eviscerate those laws.
  The American workers who would be displaced if those modifications 
were implemented are given no role in this process. None. We, their 
representatives, are given a minimal role, a little teeny-weeny 
portion. But we are not yet voiceless, not yet drowned out by the elite 
consensus on the virtues of free trade. Well, I am for free trade--who 
would not be--as long as it is fair, fair trade. But that is quite 
another matter.
  Let the free traders come to West Virginia. Come on down, Mr. 
President, and talk to those steelworkers over at Weirton. Come on down 
and talk to the steelworkers who are being laid off in Weirton, WV. 
Don't go over to Weirton and burn the flag. Those are patriotic 
citizens over there. But they are losing their jobs. Let the free 
traders come to West Virginia and talk to the steelworkers, talk to 
their families, talk to their neighbors. Let them talk to labor leaders 
from North America and Latin

[[Page 11865]]

America. Let them try to explain why the disintegration of ways of life 
that give both opportunity and security is good ``in the long run.''
  As John Maynard Keynes once wrote, ``Long run is a misleading guide 
to current affairs. In the long run, we are all dead.'' I will add: 
dead, dead, dead.
  I am getting sick and tired of these administrations, Democratic and 
Republican, who run to West Virginia and want the votes there and turn 
around and fail to take a stand for American goods, American 
industries, and American men and women workers.
  John Maynard Keynes also wrote, ``Practical men, who believe 
themselves to be quite exempt from any intellectual influences, are 
usually the slaves of some defunct economist.''
  How many Washington Post editorialists will lose their jobs if our 
trade laws are eviscerated? How many libertarian think tanks will be 
shut down when the free trade dystopia is established? Shall we take 
their views--the views of some defunct economist--as gospel, or shall 
we listen to those who earn their living by the sweat of their brow?
  When God evicted Adam and Eve from the Garden of Eden, they were told 
to earn their bread from the sweat of their brow, and that is why we 
are still doing it. I say listen to those who earn their living by the 
sweat of their brow. Go to Weirton to the steel town; go to Wheeling to 
that steel town, at Wheeling-Pitt with over 4,000 workers. I believe 
that is right. Go over there. Say to them: Boys, get in touch with your 
Senator and get in touch with your House Members and tell them to vote 
for--they do not call it fast track. What is it they call it? It is a 
sugar-coated pill. Tell your Senator to vote for that, and actually 
they will not say it out loud, but that is fast track. Tell your 
Senator to vote for that.
  I am for expanding international trade. Who wouldn't be. But let the 
trade be fair. Let us have a level playing field, and let us not 
neglect our responsibility in this Senate to participate meaningfully 
in the formulation and implementation of U.S. trade policy.
  I am not saying the Senate ought to vote on every duty and every 
tariff on every little toothbrush and every little violin string that 
is sent into this country. I am saying there are some big questions 
this Senate ought to be able to speak to and to vote on. At least on 2, 
3, 4, 5, or 6, let's have a vote by this Senate.
  One way we can reassert our constitutional role with respect to 
foreign trade is to create a Congressional Trade Office modeled after 
the Congressional Budget Office.
  My colleagues might recall this was one of the many ideas discussed 
in the report of the U.S. Trade Deficit Review Commission. Senator 
Baucus and I are working on legislation that would give us a trade 
office with the information resources and expertise necessary to permit 
us to properly discharge our oversight responsibilities.
  That is what we need. We need to exercise our oversight 
responsibility. We cannot do it if we gag ourselves, if we cannot 
speak, if we cannot amend. We cannot fulfill our responsibilities under 
the Constitution. We cannot fulfill our responsibilities to the people 
who sent us here.
  Can anyone guess how many trade agreements have been negotiated 
without fast track? The President is running around saying: Oh, I have 
to have this; I have to have this in order to enter into these trade 
agreements. Can anyone guess how many trade agreements have been 
negotiated without fast track since that extraordinary authority was 
first granted to the President in 1974? The answer is in the hundreds. 
We have had fast track on this Senate floor 5 times in the last 27 
years, but in the meantime, hundreds of trade agreements have been 
negotiated, the most recent examples being the U.S.-Jordan agreement 
and the U.S.-Vietnam agreement.
  I think we need an analysis of all the trade agreements concluded 
over the past 27 years. Let us try to determine if the Founding Fathers 
were completely off the mark when they gave Congress authority over 
foreign commerce.
  I believe that any impartial study of this history will demonstrate 
that we can have trade agreements without surrendering our 
constitutional authority over foreign commerce. If negotiation of trade 
agreements is in the interests of other nations, they will be at the 
table. They will be at the table, in my judgment, Congress or no 
Congress. Is there any serious argument to the contrary?
  Let me be clear. I am thinking of a Presidential nominee some years 
ago who said this. For the moment I have forgotten his name. He said 
this: I didn't say that I didn't say it; I said that I didn't say that 
I said it.
  And then he said: Let me be clear. I didn't say that I didn't say it; 
I said that I didn't say that I said it.
  He said then: Let me be clear--after the audience had laughed.
  Let me be clear. I am not suggesting that we noodle away at a 
Presidentially negotiated trade agreement by considering myriad small 
amendments. No, Congress should not focus on the minutiae. There may, 
however, be a small number of big issues in such an agreement that go 
to the root of our constituents' interests. We must have the authority 
to subject those issues to full debate and, if necessary, amendment.
  In closing, I reiterate that we should put our trust in this document 
which I hold in my hand, the Constitution of the United States--not in 
fast track but in the Constitution of the United States and in the 
people for whom it was drafted and ratified: the people of America.
  Let us not give away even one piece of our national birthright, the 
Constitution, without at least demanding hard proof that its tried and 
true principles must be modified.
  Let us preserve our authority as Members of Congress to participate 
fully in the process of concluding international trade agreements. Let 
us not permit the globalization bandwagon to roll over us, to weaken 
our voices, to sap the vigor of our democratic institutions, and to 
blind us to our national interests and the needs of our communities.
  If we cannot uphold this banner--the Constitution of the United 
States which I hold in my hand--if we cannot uphold this banner, the 
banner of our more than 200-year-old constitutional Republic, if we 
cannot play a constructive role in taming the free-trade leviathan, 
then we are unworthy of our esteemed title.
  Mr. President, I yield the floor.

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