[Congressional Record (Bound Edition), Volume 148 (2002), Part 11]
[Senate]
[Pages 15647-15648]
[From the U.S. 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 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

[[Page 15648]]

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 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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