[Congressional Record (Bound Edition), Volume 148 (2002), Part 15]
[Senate]
[Pages 21010-21012]
[From the U.S. 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

[[Page 21011]]

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 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.

[[Page 21012]]

  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 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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