New Trade Agreements Spark Old Divides Over Trade Promotion Authority Renewal

by King & Spalding
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[authors: Alex McLamb and Pat Togni]

In recent weeks, Trade Promotion Authority ("TPA") legislation that would allow the Obama Administration to "fast-track" trade negotiations has come under increased scrutiny as negotiators push to finalize a deal on the Trans-Pacific Partnership ("TPP"). TPA—first enacted in 1974—preserves a Congressional role in trade negotiations between the United States and foreign trading partners. Under TPA, Congress defines U.S. trade objectives and outlines a specific oversight and consultation process for ongoing negotiations. Once negotiators reach a final agreement, Congress votes on that agreement and is not permitted to amend it. The most recent TPA legislation was enacted in 2002 and expired in 2007.

Senate Democrats have voiced concerns regarding the lack of transparency in negotiations between Senate Finance Committee Chairman Max Baucus (D-MT) and House Ways and Means Committee Chairman Dave Camp (R-MI) on the TPA bill. Aides to Baucus have so far been unwilling to share information about the negotiations with fellow Democratic aides. As a result, many Committee Democrats are concerned that any final TPA bill will exclude key priorities. In particular, many Democrats support the inclusion of a provision from the 1988 version of TPA that would allow Congress to strip an agreement of fast-track privileges should it fail meet the objectives laid out by TPA.

TPA renewal faces even stronger opposition in the House, where 151 Democrats recently signed a letter to President Obama coauthored by Reps. Rosa Delauro (D-CT) and George Miller (D-CA) opposing fast-track authority for TPP negotiations. The letter asserts that "'Fast Track' is simply not appropriate for 21st Century agreements and must be replaced." Twenty-two House Republicans also recently expressed opposition to TPA on Constitutional grounds. These and other position statements publicly demand improved transparency in negotiations, stronger congressional oversight, and increased attention to currency manipulation, intellectual property rights, and other new economic issues resulting from globalization.

In response, the Administration and Congressional supporters of TPA argue that fast-track authority remains necessary for broad, high-standard trade negotiations, because it ensures trading partners that U.S. negotiators have the support of Congress when finalizing agreements. Supporters further state that absent TPA, foreign negotiators would hesitate to exchange politically-sensitive concessions, fearing that Congress would subsequently strip provisions that run counter to American interests. In a speech before the U.S.-Japan Business Council, Sen. Baucus forcefully defended TPA as essential to the success of TPP negotiations, calling it the "one thing Congress needs to pass before [TPP] can happen." Despite the growing opposition in both chambers, Sen. Baucus remains confident that TPA legislation will be introduced by the end of the year. In all likelihood, however, any action on TPA legislation would probably not occur until 2014.
 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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