By Joe Firestone, Ph.D., Managing Director, CEO of the Knowledge Management Consortium International (KMCI), and Director of KMCI’s CKIM Certificate program. He taught political science as the graduate and undergraduate level and blogs regularly at Corrente, Firedoglake and New Economic Perspectives. Originally published at New Economic Perspectives
So, on May 22, the Trade Promotion Authority (TPA) (“Fast Track”) Bill passed the Senate 62 – 37, with 14 Democrats defecting to the pro-Fast TracK/Trade-Pacific Partnership (TPP) forces. However, all was not wine and roses for the Administration and Fast Track/TPP proponents in the Senate.
First, the pro-TPP forces sustained a temporary defeat on May 12, when the Senate would not approve debating Fast Track, introducing delay into the process. The problem was quickly fixed with agreements to consider and vote on related issues such as Trade Adjustment Assistance, forced child labor, and currency manipulation outside of Fast Track. But nevertheless the glitch was unanticipated, and looked bad for an Administration wanting clear sailing in the Senate for Fast Track.
Second, an amendment to Fast Track unexpectedly snuck through the Senate providing for banning or throwing out nations practicing human trafficking. This amendment is regarded as a “poison pill” that will prevent Malaysia from being included in the TPP, with unknown impact on other possible signators.
At a minimum, the Administration, if it is successful in getting Fast Track through the House, will want this amendment eliminated from the bill, making it necessary to either send Fast Track back to the Senate for further amendment bringing it into agreement with the House, or, alternatively, to go to a Conference committee of the two Houses of Congress, where the “poison pill” would be dissolved. Even if one of these alternatives is successful, the result will be harmful to the Administration in two ways.
First, will weaken the confidence of the TPP negotiating partners that the President can deliver approval of the final TPP agreement by the Congress. And, second, it will delay getting to a final up or down vote in the Congress which the Administration is anxious to get before the end of this calendar year.
Meanwhile, the action now moves to the House, where the Administration’s chances of passing Fast Track have always been more uncertain than they were in the Senate, and where John Boehner seems reluctant to schedule a vote without significant Democratic support, and also without increasing the likelihood that 40 – 45 tea party Republicans will drop their opposition to the bill in the face of vocal opposition from Rush Limbaugh, Laura Ingraham, Matt Drudge, and tea party media phalanx more generally. There is widespread feeling that if Fast Track and TPP aren’t concluded by the end of the year, then it will be impossible to get Congress to vote on the TPP in an election year, though I wouldn’t discount the possibility that a lame duck Congress might give the lame duck President his fondest wish after the election.
So, this sets the House up as the venue for the most intense fight over Fast Track/TPP yet. It is in the House where the until now predominantly progressive legislative public opposition to the TPP could pick up the tea party conservative support needed to defeat the Administration’s proposals and any fig leaf compromises designed to dress them up cosmetically, without changing the reality of corporate dominated ISDS sovereignty over national governments. So, where do we go from here in fighting Fast Track/TPP in the House?
I’ll take up that question in a future post. Here, I want to recognize that even though opponents of Fast Track/TPP like myself have to give it all we’ve got to ensure that the House is the graveyard of both, we also must find the energy, time, and resources to plan what we ought to do if and when the House eliminates the poisoned pill and then we have another Fast Track round in the Senate.
Such a contingency plan must consider three likely alternative possibilities: that 1) the Senate attempts to pass a revised bill aligning itself with the House, 2) the Senate decides to pursue such an alignment through a Conference committee of both Houses to arrive at a common bill, and 3) the House just accepts the Senate version of Fast Track with its “poison pill.” Let’s look at the third possibility first.
If the House accepts the Senate version, then the President will have gotten his Fast Track, albeit with its poison pill, and then the opponents of the TPP will have a difficult time getting a “no” vote on that bill, in a Senate which passed Fast Track with 62 votes. On the other hand, the President may still have difficulties with such a Fast Track bill if its outcome is Malaysia’s defection from the TPP negotiations due to the human trafficking amendment, followed by the defection of other possible signators responding to the failure to successfully complete an agreement with that nation.
However, these possible consequences of passing Fast Track with the poison pill may not be as likely as the alternative that the President gives assurances to Malaysia that he will not enforce the human trafficking amendment. Malaysia is likely to think that such assurances aren’t good enough since the President can only keep such an informal agreement during his term in office. However, against that objection, the President can reply that if a Republican succeeds him, then they too, will be reluctant to enforce the amendment against Malaysia, and that if Hillary Clinton succeeds him, the likelihood, based on her political networks and previous support of “free trade” is that she, too will not enforce the prohibition against human trafficking either, though she may be not be able to stomach Malaysians trafficking in women and girls.
If such reasoning is still unconvincing to the Malaysians, then the Administration can point out to them that since the agreement is a Congressional-Executive Agreement rather than a treaty, there are legal grounds for Malaysia simply withdrawing, since the United States would never committed to a full-blown TPP treaty with it, if it believes that the US hasn’t held to the assurances the Administration may offer. So, the likely outcome of this scenario is that “the poison pill” may not be as poisonous as it appears, and that Malaysia will, in the end, have little trouble trying out the agreement in 2016, at least until it has a chance to evaluate how Obama and his successors treat the Menendez amendment.
So, in short, if the House passes the Senate bill without change, then the Administration may just take the bill as it is and run with it. In that case, the response of opponents must be continuous public protest and a variety of other efforts against the bill for the remainder of the Obama Administration. Such continuing pressure won’t make the Administration back off the agreement. It will still be the law of the land, but opponents can make its repeal a very potent 2016 campaign issue if they emphasize the sovereignty infringements enabled in it and the Congress’s betrayal of national, state, and local sovereignty and the public interest.
What if the Senate attempts to pass a revised Fast Track bill aligning itself with any changes in Fast Track made by the House?. This is probably less likely than other alternatives because when House and Senate bills differ, the leaders in each House normally prefer harmonizing the bills through using a Conference Committee staffed by representatives of both Houses. But, if the choice is made by Mitch McConnell to pass a revised Senate bill identical to what the House passes, then we can distinguish two situations.
First, if the House passes a bill removing the poison pill, then McConnell can try to pass a bill without it too. And second, if the House passes a revised Fast Track with the poison pill amendment, as well as some others, like a tough currency manipulation prohibition amendment, and/or an amendment eliminating or constraining the use of ISDS tribunals to trump national level legislation regarding the general welfare, then McConnell can try to pass that too on the theory that a weak Fast Track is better than no Fast Track at all.
In the first case, it is by no means clear that such a bill would pass, since the margin in favor of Fast Track may shrink somewhat if the poison pill is written out of it. Judging from the latest 62-37 vote in the Senate here are only three votes to spare before Fast Track would not be able to clear the 60 vote hurdle.
So, perhaps Fast Track would simply fail at this point, since there are more than a few vulnerable Democratic Senators in 2016 and 2018 who would be risking defeat if Fast Track becomes very unpopular. In addition, there are Republican Senators who voted for Fast Track the first time around, but who may become more wary of such a vote, if the struggle in the House produces a lot of tea party Republican opposition among whom there may be some who would take a pro-TPP vote by their Republican Senator as an opportunity to mount a primary campaign against their incumbent in 2016 or 2018. So, depending on how the House struggle goes it may be harder to get Fast Track through the Senate, the second time around than it was the first.
Opponents of the Fast Track bill can make it much more likely that any revision reaching the Senate dies there the second time around by mounting a ferocious period of protesting and more generalized popular resistance prior to second round Senate consideration. This effort needs to be organized enough and intense enough that the impression is conveyed to Senators that an anti-TPP movement that is intense enough to seek reprisals in the 2016 election and beyond against Senators who vote for the bill. Democratic Senators who are defecting from the Democratic majority, as well as the Republicans voting with the corporations must be persuaded that the best thing for them in 2016 is for Fast Track/TPP to just go away, and that this won’t be the result if they pass Fast Track, but only if they kill it.
Moving to the second case, if a weak Fast Track bill including some tough amendments is passed by the House, then it is doubtful that such a result would be useful to the President, and he might simply pull the plug on efforts to pass such a bill before It was brought up for a Senate vote. If that doesn’t happen, however, and such a bill passes, perhaps because some Senators decide to make a statement about free trade agreements, then that would probably lead to wholesale defections from the negotiating process and the death of the TPP.
Opponents of the TPP can facilitate this outcome, if they mount a strong public resistance campaign strengthening opposition in the House that either defeats Fast Track outright, or increases the number of poison pills in it, from one to three or four, making the bill very unpalatable to US TPP negotiating partners and to the White House
This brings us to the Conference Committee approach. Its outcome will very much depend on who the Conference selections in each House are. These, in turn, will depend on which factions in each House are wavering on Fast Track and need to be persuaded that their views are taken account of in a Conference result that makes them comfortable enough to allow them to vote for the compromise bill hammered out by the two houses.
Since the Senate has already passed a bill with the human trafficking poison pill, and the House is reputed to have much more opposition to Fast Track in both parties than the Senate has, I think it unlikely, that the House conferees will come to the negotiation with a harder position on the human trafficking amendment than the Senate took.
In addition, It is likely that currency manipulation prohibitions, environmental protection, pharmaceutical company, and ISDS-related constraints, regulations, and prohibitions will be favored much more intensely in the House than in the Senate, both because seriously negative impacts of TPP are likely to be felt much more intensely at local levels where Congresspeople must be focused than they are at State levels where the concerns of Senators are aggregated. So, for John Boehner to aggregate enough support for the TPP in his raucous caucus, he may have to conciliate those who feel they must have protection from their constituents in 2016 with other poison pill amendments.
This result may set up a situation in the Conference Committee where a middle position acceptable to both Houses would not be a Fast Track bill with just one poison pill, but one with at least two and perhaps three poison pills. Again, this result would cause the death of Fast Track/TPP for the present and also would take both the Transatlantic Trade and Investment Partnership (TTIP) and the Trade in Services Agreement (TISA) off the agenda for the immediate future.
Again, opponents of these national sovereignty, democracy-destroying, “trade” agreements can help to bring about that outcome by increasing the pressure on Representatives in the House and ultimately on the Senators by facing them with a movement. The movement can call out individual Congresspeople and Senators using appeals, frames, and arguments based on job destruction, labor market, environmental, and regulatory impacts of various kinds, political paralysis, budgetary and austerity impacts and others. All these will be effective in varying degrees based on the segments of the voting population being addressed.
But, in my view, appeals based on none of these will be as intensely felt or as widely accepted as those that emphasize TPP and other “trade” agreements undermining national, state, and local sovereignty and replacing it with Investor State Dispute Settlement (ISDS)-based corporate rule. People can have different opinions about all the other issue areas related to the TPP, but except among a truly small number of people, the idea that corporations and the wealthy ought to establish hegemony over national governments backed by popular sovereignty is extraordinarily illegitimate and repellent.
If support for the TPP and other agreements, in light of the proposed powers to be conferred on the ISDS tribunals can be framed as disloyalty to the various nation states negotiating them, then the agreements can be defeated. A movement that can deliver that message, consistently and powerfully, can rout the politicians favoring the TPP, and still win the day. Let us make sure that such a movement takes wings in the coming weeks and sustains its effort for as long as it takes to end this latest threat to democracy.