Why “Fast Track” Can Sidetrack Both Science and Democracy

January 27, 2015 | 11:11 am
Celia Wexler
Former contributor

Congress soon will be voting on whether to approve Trade Promotion Authority, or fast-track, a process that expedites approval of trade deals but at the expense of democratic discourse and public and congressional scrutiny and oversight.

Fast-track had dubious benefits when our trade deals were primarily about tariffs. But the process is far more risky today, when trade deals will affect how nations protect their citizens from unsafe chemicals, tainted foods, dangerous drugs and devices, and a polluted environment.

Consider, for example, talks currently underway for the Trans-Atlantic Trade and Investment Partnership (TTIP). These negotiations are being undertaken largely in secret. Even Members of Congress have found it difficult to learn what their own government is doing. Consumer and environmental groups have learned about the substance of the talks through leaked negotiating documents, or because of a recent EU policy that permits the public release of more EU negotiating information. But what we’ve learned is very alarming.

Not about trade

The U.S. and EU have been almost exclusively focused on ways to eliminate what the business community calls “trade irritants” but what most of us consider public protections. Their goal? Regulatory “harmonization” and “coherence.” Those lofty sounding terms may presage a successful effort to adopt standards that offer the lowest protection to citizens of both the EU and US.

The White House has kept many members of Congress in the dark about what's being discussed with the European Union in these trade talks. Photo: Flickr user David

The White House has kept many members of Congress in the dark about what’s being discussed with the European Union in these trade talks. Photo: Flickr user David

For example, a proposed Regulatory Cooperation Council would function like an extra-national White House Office of Management and Budget—overseeing not only the development and implementation of federal legislative proposals and proposed regulations, but also state laws and regulations, and regulations proposed by independent agencies such as the Consumer Product Safety Commission and the Nuclear Regulatory Commission. Such a Council likely would examine such proposed laws and rules based on their costs and benefits, as well as their impact on trade, and would prioritize regulatory impacts on corporate profits over their value to the general public. This scrutiny also would extend to laws and rules proposed by both the EU and its member countries.

Such a council could block efforts by California and other states to promote electric cars, control pollution or ban unsafe consumer products, and weaken or stall progressive efforts in Europe to regulate chemicals based on the precautionary principle, requiring chemical makers to demonstrate their products are safe before they can be sold. TTIP also could jeopardize regional efforts to address climate change.

Safeguards in trouble

Last May, UCS, along with NGOs from both sides of the Atlantic, wrote to the U.S. Trade Representative Michael Froman and his EU counterpart, warning that it would become “a significant source of delay and preempt a state, a country or a region’s ability to maintain or establish stronger standards when consumers demand such or to respond to emerging technologies, new scientific information, preferred policies by the public, and urgent crises.”

Even worse, this and future trade agreements may very well include Investor State Dispute Settlement (ISDS), giving a corporation the right to sue a foreign government, claiming that its regulations unfairly hurt its bottom line. Such lawsuits would be decided by corporate and trade lawyers in an extra-national tribunal operating out of public view.

ISDS in other trade deals has had real-world impacts. Using ISDS, >Philip Morris sued both Uruguay and of Australia for trying to impose restrictions on cigarette labeling. Likewise, Germany’s decision to shut down its nuclear power plants resulted in an ISDS lawsuit from a Swedish nuclear power company.

Undermining science and democracy

In short, the ability of science to inform regulation on both continents may be undermined by corporate-driven structural changes and regulatory processes developed to give wealthy special interests even greater influence. Once these structures are in place, and these agreements signed, multinational corporations may have the perfect system for blocking, weakening or eliminating altogether any rule that harms their respective bottom lines.

Democracy means something only if citizens truly are able to govern themselves and for their priorities to be addressed. In 2014, Sen. Orrin Hatch, now the chair of the Senate Finance Committee, overseeing trade, was a co-sponsor of a fast-track bill sponsored by then Senate Finance Chairman Max Baucus and then House Ways and Means Chairman David Camp. Hatch has said he may introduce a new version of a fast-track bill by the end of this month. Unless the Hatch bill is drastically different from last year’s version, it will fail democracy in several ways.

Camp-Baucus-Hatch would:

  • Apply to any trade agreement negotiated over at least four years, possibly as long as seven years, extending beyond the current Administration;
  • Permit the President to negotiate a trade agreement that changes current federal laws and to determine which countries will be trading partners;
  • Rush complicated agreements through Congress, placing time limits—60 days in the House and 90 days in the Senate—when members of Congress can consider these deals;
  • Limit the power of Congress to slow deliberations down or to block votes. In the Senate, a majority of Senators can approve a trade deal. They do not need 60 votes to proceed. That means that the agreement could be ratified by one political party;
  • Exempt trade deals from scrutiny by congressional committees;
  • Restrict debate on these agreements to 20 hours in each chamber;
  • Ban all amendments, and<
  • Fail to bind USTR to any specific Congressional mandates ensuring that our regulatory system is not degraded.

Fast-track undermines the democratic process and makes us vulnerable to trade agreements that do real harm to science-informed regulation. That’s a bad deal, no matter how trade negotiators might frame it.