The Bush-Schwab Policy on the Colombia FTA Has Failed Miserably

31 December 2008

The recent adjournment of the 110th Congress provides the final verdict on the Bush Administration’s strategy for securing the enactment of the Colombia-US Free Trade Agreement. The verdict is that the non-cooperative strategy of President Bush and US Trade Representative Susan Schwab failed miserably.

By way of background, recall that on 7 April 2008, the Bush Administration sent implementing legislation for the FTA to Congress without having first obtained a go-ahead from House and Senate leaders. Although the President has a right to do this under the law (19 USCS §3805(a)(1)), the informal understanding going back to 1979 was that the President would send the legislation to the Congress only after the House and Senate committees had marked up the bill in so-called ‘non-markup’ sessions.

As with many established legislative-executive traditions during the Bush Administration, this one was not followed. Instead, the bill written solely by the Administration was sent to Congress on a take-it-or-leave it basis. Ambassador Schwab explained the Administration’s reasoning in a press release that day which said: “Because only so many legislative work days remain between now and Congress’ targeted adjournment date in September, the Administration was compelled to send the legislation at this time to Congress to ensure a vote this year.”  Perhaps if the Administration had had better intelligence about when the Congress was likely to adjourn for the year, the unilateral action on 7 April might have been avoided.
The Congressional reaction to the Administration’s maneuver was harsh and a response came quickly. On 10 April, the House voted to strip the Colombia free trade bill of fast track status. In response, Ambassador Schwab issued a press release on that day, she criticised the House for changing the rules “in the middle of the game.”

For the rest of 2008, advocates of the free trade agreement with Colombia discussed the possibility that the House might change course and take up the bill. That, sadly, never happened. A key reason may have been that Presidential candidate Barack Obama opposes the trade agreement.

It is hard to see the Colombia episode as anything other than a major miscalculation by the Bush Administration. Apparently, the Administration thought that the agreement could be rammed down the throats of the Congress. Ambassador Schwab, with her many years of experience as a Senate staffer, should have known better and if she did she was unable to dissuade the Administration against this reckless strategy.

The costs of the Bush strategy are high. First, the good-for-one-ride fast track procedure for Colombia has now been used up, as Ambassador Schwab herself acknowledged in a speech to the Club for Growth on 17 November. Second, by forcing the hand of the Speaker, the Administration has taken the fig leaf off of the 30-year old fast track process. By fig leaf, I mean that it was always understood that the procedural requirement for a guaranteed up or down vote in the House and Senate was something that each of those bodies could undo, but until this year, both chambers acted as though each had a legal obligation to honor the fast track rules. Unfortunately, this fig leaf is now gone and any future fast track will have less credibility domestically and internationally. This will make it harder for future Administrations to negotiate new trade agreements and thus open overseas markets and level the playing field for our workers and families. Third, by sending the Colombia FTA bill to Capitol Hill without support, the Administration has embarrassed our close ally Colombia and put vital US interests in Latin America at risk.

In criticising the self-defeating actions of the Bush Administration on trade with Colombia, I do not excuse the vapid actions of the Congress. It was wrong for Speaker Pelosi to take fast track away from the implementing bill. It was also wrong for the Democratic House and Senate leadership to refuse to work with the Administration to firm up the language of the implementing bill. And while I am assigning blame, it was also wrong back in the spring for the pro-trade business groups and institutes around Washington to goad the Administration into “calling the Congress’s bluff” on the Colombia FTA.

Looking ahead, I think the Colombia FTA is in for a bumpy road but I doubt it is dead. As I pointed out in remarks several months ago at the Inter-American Dialogue, it would be possible for the next Administration to use the fast track for the Panama FTA to also enact the Colombia FTA. It would also be possible to approve the FTA without fast track (as was done with Jordan) but that requires a well-disciplined Congress. Of course, in the immediate future, the Obama Administration will need to start by deciding whether it is for greater international trade or against it. In governing, it is hard to be both at the same time.

Steve Charnovitz is an associate professor of law at The George Washington University Law School.

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