Not entirely unsurprisingly, the Senate failed to reach cloture last Tuesday, falling eight votes shy of the 60 needed to start the timer on debate over Trade Promotion Authority (TPA), which will be needed to conclude the Trans-Pacific Partnership (TPP) negotiations and bring it to a timely vote in Congress. The cloture vote concerned two of four pieces of trade legislation voted out of the Finance Committee two weeks ago (TPA and Trade Adjustment Assistance). Senate Majority Leader Mitch McConnell excluded the other two bills, which contain language that would attract Democratic support. So, while I wouldn’t bet the ranch on TPA’s passage, there’s still room for horse trading.
In more surprising (and disappointing) news, one senator who will say “no” if TPA makes it to the floor for a vote is Rand Paul, who explained his reasoning on a New Hampshire television news broadcast:
We give up so much power from Congress to the presidency, and with them being so secretive on the treaty, it just concerns me what’s in the treaty.
Let me take Paul’s issues with power, secrecy, and content in order.
Certainly, this president has accelerated the trend toward executive aggrandizement and that warrants concern and correction. But it’s a stretch to conclude that TPA (despite containing the word “Authority”) gives the president power at the expense of Congress. TPA is a compact between the legislative and executive branches, each of which has distinct constitutional authorities in the formulation of trade policy. The way TPA works is as follows: Congress delegates the president as the point person responsible for conducting negotiations and requires him or her to fulfill a long list of congressional trade policy objectives in the course of those negotiations. If the president brings back an agreement that satisfies Congress’s requirements, the agreement is given fast track consideration, which means a guaranteed up-or-down vote with no amendments within a set number of days after the signed agreement is announced. If the trade agreement is found to have not met the congressional objectives spelled out in the TPA legislation, it can be taken off of the fast track by way of a majority vote in the Senate Finance or House Ways and Means Committees. Sen. Paul doesn’t seem to be invoking objections on any specific constitutional grounds, though he laments what he characterizes as a transfer of power from Congress to the president.
The claim that the administration has been secretive about the negotiations and related processes has some merit, but access to the details of ongoing trade negotiations has always been limited. Allegations of excessive secrecy have been thematic in the Far Left’s hyperbolic narrative that the TPP is about President Obama selling out labor, the environment, product safety, access to medicines, and regulating in the public interest for the benefit of those evil multinational corporations. But as the president has belatedly and clumsily attempted to assuage the Left’s fears with assurances that the TPP is the most progressive trade agreement in history, complete with the most robust environmental and labor protections, including guaranteed minimum wages in partner countries, he has raised concerns among conservatives and libertarians about what exactly the president plans to spring on us. That, I believe, justifies Paul’s reticence.
But the bottom line is this: Congress and the public will have the opportunity to scrutinize the TPP for 60 days before the agreement is signed, up to another 135 days during the “Reporting and Mock Markup” period, and up to another 90 days during the “Congressional Consideration and Implementation” period. If Sen. Paul and his colleagues don’t like the contents of the agreement, they can vote “no.”
So, if I were a senator and an advocate of economic freedom who happened to be understandably suspicious about the president’s agenda, I would vote “yes” for TPA, which opens the door to the possibility of even seeing a completed TPP. Then, if after evaluating the TPP’s contents my worst fears were confirmed (or, more succinctly, if it were not net liberalizing), I’d vote “no” on its implementing legislation. The error in voting “no” on TPA, though, is that if TPA fails to pass, we won’t see the TPP and we forgo the opportunity to pass a potentially good, net liberalizing trade agreement, which doesn’t come around all too often.
That’s why Rand Paul has it backwards.
This article originally appeared on Cato at Liberty.