Time to Derail Fast-Tracked Trade Treaties


Cambridge, MA:  Mt. Auburn Cemetery, Lodge Mausoleum  5/7/12
Cambridge, MA: Mt. Auburn Cemetery, Lodge Mausoleum 5/7/12

          Treat trade treaty texts like Rorschachs and you’ll discern Black Helicopters.  But instead of Blue Helmets, they’re filled with pin-striped Armanis.


           This morning, the Boston Globe editorial board urged Congress to fast track the Trans-Pacific and European Union trade treaties.  But the board doesn’t actually say that.  Instead it backs ‘the Bipartisan Congressional Trade Priorities Act of 2014 [to] clarify the process…’

           And what does the Globe say the process is?  ‘…The White House would retain authority to negotiate trade treaties, and Congress would promise a timely up-or-down vote.’

           Even Obama-phobes haven’t suggested taking away that authority.  It’s the timely vote bit that’s utterly misleading.  The Constitution suggests acting on treaties are among the most important tasks assigned Congress.  A simple majority of Congress can declare war.  Two-thirds of the Senate must vote to ratify a treaty.

           By this time, anyone possessed of a sense of smell knows ‘bipartisan’ signals a rendering plant in print.  The bill – it hasn’t passed, so it isn’t an Act – sets a single Congressional trade priority: ratifying (or not) whatever the President puts in front of them.

           Put differently, it commits the Senate not to amend what the President proposes.

           These treaties affect American life in profound ways that are, I reckon, countless.  Even on paper, they are complex.  They confer rights on corporations that, if assigned to the UN, would have militias rising across the inter-mountain West.

           And, the Senate is supposed to treat the treaties as if they were sub-Cabinet nominees?  Up or down?  Ok, I exaggerate – slightly.

           At the end of this post is a very toned down letter I launched at the Globe this noon.


          Instead of venting, I should be at a tour of Mt. Auburn Cemetery just now.

           No doubt, it would pass the Lodge family mausoleum where rest the remains of US Sen. Henry Cabot Lodge (R-MA).  This Sen. Lodge (his son was also a Senator) is remembered for defeating, in 1919, ratification of the Treaty of Versailles which would have committed the United States to the League of Nations.

           The Senate’s process on Versailles, if not necessarily its result, is what should happen with the trade treaties.


          In looking at the trade tribunals that adjudicate corporate rights under the post-NAFTA free-trade agreements, I saw something I’ll note but which requires much more research.

           It appears that the rights accorded corporations to challenge regulations rest on an implied contract assuring, say, an American corporation mining zinc in Peru to avoid complying with regulations on lead pollution that Peru imposed after the company began its operations.

          The language used to describe corporate rights sounds to my ears similar to that of US Supreme Court Chief Justice John Marshall in The Dartmouth College case – from which sprang many of our thorny problems with corporate immortality and governance.

           The treaty language seems to harken back to the contract clause jurisprudence of the early to mid-1800s.  If so, it is not a revival to be anticipated with anything but dread, if you believe the social legislation of the past 80 years is worthwhile.

           I am just paranoid enough about the Roberts Court’s ‘back to the future’ decisions, like Citizens United to be very disturbed by what I’ve read today.

           But, as I said, I have a lot more research to do.  In the meantime, watch your back!


           Here is my letter to the Globe:

 Re: ‘Pacific, EU trade deals need up-or-down votes’, Boston Globe, Jan. 19, 2014


           ‘Logrolling’ is a means by which legislators compress enough goodies into one bill that, despite the odors from various sections, it receives little debate and few amendments before the ‘up-or-down votes’ the Globe editorial board seeks for the ‘Pacific, EU trade deals’ (Jan. 19).

           ‘Fast tracking’ commits legislators to a similar process on trade treaties but without any input on their substance.

           Fast-tracked trade treaties adopted over the past 40 years have altered US life, from road safety to product labeling to environmental regulation to jobs – all with less debate than the current farm bill. 

           They confer substantive rights on corporations against governments which are enforced by tribunals from which the public and press are excluded.  From their anonymous judgments, there is no appeal.  We can have no idea the extent to which corporations have used those rights to affect government regulation.

           Fast-tracked trade treaties don’t invite, as the Globe suggests, ‘members of Congress [to] vote their conscience on the merits’.  Unlike a migratory bird protection treaty or an arms control pact, their merits aren’t clear.  The pressure from the interests to ratify has proven irresistible.

           Because treaties supersede domestic legislation – both current and future – the Constitution (Art. 2 §2 cl. 2) says ‘[The President] shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….’  It only takes three fifths to break a filibuster.

           This implies a process of solemn deliberation and thoughtful improvements fast tracking denies.  For the first time in 40 years, the Senate should commit itself to do its duty on the two trade treaties.

Yours faithfully,

Peter D. Kinder