Fast Track for the Trans Pacific Partnership Accords with Democracy

The left and even some Republicans have argued that the procedures for agreeing to the Trans Pacific Partnership are undemocratic. A leading argument is that voting for “fast track” for the TPP violates democratic principles because Congress is changing its rules now in order to later ratify an agreement it has not yet seen.

The arguments are wholly misplaced. “Fast track” simply permits Congress under its ordinary procedures to commit to a future majority vote of Congress to vote up or down on an agreement that the President has negotiated. Representative democracy is thus served by the later vote on an agreement whose text is known.

It is true that fast track eliminates certain procedural obstacles like the filibuster rule in the Senate and the requirements of committee approval. But there is nothing sacrosanct about a set of procedural rules to democracy. The Senate eliminates its filibuster rules for budgetary reconciliation and the House and Senate often pass legislation that has not been considered in committee. Moreover, parliamentary democracies are democratic and the process of ratification for the TPP actually gives more blocking power than is typical in those forms of government, because Congress imposes some requirements that the TPP must meet to get the advantage of fast track.

The comparison to parliamentary government is particularly relevant, because the TPP is an international agreement. Other nations are unlikely to negotiate seriously if they know that any agreement they make can be amended in Congress to the unilateral advantage of the United States. Given the geopolitical reasons for the TPP, making this procedural precommitment is in the national interest.

The complaints of the left are hypocritical on this matter given their enthusiasm for the administrative state. Remember that there Congress also delegates broad power to the executive—often under even more elastic standards than the TPP fast track– to implement regulations that Congress  has not yet seen. And unlike TPP fast track legislation, these delegations do not guarantee Congress an up or down vote to approve these regulations to make them the law of the land. If the left was truly unhappy about the lack of democracy in the TTP fast track, it would support the REINS act which requires Congress’s approval of major regulations that administrative agencies promulgate. The left’s opposition to such legislation shows that their real complaint is not about the loss of democracy, but about deregulation.  On the whole, TPP is about removing barriers to free exchange and the administrative state is about raising them.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. John Doe says

    The problem with this argument is the separation of powers. The president, being the executive branch, by definition, is not allowed to legislate (i.e. pass laws). The power to pass laws is placed by the Constitution in the Executive branch, which is composed of both houses, (the senate, and the house of representatives.) Therefore, how is it possible for the executive to agree to anything which would constitute a bill, without congressional (the legislative branch) approval? Where the problem here gets sticky is in that our Constitution states explicitly that the senate and house of representatives govern themselves, in the sense that they formulate their own rules of procedure. Therefore, WHAT is the constitutional argument here? Fast track, or not, it is still within congress’ own power to determine its own rules for passing a bill, as it sees fit.

  2. Devin Watkins says

    I don’t worry at all about trade promotion authority violating democratic principles. The house and the senate can come up with their own rules and as long as a majority in both houses vote for it in the end, that is all that matters. But what I worry a lot more about is the proliferation of these Investor-state dispute settlement tribunals. At what point do we give up our sovereignty to these international bodies and just have a world government that says what laws we are allowed to have or must have? We have people sitting on these tribunals that we didn’t elect, that were not appointed by anyone that we elected. Yes I know these have been in past trade deals like NAFTA and they haven’t bitten us hard yet, not yet is the key part though. Julian Assange (not exactly the most reliable of people, but he has a lot more insider information then I do about these secret agreements), says only 5 of the 29 sections even deal with trade. The others regulate the internet, labor, environment, regulations, healthcare, etc. All to be decided by people that no American voted for, nor did they vote for the people who appointed them. I consider myself a very right-wing conservative republican. I don’t think I ever voted for a democrat in my life. So its very strange to be in some agreement with Elizabeth Warren on this topic. It makes me wonder if maybe like in Medellín v. Texas the decision by these international tribunals are not really legal.

    • gabe says

      Devin:

      You are quite correct. McGinnis would have us believe that this issue is about parliamentary or procedural rules – it is not. Once again we see OUR elected representatives preparing to yield another chunk of our sovereignty to a) the Executive and b) some foreign bureaucrats who do have our best interests in mind.
      Ah, the wonders of legerdemain in governance!

    • djf says

      Another area that might come under the purview of this “trade” agreement is immigration. Maybe that’s a big reason that congressional Republicans – those brave champions of truth, justice and the perceived interests of the Fortune 500 – support it so strongly.

      American conservatives with enough going upstairs to tie their own shoes (which, admittedly, might be a minority of them) no longer take at face value the standard economic arguments for “free trade” and deals like this TPP thing. It has become obvious that the people making such arguments are (1) self interested and (2) have no concept – none – of a specifically American national interest, including what sort of society we want to be. The purpose of the United States government should not be to increase a statistical artifact deemed to represent global utility. Sadly, the economic profession seems to think that’s exactly the purpose of our government.

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