Congress' Copyright Cowards: the Members Who Could Betray Internet Users
Fast track authority, also known as trade promotion authority, empowers the White House to unilaterally negotiate and sign trade agreements. It not only hinders Congress from exercising its constitutionally mandated power to oversee and amend trade deals, it could impact their sovereign power to make and reform copyright and Internet policy domestically.
Fast track places a time-limit on Congressional debates on trade treaties, prevents Congress from proposing amendments, and reduces Congress to an up-or-down, yes or no vote on the entire treaty. That means that radical changes to digital policies are controlled almost entirely by the executive. They are proposed by the US Trade Representative, negotiated by his office in secret, and then buried in large bills with other major economic provisions that Congress is unlikely to reject. Policies passed in such treaty bills can then only be repealed if the treaty itself is renegotiated. It strips Congress of almost all of its oversight power.
So who are the proponents of this unconstitutional procedure? Unsurprisingly, the most ardent supporter is the new US Trade Rep himself, Michael Froman. On multiple occasions, he has called fast track authority a “critical tool” for passing secretive trade agreements. Really that’s just a cute, misleading euphemism for a procedure that directly undermines checks and balances in government. What Froman is saying is that he could do his job more easily if only he didn’t have to deal with those pesky lawmakers who have the power to question his office’s trade priorities. Fortunately for us, that’s just not how democratic lawmaking works. It's just not possible that his office could represent the broad interests of the public [PDF] while giving a few entrenched corporate interests preferential access to negotiations.
More strangely, some of the biggest proponents for fast track authority are Congress members themselves: Notably, Senators Orrin Hatch of Utah and Max Baucus of Montana. They’ve called on the U.S. Trade Rep to “aggressively protect” intellectual property through its trade agenda, and ahead of Froman’s confirmation for US Trade Rep, Sen. Hatch made a dramatic speech that again reiterated the idea that fast track is a “tool” necessary for trade negotiators do their job. Hatch has had a long-standing relationship with the entertainment industry and also attempted to pass a bill to create a new “Chief Intellectual Property Negotiator” for the US Trade Rep’s office in an effort to entrench copyright and patent issues as a policy matter in secret trade negotiations.
Hatch and Baucus are only a few of many Congress members who support or who have supported fast track (you can see how lawmakers have voted on this in the past here and here). Thankfully, there are some lawmakers who are taking a stand against this unbalanced trade process. Senator Elizabeth Warren of Massachusetts took a stand against Froman’s confirmation as the U.S. Trade Rep due to lack of assurances from him during his nomination hearings that he would improve transparency in the negotiating process. The Senate went ahead and confirmed Froman, but immediately following the vote, 36 Democratic freshmen in the House wrote a letter to the top Democrat on the trade panel to declare their opposition to giving fast track authority to the Obama administration. Then just last week, a bipartisan coalition of Congressional members called for the US Trade Rep to uphold digital, economic interests in trade agreements and to publicly release “detailed information” about copyright provisions in the TPP.
If Congress, civil society, and the public at large were consulted from the beginning about the actual provisions in TPP, then fast track wouldn’t be necessary at all. Yet according to the Congressional Research Service, the US Trade Rep is negotiating TPP as if fast track authority is in place, already pretending that he has the unilateral authority to further Big Content’s one-sided agenda.
We need to demand that our lawmakers oppose fast track, ask them to call for a hearing, and exercise their authority to oversee the U.S. trade office’s secret copyright agenda.