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TRADE TALKS

The Washington trade policy community is buzzing over the two largest international trade negotiations since the effective collapse of the Doha multilateral trade round. The buzz may be even louder in foreign capitals. The Obama Administration, in mid-July, was still promising to complete the Trans Pacific Partnership (“TPP”) negotiations by year-end, while starting up the Trans-Atlantic Trade and Investment Partnership (“TTIP”) negotiations with similar speedy objectives. For both deals there is engagement and enthusiasm. Inside U.S. Trade, the trade community’s weekly Bible, devoted over thirty pages, all but one article in a recent edition, to these negotiations.

Conspicuously, China is not part of these negotiations. To the contrary, TPP negotiations began as the inspiration of smaller Asian countries (beginning with Singapore, New Zealand, and Brunei) and Chile, all worried about China. They induced the United States in 2008 to join their negotiations, with the net around China then beginning to expand to Australia, Peru, Vietnam and eventually Japan, Canada, Mexico and probably South Korea. Seven more countries in the last twelve months (including Taiwan) have asked to join.

The Doha Round cratered over agriculture, especially Chinese and Indian complaints about American and European subsidies. It was to have been the “development round” of world trade talks. One critical feature of the congressional debate about the U.S. Farm Bill in 2013 was that it did not involve serious reductions in subsidies, and as long as the United States will not reduce its agricultural subsidies, neither will the European Union (EU”). Without reductions in both, there can be no global trade negotiations.

The TPP was to be, by contrast, a “high standard” regional agreement with an emphasis on twenty-first century concerns such as intellectual property and financial services. It was fashioned, therefore, almost expressly to China’s exclusion.

The TPP acquired the look and feel of containment, especially when discussion over Japan’s entry encouraged reinforcement of Japan as a U.S. ally in the region and a bulwark against China. Acceleration of the talks coincided with President Obama’s “pivot” to Asia and intensifying American complaints about Chinese cyber-spying, trade actions against critical Chinese green technologies, and adversarial reviews of Chinese direct investments into the United States. Rhetorically, the TPP door was open to eventual Chinese membership, but politically it was locking shut in a cordoning fence.

For a while, China articulated a concern that the TPP was exclusionary and part of a growing American hostility, but as the number of participants grew and the subject matter became more complex, China appeared to worry more about its own slowing economic growth and its more regional talks with South Korea and Japan. China might also have noticed that, as more interests were implicated by more complicated negotiations, the probability of conclusion receded.

As the TPP appeared to advance, absorbing enough countries to represent some 40 percent of world trade (the United States and Japan, Canada and Mexico, being the crucial participants), anxiety grew in Europe. The American “pivot” initially appeared strategic and military; the TPP made it appear economic as well. Canada and the EU already were negotiating a free trade agreement, but the EU had longed for a revitalization of trans-Atlantic relations with the United States, especially as persistent Eurozone troubles threatened economic recovery and the EU itself. Balancing the American pivot and harnessing the American economic recovery for European benefit became critical, while the Obama Administration seemed to see talks with Europe as potential proof that the pivot toward Asia was not “at the expense of” Europe, and could be another vehicle for “high standards” that would appeal to the business community. As the United States entered what it insisted would be the final year of TPP negotiations, it launched on the other side of the globe TTIP with the EU. For the United States, restoration as the world’s lone superpower was manifest in playing the indispensable partner looking both east and west.

Late entries of Canada, Mexico, and Japan could complicate TPP ratification, but generally the negotiating countries can deliver on an agreement their leaders may sign. That proposition, however, is much less true for the EU. France already has signaled discomfort (especially over the National Security Agency’s PRISM project) and it is unlikely that the outside negotiation alone can supply the glue required to hold the Eurozone together. Still, assuming agreements can be reached and all foreign partners can deliver, there is an elephant roaming in these negotiating rooms.

THE ELEPHANT

The Congress of the United States will have to approve any trade deal, whether through a majority in both Houses (an “agreement”) or through two-thirds of the United States Senate (a “treaty”). And both Houses will have to write and pass implementing legislation wherever the agreements (or treaties) require changes in U.S. law.

The American presidential system is unlike political systems in almost every other country. Prime Ministers preside over the majority party of legislative bodies. They derive their authority from leading the majority party. When they commit their countries internationally, they almost always can guarantee the approval of their legislatures. American Presidents, however, have no such authority. It is not unusual for them to lead political parties that are in the minority in Congress, in one or both Houses. After they negotiate and sign an international agreement with foreign leaders, they have to negotiate with domestic legislative leaders who can oblige them to change the deal, going back on their word with the Prime Ministers and Presidents of foreign countries.

Remarkably, one of the momentous events of the twentieth century seems forgotten now by world leaders. President Woodrow Wilson, following protracted and difficult negotiations, settled the “war to end all wars” with a League of Nations. The United States Senate, in part miffed by its exclusion from Wilson’s delegation in Paris negotiating the Treaty of Versailles, rejected it. When the peace began to disintegrate, the United States was not a member of the League of Nations meant to preserve it.

The President and Congress, mutually recognizing that the United States was unable to negotiate trade agreements in good faith because negotiating partners could not rely on the President’s signature, created “fast track authority” in 1974. The President promised to engage Congress throughout trade negotiations; Congress pledged a vote, up or down without amendment, on trade agreements and treaties. (President George W. Bush renamed “fast track” “trade promotion authority” (“TPA”).) Fast track, or TPA, promised nothing as to implementing legislation, but trading partners were assured that the text of the agreement itself would not be changed by Congress after the President had signed it.

The more Presidents wanted legacies associated with trade liberalization and international agreements, the more contentious approval of TPA became. Members of Congress quickly recognized that when Presidents want something badly enough, they are prepared to negotiate and to give up things in exchange. Instead of an expression of American foreign policy and government solidarity, TPA approval became an occasion for domestic negotiation and horse-trading, and the more the President might want it, the more Members of Congress reckoned they could get from him. Ultimately, Members of Congress saw they could withhold TPA altogether as a means for denying a President signature accomplishments in foreign affairs.

When Congress declined to renew fast track authority for President Clinton, part of the punitive environment enveloped in his second term impeachment, the trade community wondered what Charlene Barshefsky would do as the new Trade Representative. Cleverly, she focused on amendments to established multilateral agreements (most significantly, China’s accession to the World Trade Organization), and on narrow bilateral proposals (such as adding Chile to NAFTA, which failed). Large-scale new agreements effectively were beyond her grasp.

President Bush wanted TPA badly and pursued it vigorously in the first months of his Administration. He got it on a 215-212 vote on a House bill detailing negotiating requirements. In his second term, amidst growing criticism of a foreign policy that had the United States tied down in two expanding land wars (Afghanistan and Iraq), Congress declined to renew TPA and his international trade efforts withered without it.

President Obama did not assign international trade the priority President Bush had accorded it upon election. His first picks to be the United States Trade Representative declined, one notably telling him he did not think the President was likely to accord international trade sufficient importance in his Administration. One priority after another – health care; fiscal responsibility; budget deficits; Iraq; gay rights; Pakistan; Afghanistan; hunting down Osama Bin Laden; immigration – overwhelmed a trade agenda, and he has now gone longer without TPA than any President since the idea was first implemented in 1974. Yet, unlike past Presidents when they did not have such authority, President Obama has plunged into large-scale, multilateral trade negotiations. He seems to be betting that he does not need TPA after all, and that his trading partners will believe him to have more power to complete, sign, and implement than trading partners have believed about Presidents in the past.

Most trade “experts” have been conspicuously silent about the charging elephant. Others who have spoken (few) appear split. Stuart Eizenstat, a senior official in the Carter and Clinton Administrations and former Ambassador to the EU, told a hearing of the House Committee on Ways and Means in May that fast track was “absolutely essential” for TTIP: “Negotiations with the EU can be launched, but they cannot be concluded. The EU is not going to accept our final deal if they know it can be second-guessed by Congress.”

Theodore Posner, former senior staffer on the Senate Finance Committee, wrote in July that a debate in Congress over TPA “probably will saddle our negotiators with certain unwieldy negotiating objectives crafted in an attempt to broker compromises between competing constituencies.” He concludes that TPA legislation probably should not be introduced before negotiations for both the TPP and TTIP are concluded. Writing for a professional newsletter, Law 360, he does not mention that two-thirds of the Democratic caucus in the last House of Representatives wrote the President objecting to their exclusion from the negotiations (the warning echo of Senator Henry Cabot Lodge), or that thirty-six Democratic freshmen sent an alarming letter of similar content to Democratic House leadership in June. Posner emphasizes congressional caprice, not congressional prerogatives, and he assumes, contrary to Eizenstat, that U.S. trade partners will complete negotiations without assurances that the President can deliver on his signature.

House Ways and Means Ranking Member Sander Levin (D-MI) told a Peterson Institute for International Economics audience on July 23 that work on TPA legislation had not yet engaged members and at the staff level was still “rudimentary.” He declined any prediction as to whether there would be legislation in 2013 and avoided mention of the involvement of the Obama Administration. But, he emphasized that TPA legislation would have to strengthen the role of Congress in developing trade agreements, which he said was necessary to build bipartisan support for the outcomes.

Republicans have indicated support for TPA, but Tea Party Members of Congress quietly have indicated their reluctance to grant the President more powers. In the past, Presidents might have counted on Republican votes for negotiating free trade. Today, at best the Republican Party probably would split.

New USTR Michael Froman, at a July 18 Ways and Means Committee hearing, effectively reported that leadership on TPA would not be coming from the White House: the Administration was, he said, “ready to engage and to help in that process as requested.” Two weeks later, he told the U.S. Chamber of Commerce – the leading champion of TPA – that “we stand ready to provide technical assistance and are doing so as required.” On July 30, the President himself declared his interest in TPA, but said he would pursue his interest by providing support to Congress.

A substantial number of Members of Congress from the President’s own party are complaining that they must define the objectives of trade agreements, have access to all information throughout the negotiating process, and be fully informed. They are complaining, with specific reference to the TPP, that they have not had access to information, have not participated in framing negotiating objectives, and have not been kept well informed.

As congressmen complain that negotiations have been “secretive” and they have been excluded, Ambassador Froman told the Chamber of Commerce that, “It’s an incredibly complex negotiation,” an observation that could hardly comfort legislators being asked to surrender authority to the judgments and choices of the President.

The White House, meanwhile, has been trying to accelerate completion of TPP negotiations, without Congress. Inside U.S.Trade quoted a “business source” at the most recent negotiating round in Malaysia saying, “There’s a lot of pressure to close everything that can be closed,” and referred to other private sources saying that “this pressure is more palpable than it has been in any negotiating rounds this year.” It may be merely coincidental, but as Congress has complained of being excluded, the Administration seems eager to complete the deal faster.

There are additional considerations. USTR has complained publicly that it does not have enough negotiators to cover TPP and TTIP negotiations simultaneously (they are negotiating 29 different chapters in the TPP alone). Closing chapters will oblige late entrants to the negotiations (such as Canada, Mexico, and Japan) to accept terms negotiated by others or be excluded. There may be broader economic considerations, that completion of a sweeping and landmark trade agreement could jump-start economies that have been improving from the Great Recession, but slowly.

Despite all the possible explanations, it is apparent that the Obama Administration is not going to seek TPA aggressively before completing the TPP negotiations. It is also apparent that this Congress, and any Congress, would be reluctant to endorse a negotiated package without having participated intensively in its development and strategic intent.

And then it is essential to consider this Congress in particular, a Congress that could not agree for more than a month on a formula to control interest rates on student loans nor on any formula to preserve food stamps for the poor. Even if Congress were not crippled by partisanship and ideological division, and not directed by party leaders with little apparent control of their caucuses (a problem especially acute in the Republican Party), it would still be a Congress whose opposition party is determined to deprive the Democratic President of any major accomplishments. With a Republican Party study warning of the party’s demise without comprehensive immigration reform, House Republicans have blocked it. Republicans still, four years after passage, seek repeal of the Affordable Care Act, long after their efforts failed in the courts. The introduced legislation for this purpose for the fortieth time at the end of July. A plan of certain Senate Republican luminaries is to defund the Affordable Care Act during autumn budget talks, reminding the President that even legislation he thinks he has passed remains vulnerable to the opposition.

Successful completion of either trade negotiation would deliver to the President a signature accomplishment. With a Senate whose Minority Leader said his sole objective was the defeat of this President and a House of Representatives that routinely rejects legislation approved in the Senate, it is difficult to imagine why anyone would expect Congress to deliver President Obama a signature achievement in international trade. Perhaps, understanding the odds, the President is unprepared to invest much capital in Congress for such doubtful support.

Democratic Presidents often have more success with international trade deals than Republicans, if only because Democrats are presumed to be protectionist and Democratic support is particularly difficult to muster for free trade. When a Democratic President presents a free trade agreement (or legislation for trade liberalization), he can expect bipartisan support because his own caucus, typically reluctant about free trade, will not abandon him. For this reason, if no other, President Obama may expect approval of his negotiations after the fact. Such a calculation, however, with the present (and likely next) Congress would reflect exaggerated optimism.

CONCLUSION

The merits of the TPP and TTIP may be undeniable. They could improve trade and enhance the world economy. They could create jobs. There is logic in the enthusiasm negotiations for them have inspired.

There are also concerns about the merits. China may have stopped its private complaint about the TPP because, realistically, it may have nothing to fear from it, but China cannot have missed the message. It is a message that will not make China-U.S. relations easier, or stimulate mutual confidence and trust.

There are also legitimate concerns about specific contents, particularly because the many constituencies that must be satisfied have not yet seen and understood what the United States is negotiating. The Administration gives the impression that it does not want constituencies to be fully informed. Otherwise, there would not be a congressional chorus about deprivation of adequate information.

Even were all in order – the merits impeccable and constituencies pacified if not satisfied – it remains that Congress is to be presented deals after their completion. No Congress likely would stand for it, but this Congress, determined to deprive the President of any and all achievement, is likely to grant neither an up-or-down vote (were the President ever to ask), and even less likely to accept the agreements as negotiated.

When President Obama inherited from the Bush Administration three bilateral trade agreements requiring Congressional support, he spent years renegotiating terms before presenting them to Congress, even though they had been negotiated by a President when he possessed fast track authority. President Obama has no such authority, is not likely to receive it, and is not likely to confront a Congress eager to anoint him a successful champion of free trade.
Mexico’s Ambassador to the United States told a Washington audience in July that he had spoken with fifty Members of Congress since January about Mexico and North America in the context of world trade. He seemed to think this number significant. Senior European officials, when asked about the congressional veto over TTIP, have referred to discussions with USTR. There are no signs of a concerted effort to rally congressional support. Instead, they seem to assume what the Administration apparently assumes, that when the time is right Congress will endorse a sweeping new trade agreement. Regrettably, neither history nor institutional prerogatives lend any credibility to what seems to be little more than wishful thinking.

The TPP and TTIP have aroused extraordinary interest in international trade and policy and have provided employment for a widening trade community inside and outside government. Such engagement and enthusiasm, however, does not mean these agreements will go to completion and, if somehow they do, there remains even less probability that the elephant in the room will not step on them.
华盛顿的贸易政策圈正热烈讨论自多哈会谈失败以来规模最宏大的两大国际贸易谈判。在世界其他国家的首都，讨论可能更为热烈。奥巴马政府在七月中旬提出在年底前完成跨太平洋战略经济伙伴关系协定（TPP）谈判，同时也为跨大西洋贸易和投资协定（TTIP）谈判制定了相同的目标。贸易政策人士每周必读的“圣经”——《美国贸易内幕》近期以30页的篇幅报道了这两大谈判。

中国的缺席引人注目。其实这并不令人惊讶。TPP谈判的倡议者是势力单薄的亚洲国家——新加坡、新西兰和文莱以及南美洲的智利，这些亚洲国家无一例外都担心日趋强大的中国。它们于2008年说服美国加入它们的贸易谈判，并扩张至澳大利亚、秘鲁、越南，乃至日本、加拿大和墨西哥，逐渐编制了一张包围中国的网。最近一年里，七个国家和地区（包括台湾）要求加入谈判。

多哈会谈因农业问题而陷入困境，中印等国抱怨欧美等国为本国农业提供大量补贴。在它们看来应为“发展回合”国际贸易谈判。2013年美国国会讨论农业法案时，争论的焦点就是实质性削减补贴。连锁反应，欧洲也不会削减补贴。两大贸易团体不采取实质性举动，世界贸易谈判也将停滞不前。

TPP的设计宗旨是侧重于21世纪关注议题的“高标准”区域协定，例如知识产权保护和金融服务等。因此，它从诞生开始就将中国排除在外。

TPP看起来、并同时让人感觉是遏制中国，当美国在亚太地区的盟友加入谈判时更加深了这一印象。TPP谈判加速同时，奥巴马总统提出“重新侧向”亚洲、美国政府严厉指控中国网络谍战、针对中国绿色科技展开贸易措施、严格审查中国对美投资。因此，虽然言论上声称欢迎中国加入TPP谈判，但实际上是建立封锁中国的长城。

长时间以来中国认为TPP是美国敌意增长的最佳表现，但随着谈判国家数量增加、谈判内容日趋复杂，中国显得更担心自身经济增长速度放缓以及与日韩的三边贸易谈判进展。中国可能也认识到谈判日趋复杂、牵涉的利益越多，完成谈判的可能性也逐渐缩小。

当代表全球百分之四十贸易量的国家参与TPP谈判时（美国、日本、加拿大、墨西哥等），欧洲的不安与日俱增。美国的“重新侧向”亚洲政策一开始仅仅表现在战略和军事领域，TPP谈判使得这一政策带上经济色彩。加拿大和欧洲此前已经开始自由贸易协定谈判，但是面临经济衰退的欧盟更希望能振兴对美关系。奥巴马政府则希望借跨大西洋贸易谈判表明美国侧向亚洲并不以牺牲欧洲为代价、同时另一“高标准”协议也可吸引企业支持，

平衡美国对外政策、让欧洲也从美国经济复苏中受益显得非常重要。当美国进入完成TPP谈判的关键时刻，美国与欧盟展开自由贸易谈判。假设这些谈判能够实现，局促不安的大象正在谈判屋里走来走去。

大象

美国政府谈判签订的贸易协定需经国会批准，或是参众两院的多数票、或是参议院三分之二票。如果贸易协定将改变美国法律，则参众两院都需起草并通过执行法案。

美国总统制与世界其他国家的制度不同。在其他国家，占议会多数席位的党派占据部长要职，他们的权利来自议会选举胜利。当他们在国际舞台上代表国家作出承诺后，几乎都能保证获得立法机构的批准。但是美国总统没有这样的权利。有时美国总统所在的党派仅在参众议院占少数席位。当美国政府代表和国外政府签署协议后，他们需要与参众两院领导人协商；有时美国政府被迫再度与谈判国家展开谈判。

令人惊讶的是，各国领导人似乎都遗忘了二十世纪最重大事件之一。一次世界大战结束后，威尔逊总统通过艰苦而漫长的谈判成立了国际联盟。但是美国参议院以被排除在《凡尔赛条约》谈判之外为由否决了这一条约。当国联解体时，美国无法作为成员国之一维持这一国际组织。

总统和国会都充分认识到如果总统签字没有说服力，则美国无法有效推进国际贸易谈判，因此于1974年设立了“快轨程序”机制。“快轨程序”机制即为：总统保证在进行贸易谈判时与国会充分沟通，国会则或是批准、或是否决这一协定，决不添加任何修正案。（小布什总统将“快轨程序”改名为“贸易促进权”。）“快轨程序”或“贸易促进权”并为就两院起草并通过的协定执行法案提供任何保证，但是贸易伙伴可以确信当总统签署协定后，美国国会不会修改协定内容。

当总统希望通过国际协定、贸易自由化留下丰功伟绩时，国会就会就授予“贸易促进权”刁难政府。国会成员迅速认识到当总统迫切希望得到某一权利时，他将愿意与国会谈判并以放弃某些权利为交换。就这样，“贸易促进权”从美国对外政策和国家团结的表现转变为国内政治讨价还价的武器。总统越希望获得“贸易促进权”，就有更多国会成员估算自己可以帮助总统获得这一权利。最终，国会成员可通过拒绝授予总统“贸易促进权”的方式否决总统在外交领域获得成就。

国会在克林顿总统就任后拒绝重新批准快轨程序，贸易圈内纷纷猜测贸易代表巴尔舍夫斯基可以取得什么成就呢TPP她通过修正案促进了多个多边协定（最引人注目的自然是中国加入世界贸易组织）以及双边提议（如将智利添加至《北美自由贸易协定》，但是失败了）。但规模宏大的新协定就不在她掌控范围内了。

布什总统迫切希望得到“贸易促进权”，上任伊始就积极努力寻求国会授权。他以215票对212票获得众议院批准，同时众议院详细列出谈判要求。在他第二任内，他的阿富汗、伊拉克战争政策使他的外交政策饱受批评，国会也因此拒绝重新批准“贸易促进权”。

与布什总统相比，奥巴马总统对国际贸易的重视程度不高。奥巴马总统就任伊始，他的美国贸易代表首选婉言谢绝这一提名，因为这一候选人认为总统不会充分重视贸易事务。对奥巴马总统而言，比贸易政策更重要的是：第一是医疗改革，其次分别为财政支出、政府预算赤字、伊拉克、同性恋权利、巴基斯坦、阿富汗、通缉拉登、移民等。同时奥巴马也没有获得快轨程序授权。自这一程序从1974年实施以来，他是没有这一授权时间最常的总统。但是与其他没有这一授权的总统不同，奥巴马总统开展了大规模多边贸易谈判。他似乎下赌注认定自己并不需要快轨程序，他的贸易伙伴将会相信他比史上其他美国总统拥有更大的权利，可以完成并顺利实施这些贸易协定。

多数贸易“专家”面对屋中大象保持沉默。少数已经发表意见的则各持己见。卡特及克林顿总统任内的高级官员、前美国驻欧盟大使Stuart Eizenstat五月在众议院筹款委员会举办的听证会上发言指出，快轨程序对跨大西洋自由贸易谈判至关重要。他指出：“与欧盟谈判可以开始但却很难结束。如果欧盟知道国会可能会对协定有所疑议，他们不会接受我们的终稿。”

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翻译： 朱晶