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Tuesday, November 27, 2007

Keith Ellison's Bill Will Fix the Peru Free Trade Agreement

Earlier this month, the House of Representatives approved the U.S.-Peru Trade Promotion Agreement (Peru FTA), and the Senate is expected to approve it in the near future. Thanks to the pressure put on Bush by the Democrats on the House Ways and Means Committee, this agreement contains real labor and environmental standards that led the AFL-CIO to state that "undoubtedly, the Peru TPA, as amended, marks a substantial step forward toward a trade model that will benefit the working people of both countries."

However, there are still serious problems with this agreement. The biggest is that enforcement is up to the executive branch. And as John Edwards' campaign site notes:

Despite progress on labor and environmental standards, worker rights are no stronger than George Bush's willingness to enforce them. He has proven his indifference to workers through seven years of inaction.


Keith Ellison also understands this problem. That's why he's introduced a bill which will force the executive branch to ensure that these provisions are upheld.

Representative Ellison has introduced a bill with former mill worker Mike Michaud of Maine "to allow United States citizens to bring civil actions against persons who fail to perform an act or duty under the United States-Peru Trade Promotion Agreement Implementation Act."

The full text of the bill is as follows:

SECTION 1. CIVIL SUITS UNDER U.S. PERU TRADE PROMOTION AGREEMENT IMPLEMENTATION ACT.

Section 102(c) of the United States-Peru Trade Promotion Agreement Implementation Act is amended to read as follows:

`(c) Third Party Right of Action Allowed- Any citizen of the United States may commence a civil action on his or her own behalf or in a representative capacity against any person (including the United States or any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to have knowingly failed to perform any act or duty under this Act. The United States District Court for the District of Columbia shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to issue appropriate orders requiring such person to perform such act or duty.'.


Guaranteeing every American standing to sue for failure of action is very important. Without it, the courts will likely find that potential litigants have no standing to bring the suit. This guarantees it, and makes court-ordered enforcement a real possibility if the executive branch fails to enforce provisions.

One might wonder why this was not introduced as an amendment to the Peru Free Trade Agreement.

The problem is that the House and Senate signed away their ability to amend or filibuster or in any way hold up the passage of the Peru (or Central America or Oman or Chile or Panama or South Korea or Colombia) Free Trade Agreements back in 2002 when the Senate voted to invoke cloture on the Baucus-Grassley amendment to the Andean Trade Pact, which gave the president fast-track negotiating authority for any trade agreement negotiated before July 1, 2007.

Fast-track negotiating authority does the following:

If the President transmits a trade agreement to Congress, then the majority leaders of the House and Senate or their designees must introduce the implementing bill submitted by the President on the first day on which their House is in session. (19 U.S.C. § 2191(c)(1).) Senators and Representatives may not amend the President’s bill, either in committee or in the Senate or House. (19 U.S.C. § 2191(d).) The committees to which the bill has been referred have 45 days after its introduction to report the bill, or be automatically discharged, and each House must vote within 15 days after the bill is reported or discharged. (19 U.S.C. § 2191(e)(1).) In the likely case that the bill is a revenue bill (as tariffs are revenues), the bill must originate in the House (see U.S. Const., art I, sec. 7), and after the Senate received the House-passed bill, the Finance Committee would have another 15 days to report the bill or be discharged, and then the Senate would have another 15 days to pass the bill. (19 U.S.C. § 2191(e)(2).) On the House and Senate floors, each Body can debate the bill for no more than 20 hours, and thus Senators cannot filibuster the bill and it will pass with a simple majority vote. (19 U.S.C. § 2191(f)-(g).) Thus the entire Congressional consideration could take no longer than 90 days.


Basically, it's a huge giveaway of authority and power to the executive branch. One wonders why Congress would ever willingly do so.


So thanks to fast-track, Representative Ellison is required to introduce this as a stand-alone bill.

Unfortunately, it has little chance of becoming law unless we can somehow get the Dem leadership to put it into a must-pass bill in conference (if they decide to capitulate and give Bush more money sans timetable, this would be one good provision to put into it).

However, the model of ensuring standing for citizens who may not be able to prove they've been directly affected by governmental [and non-governmental] negligence/lawbreaking is a very good one.

Consider the whole telecom immunity issue. One of the biggest reasons as to why the issue is so important is that the courts have said that most people lack standing to sue the NSA directly, as they can't prove they were the target of illegal surveillance, whereas customers of phone companies who illegally gave the NSA access do have standing (under breach of contract, I think; the important thing is that they have standing). If those companies were given immunity, we'd have no way to subpoena and find out the details and scope of the lawbreaking.

However, if a bill giving telecom immunity also incorporated a provision allowing any citizen standing to sue over breach of the FISA law, that would no longer be an issue. Of course, there'd still be the issue that telecom immunity = corporate welfare, but the worst parts of telecom immunity would no longer be relevant.

Presidential candidates running on reform would do well to put the assurance of citizen standing to sue in their platforms. Presidential candidates who want to look better on trade would do even better to introduce Representative Ellison's bill in the Senate.

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