Friday, May 22, 2015

The U.S. Senate Approves Fast-Track for Pacific Trade Deal: Overstating the General Will

The way the world works is not in itself reason enough to dismiss the possibility of an ideal being more fully realized, and to refuse to take practical steps to its realization. Horse-trading is a staple in politics. The expression “making sausage” is typically used to refer to political horse-trading because people generally do not know—nor do they want to know—how sausage gets made; and it is probably best that way, at least according to the politicians. I propose that we “get under the hood” anyway, because only then can we ask ourselves whether political horse-trading is overused; a better way may be possible and even practical under some conditions.

Political horse-trading occurs when one elected representative (Mr. X) agrees to go along with another representative’s (Mr. Y) piece of legislation, which isn’t very important to X’s constituents but is to Y’s, in exchange for Y’s vote on another bill, which isn’t important to Y’s constituents but is to X’s folks back home. With enough support and horse-trading both bills stand a good chance of becoming law, whereas without the practice perhaps neither bill would pass. Although the legislative output of the legislative chamber is increased, that the support for each bill is overstated—the votes in favor being more than the number of representatives who support the legislation itself. A minority of representatives in the chamber may be for drilling for oil in natural parks, for example, but a bill whose express purpose is to permit such activity by oil companies could pass anyway due to horse-trading. The general will as per the representatives as a whole would not be in line with the legislation passed, meaning theoretically at least that the will of the people would not be in favor of drilling; so is more legislative output necessarily a good thing in a representative democracy? Rousseau would point to the general will as having been thwarted by ambitious politicians looking out narrowly for the particular will of their respective constituencies or even just themselves. Out of an original social contract comes “a moral and collective body made up of as many members as the assembly has voices, and which receives by this same act its unity, its common self, its life and its will.”[1] This will is the general will. If particular interests make out well at the expense of the good of the whole, then the general will is thwarted or compromised. Hence, horse-trading may not be justified by its facilitative impact in terms of legislative output.

In May 2015, the U.S. Senate rebuffed the U.S. President’s request to have the proposed Pacific trade treaty (PTT) voted “up or down” without amendments (i.e., “fast-track” authority). The U.S. House of Representatives had already approved the fast-track authority. In spite of Democratic senators claiming that workers would not be adequately protected as the trade deal had been negotiated, enough of those senators turned around and voted a week or so later to end the debate. Sixty-two senators voted for cloture, enabling the fast-track authority to go through. The U.S. president and the Senate’s majority leader had enough power to do the necessary horse-trading.

The vote nearly failed—being a few votes shy of the 60 needed to end debate. “It only succeeded after about a dozen senators engaged in a tense discussion in the middle of the Senate floor, well after the time for the vote had expired.”[2] The bending of the Senate’s rules on the duration of the vote is itself suspect; it could be the smoke over cloaked horse-trading. According to several U.S. senators, "the key was Senate Majority Leader Mitch McConnell (R-Ky.) promising Sen. Maria Cantwell (D-Wash.) to have a vote on reauthorizing the Export-Import Bank, which backs loans in places where there might not otherwise be sufficient funding to purchase products from the United States. A key beneficiary is Boeing, in Cantwell's state."[3] Does this constitute horse-trading, or would the reauthorization of the Export-Import Bank make the Pacific trade deal better for U.S. workers?

As an instance of corporate welfare, the Bank would primarily benefit American businesses that export to the impoverished countries getting the loans. The companies’ shareholders and to some degree the workers would also benefit from the additional business. Even so, reauthorizing the Bank would not mean that workers in countries that are party to the TPP would be protected or that the free-trade deal would not result in American workers being laid off. The A.F.L.-C.I.O. contended at the time that 700,000 jobs in the U.S. had been lost or displaced due to NAFTA.[4] Presumably the figure would not have been higher without the corporate welfare that the Export-Import Bank was dolling out. We can conclude, therefore, that Cantwell’s horse-trade with McConnell did nothing to remove Cantwell’s concerns about worker-protections under the TPP—assuming she really had concerns!

Moreover, we can conclude that the support for fast-tracking the TPP deal was less than 62 senators who voted in favor of ending debate, since the horse-trading made the difference in the cloture vote. In effect, McConnell broadened the scope of the vote by making a promise regarding another issue. In doing so, he blurred the general will and thus compromised the democratic principle wherein the people’s representatives vote on the merits of the same thing—rather than some of the representatives essentially voting on one thing and other representatives voting on something else. The legislative output is greater, but so is the risk that bad legislation will go into effect.

What if legislative votes were like straw polls wherein each representative would be asked what he or she thinks of a proposal, such as drilling in national parks. The matter requires judgment as well as information. Looking into an issue and making a judgment on it is what elected lawmakers are presumably supposed to do. Political horse-trading impedes or compromises the judgment and perhaps even the information-gathering. To be sure, judgment is involved in deciding which bills to trade; however, this sort of judgment is not the same as judgment on a particular issue, with a vote ensuring from it. Theoretically at least, being satisfied as a country with legislative output reflecting legislative judgments on the respective bills, rather than informally grouping them so they all get through, has the benefit of better public policy unless the lawmakers’ judgment capacity is bad (i.e., voters making bad choices in who they vote for). Put another way, if enough senators (technically, states) judged that the PTT negotiated by the Obama administration would be a bad treaty, then the fast-track status should not have been approved; the check-and-balance in the Senate’s power to ratify treaties would be of value.

Practically speaking, Obama and McConnell could not be expected to hold back on using their power to reach 60 votes. To assume otherwise would be tantamount to expecting a stream to run uphill. Horse-trading could be made illegal, but enforcement would be a bitch given the nature of the beast. Making use of referendums at the policy level, such as whether the U.S. Government funds should cover abortion, or whether pot should be legalized, would preempt legislative horse-trading, though voters could of course use their vote in a referendum for another purpose rather than to signify their judgment on the issue at hand. Even so, considering the prevalence of horse-trading in legislative chambers, the general will stands a better shot at being reflected if referenda are included on ballots. Voting only for a candidate—theoretically in part because of the candidate’s good judgment—implies that he or she would use it on issues rather than merely to horse-trade well. The prevalence of legislative horse-trading means that the electorate should not rely so much on voting to fill offices; some direct democracy should also be in the mix. Perhaps then legislative rules (with teeth) clamping down on horse-trading would be enough to pick up the slack. Even more idealistically, perhaps voters might vote for candidates who find contributing to the general will rather than obfuscating it to be fulfilling and of value. Of course, if the electorate deems (i.e., the general will) that good legislation is the aggregation of bills satisfying various parts (i.e., constituencies) of the whole, then the voters will favor candidates who value horse-trading. To the extent that such candidates get elected (and reelected) even though the majority of the voters believe that their representative should use his or her judgment on each issue rather than horse-trade, then at least part of the problem lies with representative democracy itself.

1. Jean-Jacque Rousseau, The Social Contract, in The Social Contract and Other Political Writings, Victor Gourevitch, ed. and trans. (Cambridge: Cambridge University Press, 2004), p. 50.
2. Michael McAuliff, “Senate Advances Fast-Track for Obama Trade Deals,” The Huffington Post, May 21, 2015.
3. Ibid.
4. Kevin Granville, “The Trans-Pacific Partnership Trade Deal: What It Would Mean,” The New York Times, May 11, 2015.