Foreign Politics: The Colombia Free Trade Act (112th Congress)

Between the years 2003 and 2007, the United States signed ten free trade agreements with 15 different countries. However, while all those agreements were approved by Congress, South Korea, Colombia, and Panama were not included as they stood in limbo by the congressional leaders who refused to hold a vote. The tactics that were used to finally implement those three agreements in 2011 allowed Congress to vote on them as the Obama administration renegotiated the agreements in order to limit the extent of liberalization in specific product areas or impose new conditions that benefit U.S. labor unions and industries. Looking closer at Colombia’s Free Trade Agreement, this compressive agreement went through several rounds of negotiations for two years before finally being signed by the Obama administration. The issues surrounding the long process revolved around the agricultural sector of Colombia as they have been seeking more lenient agricultural provisions fearing that the effects of liberalization on rural regions could ultimately cause smaller farmers to suffer negative consequences prompting them to turn to coca production.

In theory, free trade is the ideal condition in which individuals and businesses from various countries can purchase and sell goods without the interference of governments. Free trade between countries can increase the variety and decrease the cost of products, as well as create jobs and strengthen international relations. While in this ideal scenario, free trade provides several benefits to the countries that join the World Trade Organization (WTO), it does not reduce the several barriers that are created when negotiating between countries. Considering the historical past of Colombia and the violence that has occurred in the past 50 years, many members of congress – both republicans and democrats – found issues with Colombia's impunity problem, the lack of investigations and prosecutions, and the paramilitary's involvement (Villarreal). While there were several issues in negotiations that imposed a delay in Congress’ ability to finalize the Free Trade Agreement for Colombia (Labor Unions, Violence, Effects on Rural Communities, etc.), these negotiations between the two countries and Congresses were able to write a finalized agreement with the terms that were agreeable to all parties in this controversial topic on free trade.

The Beginning Process of Free Trade Agreement

The process of the implementation of the United States and Colombia trade agreement started in the Senate in which the bill was introduced by Max Baucus – a Senator for Montana representing the Democratic party – then co-sponsored by two republicans where it was ultimately referred to the Committee on Finance. However, the S.1641 bill did not become law for several reasons. Five different actions took place, but the bill never passed the Senate as it was read twice and later referred back to the Committee on Finance. According to Lisa Dennis's Court Reporting for bill S.1641, Senator Stabenow shared his disapproval of the bill for Colombia because of the dangerous work environment that can be seen. His argument highlights the violence by providing data numbers in which he states that “last year, 51 labor leaders were assassinated […] which of course is very important, but it is an issue that affects American workers because they are undercut when wages of Colombian workers are kept artificially low due to the denial of basic worker right” (Dennis, 20). This statement from Senator Stabenow is important because it led to other senators to speak out on the many problems that passing this bill could create. The biggest problem that Colombia faced with the installation of the bill was the human rights problems that have been occurring there for quite some time. Senator Menendez was a strong supporter of the Colombian FTA but the lack of a Colombia Labor Action Plan in this bill swayed his feelings towards opposition: “During the mark-up, I sought to include language that would have required the President to report to the Congress annually on the implementation and enforcement of the Colombia Labor Action Plan by the Government of Colombia. […] I am disappointed that neither the labor plan nor reporting requirements for the plan are included in the implementing legislation to ensure that Colombia’s labor leaders are not forgotten” (Dennis, 25). The main concern for this specific bill was the omission of ways to prevent the violations of labor unions and human rights in Colombia, this bill was never passed in the Senate. However, on October 11, 2011, the House scheduled a meeting to consider H.R.3078 which was sponsored by Representative Eric Cantor.

H.R.3078 bill is the FTA that became public law after the failed attempt of Senator Baucus. First introduced in the House on October 3rd, 2011, and then referred to the Committee on Ways and Means, this standing committee ordered the bill favorably reported without amendment. The Rules Committee decided to proceed with a closed rule for this specific bill which provided “90 minutes of debate equally divided and controlled by the chair and ranking minority member of the Committee on Ways and Means” (Committee on Rules). The process to pass this bill into law was tedious in the House. On October 12th, 2011, the House failed a roll call vote by Yeas and Nays, so they took action in order to pass the bill by a recorded vote of 262 – 167. The bill passed the Senate without amendment by a Yea-Nay vote that resulted 66 – 33. After being passed in both chambers, the bill was presented to the President and later signed on October 21st where it became Public Law No. 112-42. So, what exactly is different between the bill that was presented in the Senate versus the bill the House presented? The bill that was ultimately passed consisted of 9 different sections: Agriculture, Manufacturing, Services, Government Procurement, Intellectual Property Rights, Textile and Apparel, Investment, Labor, and Environment.

The Differences in Trade Agreements

The agricultural portion of the bill was one that Colombia found troubling in the beginning stages. Their fear of the negative effects that it could have on smaller farmers in their rural areas was one of the main concerns. The bill produces a solution for environmental and agricultural concerns. The Agreement requires State parties to effectively enforce their own environmental laws and to enact, maintain, and implement laws and all other measures to fulfill their obligations under the applicable multilateral environmental agreements. The agreement also includes a fully enforceable and binding commitment that prohibits parties from lowering environmental standards in ways that affect future trade and investment. The Agreement promotes voluntary market-based mechanisms for protecting the environment and provides procedural protection measures that ensure fair, equitable, and transparent procedures for the control and enforcement of environmental law. The passed bill proposes a remedy to the tariff of 20 percent that provides “immediate duty-free treatment for 77.5 percent of Colombia’s agricultural tariff line, including U.S. exports” (GOP.gov). The agreement would immediately erase Colombia's distinct "price band" variable tariffs on US exports, which are not eliminated by the European Union's trade pact with Colombia. The International Trade Commission (ITC) estimates that there will be a significant gain in U.S. agricultural exports from this agreement as it guarantees against non-tariff barriers which are often seen as a problem when dealing with FTA. Similar to the agricultural sector of the bill, the agreement would also lower both tariff and non-tariff barriers to U.S. exports of manufactured goods. The services sector accounts for more than half of Colombia's GDP, making it important to improve market access to US services. This agreement gives US service companies greater market access, national treatment, and regulatory transparency than the WTO's General Services Agreement provides. The agreement removes significant restrictions on the capabilities of US companies competing in the engineering, construction, real estate, telecommunications, computer, and financial services markets. US citizens are allowed to retain important managerial and professional positions that Colombia currently bans. The biggest flaw that could be seen in the first bill that was presented in the senate is resolved through the labor section which ensures that workers and employers have fair access to labor tribunals or courts. This eliminates the main concern of violence towards labor unions in Colombia as well as provides protection to employers. The agreement requires each country to enforce the laws that concern acceptable conditions of work by respecting minimum wages, hours of work, and safety. This is vital to the passing of the bill because it was one of the main reasons that the first bill failed in the first place. The implementation of this labor security allows for better relations between countries as well as prevents the negative effects of violence that were noted by several senators. The Colombian Action Plan related to Labor Rights is noteworthy because while it was not part of the bill, it allowed for the movement and ultimate passing of the Colombian Free Trade Agreement. Presidents Obama and Santos agreed on the terms, but it gave Colombia the opportunity to expand their labor union eligibility for its protection program and assigned 95 investigators to labor violence cases which increased the funding for the special labor violence unit.

Political Theories Applied

Many political theories could be applied to explain the results of this passed law. A divided government can be described as one in which one party controls the legislative branch while the other controls the executive. During the time of the 112th Congress, the Executive Branch was run by Democrats while Congress was mostly Republican. In a divided government, many believe that gridlock and polarization are more likely to occur considering the two branches are divided. However, this was not the case for this bill. While the first bill had some flaws that many senators found to be uncompelling, the majoritarian Republican Congress was able to move past those problems and renegotiate it in terms that both they accept as well as the president. The bill that was ultimately passed was never changed throughout the markup in both chambers. Susanne Lohmann and Sharyn O’Halloran write a compelling article on divided government and U.S. trade policies. This article goes in-depth on the different conditions and outcomes that present themselves in a divided government when focusing on trade policies. Considering this bill was the result of both, I found this article to be very intriguing and illuminating. The authors use two theories to examine the role of institutions that form the U.S. trade policy: presidential and congressional dominance. These two theories link the policy preferences of both branches to political outcomes. Their first hypothesis, “Proponents of the presidential dominance hypothesis argue that Congress delegated much of its authority to set trade policy to the president. Even if legislators retain some constraints over executive action, they are unwilling or unable to use their power”, is tested and developed through a distribution model of US trade policy that captures both the role of domestic conflicts and institutional design (International Organization). Proponents of the congressional dominance hypothesis argue something a little different which states that the “delegation of authority to the President does not imply a relinquishing of power”. This congressional dominance is important to the understanding of why the bill did not pass in the first place because it stays consistent with various observations that Congress has constrained the President’s power by requiring the trade agreements to fulfill a variety of requirements that Congress has set forth. Because of the difference in ideology in this divided government, finding a compromise between both branches plus the Colombian government to agree on what exactly the free trade agreement must state in order for the bill to create a positive influx in trading and globalization and relations of both countries. Ultimately, the authors of this particular article find evidence that confirms that the institutional constraints placed on the President's trade policymaking authority were strengthened during a divided government and loosened during a unified government, and between the years 1949 to 1990 U.S. trade policy was significantly more protectionist during divided government than during unified government.

It is evident in the votes that the Republicans believed in this FTA with Colombia since the democrats were more opposed in the implementation of this bill. Ideology places an important part in the increased polarization and gridlock that can be found in the U.S. government. While the Obama administration was considered democratic, I personally believed it leaned more toward moderate. This bill was highly opposed by the democrats and sponsored by many republicans. Because of the differentiating ideologies between this divided government, it seems highly unlikely that the Obama administration would pass a bill sponsored and voted mostly by republicans. Looking closer at the House, the Committee of Rules played an important role in dictating whether this bill would be passed in the House or not. By using an unorthodox process of lawmaking, they were able to limit time for debate and create a space where a closed rule could be applied. Overall, this bill was able to be successfully passed through the theory of a divided government. The first rejected bill for implementing the FTA for Colombia lacked substance in the many concerns that members of Congress had. However, through the new proposed bill, they were able to find common ground by passing a bill that went through no amendments and was ultimately signed by the president.

Want To Learn More? Here Is How:

The legislative process is long and complicated but understanding how it works can provide more information on how countries do business with each other. The first step is knowing the basics of how the U.S. government works by reading the constitution, learning about the different branches, and figuring out what political sector interests you the most. If international relations is something that intrigues you, take international relations/affairs and international politics classes at your educational institute. You do not have to be a political science major or anything related to politics to start learning more about your government. If your school does not offer these types of classes, reading academic journals is another place to start learning about different political frameworks. Lastly, get involved. There are many internships available around the United States that allow you to work closely with the government. It is never too late to start.

Works Cited

Dennis, Lisa. Www.finance.senate.gov. www.finance.senate.gov/imo/media/doc/finan21.pdf.

H.R.3078 - 112th Congress (2011-2012): United States ... www.congress.gov/bill/112th-congress/house-bill/3078.

“H.R. 3078–United States-Colombia Trade Promotion Agreement Implementation Act.” House of Representatives Committee on Rules, 22 Feb. 2017, rules.house.gov/bill/112/hr-3078.

“H.R. 3078: United States-Colombia Trade Promotion Agreement Implementation Act.” Gop.gov, www.gop.gov/bill/h-r-3078-united-states-colombia-trade-promotion-agreement-implementation-act/.

Lohmann, Susanne, and Sharyn O’Halloran. “Divided Government and U.S. Trade Policy: Theory and Evidence.” International Organization, vol. 48, no. 4, 1994, pp. 595–632, http://www.jstor.org/stable/2706897. Accessed 29 Apr. 2022.

S. 1641 — 112th Congress: United States-Colombia Trade Promotion Agreement Implementation Act.” www.GovTrack.us. 2011. April 28, 2022 https://www.govtrack.us/congress/bills/112/s1641

Villarreal, Angeles M, and Edward Y Garcia. “The U.S.-Colombia Free Trade Agreement: Background and Issues (RL34470).” Congressional Research Service, 28 Mar. 2018, crsreports.congress.gov/product/pdf/RL/RL34470/37.