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No. 2, even if it were constitutional, if we mandate in one area, we necessarily give up significantly in other areas. One other area would be the agricultural provisions. We are trying to get Canada, for example, to dismantle

[Page: S3805]  GPO's PDF

   First, the Canadians will say, if you want us to do that, we will ask you to give up someplace else or we will not be as amenable to your suggestion that we give up on the Canadian Wheat Board. It does not make good sense in trying to get good, solid trade agreements.

   We have avoided using mandates in the bill. Rather, in the tradition of these kinds of measures, we laid out negotiated objectives and agreed to consider implementing legislation under special rules; that is, if the President makes progress in achieving these objectives.

   I think it should give all Senators some concern that this mandate also requires the President to, in 1 year, certify that the USTR has fulfilled the requirements set forth in this section. I don't know how in the world the President of the United States in 1 year will be able to certify that the mandate called for in this amendment is fully implemented; that is, full transparency. It is just not going to happen. It is unconstitutional anyway because the legislative branch, under the Constitution, cannot mandate to the executive branch what

   to do in negotiating agreements with other countries. That is an unconstitutional provision.

   I very much hope my friend from North Dakota will work to modify the amendment. I strongly agree with the intent and the import of what he is trying to do. This puts me in a very difficult position because I do agree with what he is trying to do. But the goal here is to be effective. The goal here is to get the job done.

   Frankly, I would like to ask the Senator from North Dakota if he would yield for a question; that is, if there is some way we can modify this amendment to make it effective, because the current draft is unconstitutional and also because of the flaws of the mandating approach and the impracticality of getting this accomplished within 1 year. I ask my good friend from North Dakota if he is willing to modify given those flaws?

   Mr. DORGAN. In response to the Senator from Montana, I certainly respect his view, but I don't share his view that this amendment would in any way be unconstitutional. I believe the amendment, if I modify it, would be less likely to achieve its purpose. If I don't modify it, I think it is a stronger initiative that says to the administration, this is what the Congress aspires to achieve with respect to changing the secrecy by which dispute tribunals in NAFTA are now conducted. I would prefer we not modify it in order that it be a stronger initiative.

   I do not see this as in any way being unconstitutional. It is in perfect concert with our constitutional responsibilities.

   Mr. BAUCUS. I thank my good friend, but it is just a matter of judgment. It clearly is unconstitutional because Congress cannot mandate to the President telling the President what he must do in negotiating agreements with other countries. That is clearly an unconstitutional mandate of authority. I must say, I doubt this provision will survive in conference for those reasons.

   I fully understand the Senator. The goal here is to be as effective as we possibly can because the Senator and I agree with the same objective. The objective is full transparency in these proceedings. That is clearly going to be in the public interest. It is going to help Americans and help people all around the world.

   I thank my good friend and yield the floor.

   The PRESIDING OFFICER (Mrs. CLINTON). The Senator from North Dakota.

   Mr. DORGAN. Madam President, my colleague, Senator Craig from Idaho, spoke in support of the amendment. It is an amendment we offered jointly. I ask unanimous consent that others in the Senate who have asked this morning be added as cosponsors: Senators BYRD, DAYTON, and DURBIN.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. DORGAN. Let me describe again what it is we are attempting to achieve. We have now, under NAFTA , dispute tribunals or tribunals that are created for the purposes of resolving disputes. Regrettably, those tribunals are conducted in secret. They are secret tribunals. The American people are excluded from knowing what they have done, what they are doing, what they are going to do, how they reached a decision. We are not entitled to review any of the information they have or the information they might have used to reach a decision. They lock the door, and behind locked closed doors, they discuss this country's future with respect to international trade disputes.

   We ought not be a party to that. That is not what we signed up for. That is not what the U.S. Government is about--secrecy, closed, locked doors in some foreign land. That is not what we ought to be about. This amendment says: Let's stop that. Let's not have the dispute tribunals be secret.

   Let me give an example of why this is important: what is happening with respect to NAFTA and a fuel additive called MTBE. This is all under something called chapter 11 . You might think chapter 11 has to do with bankruptcy. It does not. Chapter 11 was put in NAFTA at the request of negotiators thinking that U.S. investors in Mexico might have their assets seized by the Mexican Government or Mexican regulators and the Mexican legal system probably wouldn't provide sufficient protection. So U.S. negotiators actually asked to have chapter 11 included in NAFTA . It was. It was designed to create tribunals that would consider claims from foreign investors that they had property taken by Government regulation.

   By design, these tribunals were given leeway to operate in secrecy. They were bound only by international arbitration rules. That allowed the tribunals to act however they saw fit. If any of the parties to the claim wanted to keep the proceedings secret, the briefs would not be disclosed and the hearings would be closed. And that is exactly what has happened.

   Let me describe what has happened here with respect to chapter 11 and the tribunals and what this Government, what the United States of America, is part of. It involves Methanex, a Canadian company that makes MTBE, a fuel additive. We have been talking about MTBE recently in the debate over the energy bill so most Members are familiar with this fuel additive.

   In 1999, California decided to ban MTBE because they began to find it in their ground water and drinking water. All of a sudden they began to measure this fuel additive, which is harmful to human health in their water system. They decided they better ban MTBE. And so California did that. Fourteen other States are considering limitations to the use of MTBE. It was 1990, in fact, when California first discovered traces of MTBE in the drinking water.

   In 1995, 71 percent of Santa Monica's drinking water was shut down. Their supply was shut down due to the presence of MTBE. In 1996, MTBE was discovered in Lake Tahoe. In 1998, an EPA blue-ribbon panel called for substantial reduction in the usage of MTBE.

   Then California decided, in 1999, they were going to ban MTBE altogether. A Canadian corporation that makes it called Methanex heard about the California decision, and they realized they stood to lose a lot of money. If California bans MTBE, this corporation stands to lose money. So Methanex filed a chapter 11 claim against the United States for $970 million.

   Think of this. Methanex, a Canadian corporation, files a $970 million claim against the United States of America because California decided to ban MTBE because it was discovering it was showing up in drinking water and ground water and that it is harmful to human health. So a foreign corporation sues our country because we are taking action to protect human health in this country.

   This claim has had an incredibly chilling effect on environmental regulatory activity. If a State wants to keep poisons out of its rivers and streams, it now has to worry about a chapter 11 complaint being filed. The producers of that poison will file a chapter 11 claim and claim a billion dollars in injury against the United States. But, then, that claim, when considered under a tribunal in chapter 11 , will be resolved in secret.

   Let me restate this so people will understand it. A State finds a poison in its drinking water and in its ground

[Page: S3806]  GPO's PDF

   Well, I am using one example--MTBE. This amendment says it shall not be secret any longer, that the dispute resolution under chapter 11 --the tribunals, their behavior, actions and their considerations--shall not be secret. You cannot keep that information from the American people. We will not allow it. Our amendment says the President shall negotiate a change with Canada and Mexico to the conditions under which these tribunals meet and shall report back to Congress within 1 year; that these tribunals shall be held in the open; that the secrecy has ended, and that transparency will exist. That is our amendment.

   My colleague from Montana said the amendment is unconstitutional. If I might, without providing a lecture on the Constitution, I will put up a chart. Article I, section 8 of the Constitution says the Congress shall have the power to regulate commerce with foreign nations. It doesn't say Ambassador Zoellick shall have the power, or President Clinton or President Bush shall have the power; it says the Congress shall have the power.

   We have a lot of people here who have forgotten that or have decided to ignore it. But that is what the Constitution of the United States says--Congress shall have the power. Fifty-five people wrote that over 200 years ago. This Congress, well over two centuries later, has apparently decided that it wishes to consider giving the President the authority on trade with something called fast track. So it is apparently not unconstitutional in the minds of some to give the President this authority, despite the fact that the Constitution says it is the Congress's authority. They would say it is not unconstitutional to give the President the authority to do this, but it is unconstitutional to direct the President to end secrecy in the tribunals. I don't understand that. That doesn't make any sense to me. Of course, we have a right to direct our trade negotiators to direct this administration to negotiate an end to the secrecy in these

   tribunals. Of course, we have a right to do that. Are we kidding? The Constitution says we have the right.

   This isn't some idle piece of paper. It is the Constitution of the United States. I don't want to hear that we don't have the authority to do this. Of course we do.

   The question for the Senate is this: In the future, both in this case and the next one, when one of our States, or our Government, takes action to protect our citizens against someone poisoning our water or polluting our air, and somebody files a large claim against the United States for protecting its citizens, saying, by the way, you have violated our trade laws and injured us; do you want the consideration of that dispute to be resolved in deep secrecy, behind closed doors, perhaps in a foreign land, with three people who will not tell you what they are doing, what they have done, or why they have done it? Is that what you want for this country? I don't think so.

   If you believe in open government, and in democracy, and in fair trade, and in the Constitution, then you have to believe in this amendment. This is not rocket science. This is common sense. Often, common sense finds a difficult road here in the Congress because it attracts comments by people who say, well, I know it sounds good, but it is not as easy as it sounds. This is as easy as it sounds, believe me. It is as easy as it sounds. All this country has to do, with respect to Canada and Mexico, is to say with respect to our trade agreement that we will not be involved in secret tribunals. That is not the American way and not something Congress will any longer support.

   Why do we have to do this in this legislation? Because we have had our Trade Representative, Mr. Zoellick, already tell us that he would like to end the secrecy.

   Trade ministers from the U.S., Canada, and Mexico last year tried to impose greater openness on a procedure under NAFTA that allows companies to sue governments for millions in monetary damages, but the effort has so far failed.

   That is according to the Washington Times last month.

   Charges of secrecy have dogged the chapter 11 process since its inception. Many NAFTA supporters now concede that the closed tribunals have contributed to public distrust of the agreement, and advocate greater openness for the procedure.

   Our Trade Representative, Mr. Zoellick, has spoken on this issue. He wants more openness. But the fact is, these tribunals ignore it. The openness doesn't now exist. There is still a veil of secrecy. That dis-serves the interests of this country. That is why this amendment is necessary, and that is why the amendment is necessary now. No, it is not unconstitutional--not at all.

   This Congress has every right to speak on this subject. In fact, this Congress has a responsibility to speak on this subject. We know it is wrong to have a foreign corporation suing our Government because our Government is taking action to protect our consumers against poison in the water. And then to throw that into a tribunal and tell the American people, by the way, it is none of their business; they can't see it, hear it, or be a part of it, we know that is wrong. Everybody in this Chamber knows that is wrong.

   So we are going to vote on this amendment. As I said when I started, it is a bipartisan amendment. I have been joined by Senator Craig from Idaho, from the other party. I appreciate his cosponsorship and his work with me on it. I think he believes, as I do--in fact, he expressed that a few minutes ago on this floor--that we must take action to end this secrecy. This is the place to do it and this is the time to do it. We are now considering international trade. We are considering fast-track trade authority. This is the place and time to add this amendment.

   With that, I yield the floor.

   The PRESIDING OFFICER. The Senator from Nevada is recognized.

   Mr. REID. Madam President, I move to table the Dorgan amendment and ask for the yeas and nays.

   The PRESIDING OFFICER. Is there a sufficient second?

   There is a sufficient second.

   The yeas and nays are ordered and the clerk will call the roll.

   The legislative clerk called the roll.

   Mr. REID. I announce that the Senator from New Jersey (Mr. TORRICELLI) is necessarily absent.

   Mr. NICKLES. I announce that the Senator from North Carolina (Mr. HELMS), the Senator from Kentucky (Mr. BUNNING), and the Senator from Utah (Mr. BENNETT) are necessarily absent.

   I further announce that if present and voting the Senator from North Carolina (Mr. HELMS) would vote ``no'' and the Senator from Kentucky (Mr. BUNNING) would vote ``yea.''

   The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?

   The result was announced--yeas 29, nays 67, as follows:

   Allen

   Bond

   Breaux

   Brownback

   Chafee

   Cochran

   DeWine

   Domenici

   Enzi

   Fitzgerald

   Frist

   Gramm

   Grassley

   Gregg

   Hagel

   Hatch

   Hutchison

   Kyl

   Lott

   Lugar

   McCain

   McConnell

   Miller

   Nickles

   Santorum

   Stevens

   Thompson

   Voinovich

   Warner

   Akaka

   Allard

   Baucus

   Bayh

   Biden

   Bingaman

   Boxer

   Burns

   Byrd

   Campbell

   Cantwell

   Carnahan

   Carper

   Cleland

   Clinton

   Collins

   Conrad

   Corzine

   Craig

   Crapo

   Daschle

   Dayton

   Dodd

   Dorgan

   Durbin

   Edwards

   Ensign

   Feingold

   Feinstein

   Graham

   Harkin

   Hollings

   Hutchinson

   Inhofe

   Inouye

   Jeffords

   Johnson

   Kennedy

   Kerry

   Kohl

   Landrieu

   Leahy

   Levin

   Lieberman

   Lincoln

   Mikulski

   Murkowski

   Murray

   Nelson (FL)

   Nelson (NE)

   Reed

[Page: S3807]  GPO's PDF

   Reid

   Roberts

   Rockefeller

   Sarbanes

   Schumer

   Sessions

   Shelby

   Smith (NH)

   Smith (OR)

   Snowe

   Specter

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