Last Friday one of the final acts in the long-running saga of the Trans-Pacific Partnership agreement began playing out in Washington DC.

It may either be its salvation or its death knell. At present, odds are on the latter.

The Obama Administration tabled a bill in Congress to give the President "Fast Track" authority, meaning Congress would have to give up its power to pick apart a final TPP agreement and vote yes or no within a capped time.

In return, the bill gives a wish list of what US businesses want from the TPP, while protecting America's domestic interests - but those negotiating objectives can be ignored and would need to be unless parts of the deal are reopened. An almost identical bill sank last year.


The timing is do or die for Obama - in two months the window is likely to close on his ability to get a deal through under his watch.

The New York Times predicted this will be one of the toughest legislative battles of Obama's last 19 months in office.

Analysts say he will need 30 to 50 votes from the Democrats. The latest counts from Washington put him well short.

Despite months of negotiations, no senior House Democrat was willing to co-sponsor the bill. Powerful ranking Democrat on the House Ways and Means Committee Sander Levin described the negotiating objectives as "obsolete or woefully inadequate" while putting "Congress in the back seat". Headlines declared "Democrats at civil war over trade".

The TPP is already infecting the Democrat primary campaign.

Presidential hopeful Hillary Clinton, a champion of husband Bill's unpopular North American Free Trade Agreement, took 24 hours before hedging her bets by setting conditions the TPP can never satisfy.

This rebellion in his own party forces Obama to rely on Republicans, some of whom already describe him as the "imperial president".

US consumer group Public Citizen says there is no guarantee the bill will even get to a vote, and might be withdrawn if it is likely to fail. The three major attempts to get fast track in the past 25 years saw one pass by 27 votes in 1991 and another by 2, while the third failed.


What does this mean for TPP negotiations as a whole and for New Zealand?

Its fate has always been captive to US politics. In the past few months half the other 11 negotiating countries have said they won't conclude a deal without fast track.

Tabling this bill is designed to have a demonstration effect, creating a sense of momentum ahead of talks with Japan and a meeting of TPP ministers scheduled for late May.

The strategy was to spin the bill as a done deal, here and internationally. Radio New Zealand announced "Obama to get fast track authority for TPP", saying "the US Congress has agreed to give President Barack Obama the authority to fast-track its signing".

The Herald ran a similar headline. I received many emails with the same message.

No media would have swallowed that line if a New Zealand government had merely introduced a bill to our Parliament, with the majority of its own party opposed.

The message was later corrected. But first impressions count.

The next step is to convince the 11 other TPP parties to ignore the evidence and believe Obama can get it passed.

New Zealand appears to be playing along. Trade Minister Tim Groser is describing the introduction of the Fast Track Bill as an "end-game" and saying it's time for countries that were holding back, notably Canada and Japan, to make a full commitment.

Groser says he is going to assume until proved otherwise that the Obama Administration would not have submitted the bill unless it had the numbers to pass it.

That is disingenuous. The minister has been around in this game for decades. He knows the Fast Track Bill may well be dead on arrival.

For him to use it to justify New Zealand making controversial trade-offs that are still more likely than not to be unpicked by Congress and urge countries to do the same is grossly irresponsible.

Jane Kelsey is a law professor at the University of Auckland.