“Nice” Trade Lawmaking & the Separation of Powers, by Kathleen Claussen & Wendy Li
While the March 2023 exchange between USTR Katherine Tai and Rep. Greg Murphy was exceptional in many ways, congressional oversight over USTR has long focused on the personality and toughness of its agency head. These traits matter in what we argue is a unique triadic separation of powers dispute.
In March, what started as an ordinary congressional hearing on the Administration’s trade policy suddenly went viral. The moment to which we refer is when Congressman Greg Murphy (R-NC) said to Ambassador Katherine Tai that he thought she was “too nice” to be the U.S. Trade Representative (USTR). Rep. Murphy told Ambassador Tai that “negotiators are usually very, very tough and sometimes mean people; they’re not nice people like you are.” During her response to his extended comment, he added: “you also have too nice a smile.” It appeared that he was trying – without success – to make a point about the Biden Administration’s trade policy. He went on to express frustration about the Administration’s focus on green energy and China’s economic prowess. (Rep. Dan Kildee followed Rep. Murphy and expressed disagreement that Ambassador Tai is “too nice”; rather, he went on, “I think you are just nice enough”.)
While we are reluctant to draw still more attention to this exchange, it was surprising that these comments caught policy observers off guard. Of course, Rep. Murphy’s inappropriate remarks hit a public nerve given their consistency with stereotypes detrimental to women and Asian Americans. The moment was exceptional in that it was a particularly personal, targeted comment in a forum where substance and process reign. But since Congress created the position of what is now the USTR in 1962, members have long been concerned with the toughness and assertiveness of the agency and its leader.
Congressional apprehensions over the USTR’s demeanor are often reflective of another less superficial matter: the debate over trade’s separation of powers. Rep. Murphy attempted to make a point about those fraught powers, arguing that Ambassador Tai is “handicapped because of administrative folks that you have to report to, etc., that are handicapping you and your job.” These sorts of misgivings about USTR’s role in the administration have been echoed by members of Congress across administrations and parties. Taking these institutional disputes into consideration, the recent exchange raises several questions that this essay takes up: Just how have members of Congress interacted with the USTRs of the past, and how might those interactions vary based on the demographic characteristics of the USTR? When do personality traits become relevant for members of Congress? Ultimately, why do these performative moments matter for trade regulation?
As part of a research project we administer called TradeSpeak, we have the data to tell us when members of Congress and the USTR highlight certain personality traits, like toughness or niceness, as important features for the nation’s principal advisor on international trade policy. We have analyzed the transcripts from every public hearing since 1978 where the USTR or USTR-nominee appeared before a congressional committee. The results may be surprising.
Of course, as anyone who has ever watched a congressional hearing can observe, remarks made in these hearings on either side of the dais are typically delivered with the public in mind. It is difficult to conclude that such comments fully or, in some instances, faithfully reflect sincere interests or opinions held by participants, nor do they tell us much about how political leaders interact behind closed doors or in everyday life. Nonetheless, we find these hearings important for understanding how political leaders interpret and understand the law. After all, before U.S. trade laws reach goods at the nation’s borders, they are influenced by and given meaning through public interactions like these hearings.
Since 1978, there have been 13 USTRs, including Ambassador Tai. Four have been women, two have been people of color, and three have been named Robert. They hail from different parts of the country – though California, Illinois, Ohio, and Tennessee have each seen two – and have brought many different backgrounds (business, government, etc.) to the position. Six USTRs have been appointed by Democratic presidents and seven by Republicans.
Some personality traits quickly surface in the USTR’s hearings and are repeatedly invoked. These include acknowledgements by members and by the USTRs themselves that the USTR must be “tough”, “clear”, “direct”, “forceful”, “tenacious”, “disciplined”, “persuasive”, “smart”, “hard-working”, “an able or skilled negotiator”, “strong”, “firm”, “intelligent”, “strategic”, and “savvy”. In some situations, traits dominate the conversation more than discussions of trade law or policy knowledge or experience. And not all come up in each hearing. Hearing participants have emphasized different traits at different moments in history, and sometimes tailor their comments depending on specific features of an individual USTR’s background.
What personality traits do members or the USTRs highlight in their interactions?
Toughness stands out as a focal concern for members of Congress. In the earliest hearing we tracked in our study, participants already emphasized the importance of toughness, perhaps because the USTR was a relatively new governmental position at a critical time in the development of the world’s rules-based trading system. As one senator said to Reubin Askew in 1979, “I do not know you well enough to know whether you are a tough enough negotiator or not. I hope you are; I assume you are.” Likewise, at Clayton Yeutter’s confirmation hearing in 1985, summing up the views of others, a senator noted that: “all three of my colleagues used one word in describing Clay Yeutter, and that is ‘tough.’ I think that is an apt description of him. He brings an ability of toughness, of fairness that we need.”
In a 1989 hearing with the first woman USTR, Carla Hills, members commented that she was “a very skilled and very tough negotiator, someone who is equipped by intellect and by character”; “she is savvy, she is tough. As a person, she radiates tremendous integrity and toughness.” Four years later, members and their guests vouched for Mickey Kantor’s toughness, saying that he was “tough, smart, and extraordinarily hard-working.” One senator commented, “I can tell from talking to you, A, you are a tough negotiator, and B, in the right circumstances you are a nice guy.” Multiple members likewise referred to Charlene Barshefsky in 1996 as tough, and associated her toughness with her past work, and with her tenacity and “aggressive advocacy.”
Interestingly, “toughness” comes up far less after 1996. It was almost a constant refrain in the 1970s, 80s, and 90s, but it was less emphasized since then. In more recent hearings, however, speakers sometimes hinted at the same sentiment in other words such as when Robert Lighthizer was referred to as a “bulldog” in 2017.
Lately, traits like skillfulness, expertise, and intelligence have taken on greater importance. In 2001, members noted that Robert Zoellick had “the depth and breadth of experience that is necessary to navigate the US through the complex process of trade negotiations” and they were “confident that Bob Zoellick [would] bring strong leadership and expertise to this position.” Emphasizing why Rob Portman ought to be confirmed in 2005, one member commented that he had “complete faith he will serve our Nation as our Trade Representative with the intelligence, enthusiasm, and strength that have marked his time in Congress”, while another said he was “one of the smartest guys on the Hill” and that “he has the background.” When discussing Susan Schwab’s capabilities in 2006, senators made remarks such as “everyone knows about your skill, experience, and positive energy” and that they long appreciated the “skill, wisdom, and energy that [she brought] to the table.” They commented that she was “smart, knowledgeable, and experienced” and remarked about “the quality of her mind, her grasp of the issues.”
While we can’t be certain why the shift in this rhetoric occurred, it could be connected to the normalization and multilateralization of international trade law and the creation of the World Trade Organization in 1994. Members of Congress and the USTRs may have observed that different skills, such as consensus building, would be required to maintain the system that previously they had to be “tough” to create.
Over the years, it is less common that USTRs are critiqued for not being tough enough. The closest instance we found was probably in 2006, during the confirmation hearing of Susan Schwab. What distinguishes the Schwab hearing from the Tai/Murphy exchange is that Senator Chuck Grassley was not personally critiquing Ambassador Schwab’s traits or her style. He acknowledges that she is probably “hard-nosed” but that the public’s perception may be different:
The message that you send to us and what you are trying to do—I should say, not you as a person, but your agency—does not come through to the American people that we are really tough. It leads me to believe—and maybe you have to be in your business—that you are too diplomatic. People that negotiate are too diplomatic in how they approach these problems that the average working man and woman in America sees, and they see that we are not doing enough to protect our interests. So I would urge you to be just a little more hard-nosed, not only in your negotiations, which you probably are anyway, but signal to the American people that you are hard-nosed….
Members of Congress have wrestled with how to value diplomacy in their charges to the USTRs that have come before them. Being diplomatic is seen as important but may not be consistent with fighting for U.S. interests. At the start of her tenure, members of Congress from both sides of the aisle described Katherine Tai as: “a skilled negotiator, … [with] understated grit and outstanding character” and a ‘‘trailblazer.” She was praised for “her commitment to taking all views into account” and having a “spirit of consensus.” Likewise, when speaking with Robert Zoellick, members reinforced that his diplomacy would be critical to his success. In contrast, a senator noted the limits of diplomacy in his conversation with Michael Froman:
You are very erudite on these issues… Also, I think you are also very diplomatic in your responses. I want to see a Trade Representative who, at the end of the day, is going to stand up for U.S. intellectual property rights worldwide . . . So I hope your diplomacy will have limits, because, at the end of the day, we have diplomatically been losing a lot of ground across the globe, and that is not in the interests of [the U.S.].
In what settings do personality traits become relevant for members of Congress?
Based on just the Tai/Murphy exchange alone, some might be inclined to believe that the personality traits highlighted by Congress vary by gender. Although it is difficult to say with such a small pool of USTRs, our data seem to show that qualities of “toughness,” “skill,” “diplomacy,” or “experience” have been used to describe people across gender. More important is that we find that these personality traits often come up when discussing the USTR’s relationship to Congress and to the president, both at the selection stage when the USTR is starting the job and for emphasis throughout their tenure.
Most of the instances that we describe above come up in the respective USTRs’ confirmation hearings before the Senate Finance Committee – in that light, the Murphy-Tai exchange is an exception. These instances also frequently arise in the introductory parts of the hearing where the nominee is introduced to the Committee and to the public. Consequently, some of these references are made while describing the USTR-nominee’s prior career milestones. But members do not stick to generic lists of accomplishments. Instead, they speak of temperament and reputation, much of which they acknowledge comes to them secondhand. In policy hearings, moments about personal characteristics, such as niceness, are far less common, which made the Tai/Murphy exchange surprising to some trade observers.
Comments about personality traits arise in both confirmation hearings and policy hearings when members seek to describe what they see as the appropriate relationship between the USTR and Congress or among Congress, USTR, and the president. For example, participants have remarked on how different USTRs have “know[n] the Congress” or “understand how the Hill works.” At Katherine Tai’s confirmation hearing, one senator said, “we are assured that she knows Article 1, Section 8 of the Constitution backwards and forwards,” emphasizing the constitutional provision that gives Congress the power to regulate foreign commerce. Despite this statement, which was perhaps intended as a reminder, this constitutional prerogative has now proven one of the most divisive issues between Ambassador Tai and the Hill.
As hearing participants have sought to stake out their trade turf, they have also noted on numerous occasions how the USTR is expected to manage the delicate space between the two branches, despite being located squarely in the executive branch. Members told USTR Robert Lighthizer that Congress is his “client” and that they expected the USTR to act on Congress’ behalf — as its agent in the making of trade law and policy. This approach led one senator to have “serious concern” about whether Clayton Yeutter would “be able to get the administration to listen to him. And, particularly, whether or not he is going to be able to get the President to listen.” The latter raises a similar point to that which we understand Rep. Murphy sought to make in his exchange with Ambassador Tai.
These sorts of comments reflect changing views in this triadic relationship among the Congress, the USTR, and the president that have informed how our trade administration functions. They often acknowledge that the USTR is “the hardest job” or one of the most difficult jobs in the government, in part for this reason.
Ultimately, why do these performative moments matter for trade policy?
Senators are not shy about laying down their views as to what is demanded of the nation’s top trade policymaker. They do so in ways that seek to emphasize how the USTR ought to be an agent of the Congress, or an advocate in the international community on Congress’s behalf. The USTRs have sought to manage this triarchy, whether as interlocutor between the branches or as the president’s spokesperson.
Congressional hearings involving the USTR, performative as they may be, manifest this unique institutional structure in U.S. foreign relations governance. There is no other role quite like the USTR.
As trade law issues remain at the top of the foreign policy agenda, rhetorical struggles around the separation of trade law powers are likely to intensify – with legal consequences. Members can alter the course of trade lawmaking through their many authorities: they have the power of the purse, the power of institutional creation and destruction, the power of delegation and of removing authorities from the USTR’s toolkit.
Congress wants the USTR to be tough, but only if the USTR is tough on Congress’s behalf. Moments when the USTR strays from that approach, or members’ perception that she has done so, could drive members to alter significantly the trade administration landscape. Those considerations are well underway now on both sides of the aisle. Indeed, this recent exchange reflects only the tip of the iceberg.
Kathleen Claussen is a Professor of Law at Georgetown University. Wendy Li is a Ph.D. candidate in sociology at the University of Wisconsin-Madison.
 List of Past USTRs, Office of the U.S. Trade Representative, https://ustr.gov/about-us/history/list-past-ustrs.