On Taiwan: A Congressional Update

COMMENTARY Asia

On Taiwan: A Congressional Update

Dec 9th, 2020 3 min read
COMMENTARY BY
Walter Lohman

Director, Asian Studies Center

As Director of The Heritage Foundation’s Asian Studies Center, Walter Lohman oversees the think tank’s oldest research center.
Taipei City skyline view at dawn. Kiyoshi Hijiki/Getty Images

Key Takeaways

The Taiwan Assurance Act would force a formal review of the diplomatic treatment the U.S. affords Taiwan.

Congress has also jumped in with both feet on the prospects of a U.S.-Taiwan Free Trade Agreement (FTA).

Even if these bills don’t pass this Congress, they will certainly be reintroduced in the next.

The world is intently focused on the results of the 2020 U.S. presidential election—and understandably so. The U.S. is the most powerful country in the world. What its president says and does matters enormously, not least to Taiwan. U.S. foreign policy, however, is not just an executive branch thing. In fact, in some ways, Congress matters more than any passing occupant of the Oval Office.

This has certainly been the case with Taiwan policy. Going back to the days of the “China Lobby,” when that phrase referred to the ROC, Congress has kept administrations honest on Taiwan. The Taiwan Relations Act (TRA) itself was a case of the legislature all but overturning the Carter administration’s decision to derecognize Taiwan. It has always been like this: The executive branch seeking maximum flexibility in its cross-straits policy (usually in deference to Beijing) and Congress pushing in the direction of the status-quo before Washington’s switch in diplomatic recognition.

It is no different today. This column has previously highlighted passage of the TAIPEI Act and the Taiwan Travel Act. Now there is the Taiwan Assurance Act, introduced by Rep. Michael McCaul (R-Texas), the ranking member of the House Foreign Affairs Committee. The Taiwan Assurance Act would force a formal review of the diplomatic treatment the U.S. affords Taiwan. The McCaul bill has passed the House, and a Senate version has been introduced by Sen. Tom Cotton (R-Ark.).

That the U.S. has reduced the amount of red tape around U.S.-Taiwan relations already—the Secretary of State commending the President of Taiwan on re-election, for instance, and Taiwan’s Representative in Washington meeting officials at the State Department—is testament to the soundness of the idea. The U.S. “One China Policy” has never been quite as demanding as State Department lawyers have led us to believe. It is fair to ask what else we are pre-emptively conceding.

Another effort, the Taiwan Relations Reinforcement Act, introduced by Sens. Marco Rubio (R-Fla.) and Jeff Merkley (D-Ore.) would make appointment of the director of the American Institute in Taiwan (AIT) subject to the advice and consent of the Senate, like any other chief in-country diplomat, and give him or her title of “Representative.” Perhaps more significantly, the bill calls on the executive branch to work with the business community and NGOs to develop a code-of-conduct for dealing with cross-straits nomenclature. This is not about increasing regulation. Rather, it’s giving private organizations a tool to deflect demands from Beijing that they treat Taiwan as part of the People’s Republic of China.

Congress has also jumped in with both feet on the prospects of a U.S.-Taiwan Free Trade Agreement (FTA). Last year, 161 House members sent a letter to U.S. Trade Representative urging him to start FTA negotiations. This past October, 50 Senators did the same. Then just weeks ago, during a Heritage Foundation conference co-hosted with the Taiwan Foundation for Democracy, the Senate’s leading voice for free trade, Sen. Pat Toomey (R-Penn.), revealed his intention to formalize these pleas in a resolution.

Now, sometimes members of Congress overshoot, as they have in some other pending Taiwan-related legislation. When they do, the legislative process corrects for it. This is especially the case when the President’s party controls at least one house of Congress. House Speaker Nancy Pelosi, a certified “panda-slayer,” is not beyond putting a president of her own party in an uncomfortable position vis-a-vis China, but the chances of her forcing a presidential veto on a Taiwan bill are very slim.

That said, it is important to take note of what today may seem like Congressional excesses. Positions once on the fringe—inviting Taiwan’s president to address a joint session of Congress, for example—are now widely shared on the Hill. The possibility that such a move may violate America’s one-China policy is of no concern to members. In turn, such widespread, popular disregard for long-standing policy—whether or not it is tied to legislation—must ultimately be accounted for by the executive branch.

Of course, the 116th Congress is now winding down. These bills might not pass. Not because they are minority positions. Good measures die every Congress for lack of floor time and the contemporary demand that foreign policy bills not only have overwhelming support, but unanimous support. Yet, even if these bills don’t pass this Congress, they will certainly be reintroduced in the next. Congress will continue to push the Executive Branch back toward the pre-1979 status quo. And unlike in the 1990s—the last time there was so much noise on the Hill about Taiwan—the U.S. business community no longer has the stomach to temper Congressional zeal.

During a 2016 Senate debate to impose new sanctions on North Korea against the will of President Barack Obama, then Ranking Member of the Senate Foreign Relations Committee Ben Cardin (D-Md.) asserted, “We are the policy makers. We make the laws.” Sen. Cardin and his colleagues succeeded. Whether through legislative fiat or the steady of erosion of policy consensus, Congress can succeed on Taiwan, too. This is good reason to pay as close attention to it as to any president.

This piece originally appeared in the Taipei Times