Congress Is Poised to Pass Uyghur Forced Labor Prevention Act

The legislation has been stalled for more than a year despite overwhelming support in both chambers.

Published December 14, 2021

Lawmakers in the House and Senate reached a deal today to advance a long-stalled bill to block goods made with forced labor from coming into the United States from Xinjiang.

The compromise legislation, sponsored by Rep. Jim McGovern, a Massachusetts Democrat, and Sen. Marco Rubio, a Florida Republican, assumes all products made in part or in whole in Xinjiang are tainted with forced labor. It gives businesses the option to receive exemptions from the import ban if they can prove to U.S. Customs and Border Protection with “clear and convincing evidence” that their supply chains are free of coerced labor. According to aides involved in the discussions, the deal drops stricter reporting requirements for businesses that were included in the House legislation.

It does, however, include a quicker timeline for implementation of the import ban—180 days after enactment of the legislation—which is closer to the House version’s 120 days than the Senate version’s 300 days.

McGovern said the sponsors “will be moving our bill through both chambers & to President Biden’s desk as quickly as possible.” He officially introduced the new language in the House this afternoon, according to his office. A copy of the text, obtained by The Dispatch, is available here.

Sources involved in the talks said the bill could pass both chambers by the end of the week. If so, the bill is on track to meet the timeline McGovern shared with The Dispatch in an interview last week, when he said he was aiming to pass the measure into law before the Beijing Winter Olympics, which begin in early February.

“We want to get this done as quickly as possible,” McGovern said, noting the upcoming Olympics. “I want this done well before that.”

The agreement comes after the effort foundered for more than a year despite overwhelming support in both chambers. A lobbying campaign by large corporations sought to water down key provisions of the legislation after it initially passed the House in the last Congress, and in recent months, Biden administration officials have quietly expressed reservations to the bill’s supporters. President Joe Biden has not said whether he will sign the measure.

Despite those headwinds, the legislation offers a rare moment of near-unanimity in Congress.

A form of it passed the Senate over the summer without any opposition, and the House approved its version last week with a vote of 428-1, surpassing the 406-3 tally it carried when it passed the chamber last year. (Kentucky Republican Rep. Thomas Massie was the only dissenter this time around.)

“In a town where there isn’t really agreement on anything—I mean, we have trouble agreeing on what to have for lunch—there is agreement that human rights ought to matter and that having corporations and companies produce clothing or footwear or even food products that were the result of slave labor is unacceptable and unconscionable,” McGovern said.

An aide close to the discussions said staffers from the two offices met every day last week to discuss how to move forward. Reports of a quick deal struck some human rights advocates by surprise on Monday night, given the acrimony that bubbled over between Rubio and congressional Democrats in the past few weeks.

Rubio pushed to have his version of the legislation, updated with a 180-day timeline for the import ban, included in the Senate’s annual defense authorization act at the beginning of December, which Democrats rejected. Rubio questioned why Democrats were slow-rolling the bill’s passage, pointing to the Senate’s approval of it over the summer. He blamed the Biden administration for the delay.

Washington Post columnist Josh Rogin confirmed the administration was pushing against key components of the bill, reporting last week that officials had been calling for a more limited strategy. He wrote that in an October call between Deputy Secretary of State Wendy Sherman and Sen. Jeff Merkley, the Senate Democrat who sponsored the legislation alongside Rubio, Sherman “made it clear that the administration prefers a more targeted and deliberative approach to determining which goods are the products of forced labor.”

Merkley also publicly confirmed there has been pushback from the White House. He recently told Bloomberg there is some “hesitancy” on the administration’s part and “I disagree with it.”

Because of the administration’s concerns, some Republicans didn’t believe House Democrats were passing the bill last week for the sake of actually advancing the bill. House Speaker Nancy Pelosi didn’t send the House version to the Senate after it passed last week, prompting Rubio to allege Democrats want to be able to say they support the bill but also “make sure it never becomes law.”

Drew Hammill, a spokesman for Pelosi, responded to Rubio’s tweets by saying it was important for McGovern’s conversations with Rubio to reach a final compromise bill and for Congress to pass it as soon as possible.

In his call with The Dispatch last week, McGovern denied being pressured by the White House to delay a House vote on the measure. “The administration is not containing what we’re doing up here,” he said.

“They wouldn’t dare. No, they haven’t,” he added when asked if he had heard from any administration officials seeking to slow or block the bill. “Somebody asked me, you know, ‘John Kerry must have called you.’ He didn’t. If he did, I would have told you. I’ve had conversations with State Department officials, but in those conversations no one ever said to me, ‘stop the bill or delay it or slow walk it.’”

Foreign policy aides, human rights advocates, and members of Congress have raised fears for months that climate czar John Kerry, in seeking cooperation with China on climate change, has led the White House to tone down its rhetoric and policy responses to China’s sweeping human rights abuses.

The Chinese government is carrying out a genocide against ethnic and religious minorities in Xinjiang, a region in northwest China. According to the State Department, Xinjiang authorities have arbitrarily detained more than 1 million Uyghurs and other minorities, including Kazakhs and Krygyz, in concentration camps since 2014. Victims of the brutal campaign, both in and out of the camps, have been subjected to torture, sexual abuse, forced abortions and sterilizations, and oppressive surveillance.

Chinese authorities have also established a massive network of factories and cotton fields, where hundreds of thousands of people have been forced to work.

Importing goods made with forced labor has been illegal in the United States for more than 90 years, but enforcing those rules has become exceptionally difficult as it pertains to Xinjiang.

It’s hard for American consumers to know whether the items they’ve bought in the past few years have been touched by China’s forced labor scheme, but for many products, it’s likely. Global supply chains are complex, and goods from Xinjiang have a large footprint. Cotton from the region makes up 85 percent of Chinese cotton production and 20 percent of the world’s cotton supply.

Another industry that depends heavily on Xinjiang is solar power. About 45 percent of the world’s supply of polysilicon, an essential component of solar cells, comes from Xinjiang, according to some estimates. Buzzfeed News’ Megha Rajagopalan and Allison Killing reported earlier this year that some polysilicon manufacturing in Xinjiang is tied to a state-controlled paramilitary organization, which has been sanctioned by the American government for contributing to the genocide in the region. Other suppliers made veiled references to participating in the genocide, per their reporting.

A 2020 report from the Congressional-Executive Commission on China found that global supply chains are “increasingly at risk of being tainted with goods and products made with forced labor from the XUAR.” It added that lack of access to the region and an inability to interview workers, who are at risk of punishment by authorities, can make it impossible to conduct due diligence to ensure products are being made without coerced labor.

“The risk for complicity in forced labor is high for any company importing goods directly from the XUAR or those partnering with a Chinese company operating in the region,” the report reads.

The commission included a list of goods suspected of being made or processed with forced labor, ranging from textiles and electronics to food products. Numerous high-profile companies, including Adidas, Nike, and Coca-Cola, have been implicated in sourcing products made with forced labor. Some brands suspected of having forced labor in their supply chains have moved their sourcing out of Xinjiang, such as Swedish clothing brand H&M, which moved in 2020 to move its cotton sourcing out of Xinjiang.

Some of the products coming into the United States from Xinjiang are less innocuous than a pair of tennis shoes or a cog in an electronic device: In July 2020, U.S. Customs and Border Protection blocked a 13-ton shipment of human hair, suspected to be from prisoners.

The United States banned all imports of tomatoes and cotton from Xinjiang earlier this year, given the prevalence of forced labor in those supply chains.

Beyond expanding the ban on imports, lawmakers had hoped to include provisions to heighten transparency for investors.

The House bill’s Securities and Exchange Commission reporting provisions would have required businesses to disclose known activity with entities involved in producing surveillance technology used in Xinjiang, building or maintaining detention facilities, establishing manufacturing facilities in Xinjiang, and related activities, including activities with those already sanctioned by the United States or complicit in committing the atrocities in the region.

Disclosures under the bill would have involved the nature and extent of such activity, the revenues and net profits attributable to it, and whether the activity is expected to continue. Rubio’s initial Senate bill in the last Congress included similar provisions, but that section was left out in the version he introduced this year.

“I would like somebody to tell me why it can’t pass, other than the fact that I think some of the businesses, some of the corporations, don’t want to do it,” McGovern told The Dispatch when asked about that section last week. “Let’s be honest. It requires more transparency and more accountability. And I think that there are some in the corporate world who would prefer not to have that.”

Some House Republicans recently pushed back on the idea of disclosures related to China during an October hearing of the House Financial Services Committee. Michigan Republican Rep. Bill Huizenga, the ranking member of the subcommittee that deals with investor protection, said in an October hearing that new disclosure requirements “will not likely change China’s behavior.”

“The SEC tends to be the wrong agency to address national security and human rights issues, and we’ve seen that before with things like the failed conflict minerals provisions of Dodd-Frank,” he added. (For Capitolism readers, Scott Lincicome has some background on the Dodd-Frank issue here.)

Proponents of new requirements said they weren’t intended to change China’s behavior, but to protect American investors from being involved in human rights abuses.

Even without the disclosures section, advocates say the legislation will go a long way toward curbing corporate complicity in the human rights abuses in the region. The legislation will also set an example for how the international community can respond to the genocide.

“It helps to first start to show how the world can impose costs on China for doing what they’re doing,” Peter Irwin of the Uyghur Human Rights Project told The Dispatch.

“Look at the Olympic diplomatic boycott, for example,” he added. “Now everybody else is doing their diplomatic boycott: Australia, U.K., Canada, and others. It helps when the U.S. moves first. If we’re looking at a broader strategy in terms of how we stop what’s happening, this is helpful. A bill is helpful. We want to see the strongest bill that can pass and be signed by the president.”

On the Floor

The Senate is expected to take up a measure to raise the debt ceiling today. The chamber will also finish considering the annual defense authorization act this week.

The House will vote soon to hold former White House chief of staff Mark Meadows in contempt of Congress for refusing to cooperate with the January 6 committee’s requests. Members will also vote on a bill sponsored by Rep. Ilhan Omar to combat Islamophobia. The House may also take up the debt ceiling measure after it passes the Senate.

Key Hearings

Former Food and Drug Administration Commissioner Robert Califf testified at a Senate HELP Committee confirmation hearing this morning to serve as FDA commissioner. He held the role during the end of former President Barack Obama’s administration. Information and video here.

The House Oversight select committee on the coronavirus crisis will hold a hearing this afternoon on accelerating global vaccination efforts. Information and livestream here.

Four airline CEOs will appear before the Senate Commerce, Science, and Transportation Committee on Wednesday afternoon for a hearing about the pandemic’s impact on the airline industry. Information and livestream here.