TPP Part 2: The Secrecy Problem, Fast-Track, and Selling Out

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The terms of the TPP have been negotiated over many years, presumably in ill-lit hotel ballrooms and dungeon-like conference rooms. The Office of the US Trade Representative (USTR) and various advisory committees have hammered this agreement out with 11 other nations over what has to be, like, 11,000 pots of weak coffee? And it’s finally ready to go. Now, each member nation wants to make sure that nothing they’ve bargained for gets altered when it goes for approval before the US Congress. When you’ve arm-wrestled the representative from New Zealand into submission at 3 am in a hotel bar over what percentage of yeast in marmite has to originate within New Zealand before it passes customs with no tariffs, you want that provision to stick. So, President Obama has asked for “fast-track” authority, also known as trade promotion authority.

With this authority, the USTR and the advisory committee would author and submit the terms of the trade agreement to Congress, and Congress would simply vote up or down on the deal; that’s it. No committees, no public input or response, no filibustering, nothing: just a forced up-or-down vote on a bill that’s authored by the executive branch. That way, Congress wouldn’t be able to alter any of the provisions so painstakingly brokered over the last several years. This same trade promotion authority has been renewed many times in the past to cover negotiations of dozens of trade agreements, such as NAFTA and GATT.

Resistance to granting this authority, such as that coming from Senators Warren and Manchin, is grounded in concerns about public access to the agreement. The bill they proposed to get that transparency failed, and I think I can explain some of this. The trade negotiations have been carried out through the US Trade Representative and several governmental trade advisory committees. Usually, under the Federal Advisory Committee Act, it’s required that advisory committee proceedings be made available for public comment before the product is approved. But that’s not the case and never has been with trade agreements. The activities of governmental advisory committees that have to do with trade are exempt from the FACA, and the Office of the US Trade Representative (which handles these agreements) is exempt from usual administrative transparency rules. What I’m saying is, it’s normal for trade agreements to be kept secret. Is that a good thing? Here’s an argument for each side.

In defense of secrecy: if you publish the working text (it’s not finalized), you end up showing all your cards. When you’re negotiating deals like this, you have some objectives and soft limits that you don’t want to disclose up front; not if you want a favorable deal. For example, when you’re starting a new job, you know you’ll take a modest wad of cash and carte blanche on sticky note theft, but you start by asking for a fat sack of shiny ducats and your own personal bevy of gold-plated cabana boys. It’s the same with trade negotiations. If Congress or, gods forbid, the public were to insist on last-minute changes, it might wreck the whole thing. Congress and the public simply have no way of knowing the details of how hard-won each individual term of the deal may have been. Perhaps changing the marmite yeast provision at this stage might tank the logging provision we gave up in exchange for it. So a little transparency, while it sounds good, would likely overburden the process and might damage the whole deal.

On the other hand, in defense of transparency: The trade advisory committees involved in the negotiations are overwhelmingly made up of private industry representatives. Citizen and public interests are drastically underrepresented in these committees, most notably in the areas of labor and environment (surprise!). The Washington Post has a great interactive piece here where Christopher Ingraham breaks it down: there are 28 trade advisory committees, totaling 566 members. Out of 566 members, there are 31 labor representatives, 16 from NGOs, 25 governmental reps, and 14 “other” (academia, law, etc.). The remaining 85%, yes, 85%, are reps from corporations or industry trade associations. In other words, private interests. For all other government advisory committees, membership is required to be balanced among industry and citizen interests—but not trade advisory committees. Trade committees are exempt from both transparency rules AND membership balancing rules. That means representatives of corporations who sit on the advisory committee for TPP have greater access to the text of the deal than members of Congress. That’s kind of fucked up. What this means is, private interests are at the heart of this deal, because they’re largely the ones agreeing on the definitions and rules.

At this point, if you’re realizing that corporate interests are establishing international trade rules, it is appropriate for you to cry a little. Go on, I ain’t judgin. (For those of you who follow my other work, it’s interesting to note that this is why there is only one representative for renewable energy interests on the Energy and Energy Services advisory committee, as the astute Alleen Brown at The Intercept points out.)

Now: why should this bother you? Sean Starrs at Jacobin magazine explains: “this is what some call ‘structural power’—the ability to shape the rules and norms of the system so that others have little choice but to comply.” This is as opposed to “’relational power,’ or simply trying to force others to do something.”

The structural power of the TPP, because of its scope, will have an enormous impact on international trade, and therefore on international governance. Labor rights, intellectual property definitions, e-commerce, logging and fishing, carbon emissions, foreign investment rules (notably, investment in sovereign debt)… these are all at stake in the rules hammered out here. So we know that private interests are overwhelmingly establishing the definitions, norms, and rules for the majority of international trade to come through the TPP. The amount of structural power wielded here by private interests ought to be mind-blowing to you.

I think you should take this seriously. A lot of norms and rules of trade in the US viewed out of context seem benign. But if you look at how those rules came to be, and how they’re maintained, you’ll see that they conceal a great deal of the operation of power from public view. Here’s one example: It’s a seemingly benign fact that Texas buys more school textbooks than most states. Of course they do, they’re frickin’ huge. So, the textbooks chosen by the Texas State Board of Education are published and distributed in far greater numbers than other textbooks in the US, making those books cheaper per unit and limiting alternatives. So much cheaper, in fact, that Texas’ choice of textbooks gives those books a clear advantage on the market. No one forces other states to pick up those textbooks. But there are serious economic disadvantages to choosing other books, so there’s not much choice in practice. That means the Board in Texas can dictate what content does and doesn’t go into the books, and they do. Publishers agree, because not to agree means losing a metric shit-ton of business. Millions of kids grow up reading what Texas Board of Education members, elected by Texans, have negotiated as the “proper” content for a textbook. Now you begin to see how structural power might cause socio-culturally specific norms and ideology to be enforced so broadly as to establish acceptable patterns of thought and recognition for decades to come. [If you’re interested in learning more about this, this process is called cultural homogenization by thinkers like Arjun Appadurai, Ricardo Rozzi, and my ride-or-die homie, Alexandria Poole.]

When I think about the sheer number of definitions, rules, and norms that are being laid out in the major provisions of the TPP, I begin to see just how much in the way of American-style capitalism we’re exporting with this agreement. There are no clear or viable alternatives to globalization of capitalism under agreements of this magnitude. I’m not saying that’s a bad thing (nope, totally not saying or even suggesting that it’s absolutely a bad thing), but it’s a bad thing. Why? Because the extent of concealed operation of corporate power and interests is not only unknown but unknowable. That means, now more than ever, there is no such thing as ethical consumption in the US. When you don’t know which gods you serve, you don’t know the nature of your soul. So, sell your soul if you want, but at least get the terms in writing first.

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