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Sorting Out the TPP Secrecy Debate

Posted May 15, 2015

Ask any opponent of the Trans-Pacific Partnership (TPP) what they find most objectionable about the proposed trade deal and almost certainly the “secretive” nature of the negotiations will be one of the first things raised. 

Democratic Massachusetts Sen. Elizabeth Warren, one of the most vocal critics of the deal, epitomized this view when speaking last month to an organized labour anti-TPP rally she said: “From what I hear, Wall Street, pharmaceuticals, telecom, big polluters and outsourcers are all salivating at the chance to rig the deal in the upcoming trade talks. So the question is: Why are the trade talks secret? You’ll love this answer. Boy, the things you learn on Capitol Hill. I actually have had supporters of the deal say to me, ‘They have to be secret, because if the American people knew what was actually in them, they would be opposed.’”

Appearing later that same day on MSNBC’s The Rachel Maddow Show, reacting to President Obama having called her TPP stance “wrong” on the facts, Warren fired back, saying: “It’s the case that the president says he wants the American people to judge this deal based on the facts, but to do that, he’s got to make the deal public. Otherwise the American people can’t judge it on the facts. He won’t put the facts out there,” she said. She added that Congress shouldn’t “grease the skids” of such a secretive deal by approving fast-track legislation, under which Congress would give agreement’s finalized text an up-or-down vote, with no amendments. 

Of course, quite unlike normal domestic government legislation, trade deals are negotiated with competitive foreign nations and are therefore supposed to be kept secret during the process for strategic reasons. From the U.S. perspective, this enables trade negotiators to bargain more effectively without first showing their hand. The case against this otherwise normally sensible rationale was perhaps best made by law professor Margot Kaminski recently in a New York Times editorial piece calling for increased transparency “Because the negotiating process combines a general shield from the public with privileged access for industry advisers, the substance of American free trade agreements does not represent truly national interests.”

In response to Kaminski’s allegations that secrecy, among other things, “delegitimizes trade agreements” and “has been internationally criticized as undemocratic,” John Murphy, the Senior Vice President for International Policy at the U.S. Chamber of Commerce vigorously refuted what he called “numerous instances of misunderstanding and misdirection.” For example, he notes that Kaminski managed to find just one example of a trade agreement rejected by a legislature, whereas there are presently almost 400 bilateral or regional trade agreements in force around the globe, all of which arrived at by a process Kaminski claims to be illegitimate and undemocratic.  

Attempting to make sense of the argument, Cato Institute analyst Bill Watson suggested that, as is frequently the case in such “debates” over trade policy, both sides are to an extent right, but appear not to be talking about the same thing.  With considerable insight, Watson metaphorically characterizes the worries underlying Kaminski’s transparency concerns as “not calling for negotiators to show our playbook to the other team” so much as her “trying to make sure that the negotiators are actually on our team in the first place.”

The reason why both sides appear to be talking past each other on the matter of secrecy he suggests is that if the TPP was simply about reducing protectionist policies like tariffs, quotas, and subsidies, then it would make perfect sense to give trade negotiators the leeway needed to reach the best deal, but comprehensive agreements like the TPP also cover a range of other issues such as setting international rules on intellectual property rights, environmental standards and labour laws possibly including regulations on minimum wage, maximum hours, and worker safety.   

“U.S. trade negotiators are pushing these provisions without adequate input from domestic civil society,” Watson says, adding that the administration is essentially “using confidentiality to avoid engaging with the public on these issues, and that needs to change.” He concludes by observing that “As long as trade agreements are being used to set regulatory policies, reasonable complaints about democratic legitimacy will be part of the debate.  So unless proponents are willing to accept a cleaner trade agenda focused more squarely on reducing protectionism, they will need to accept some form of increased scrutiny and broader participation in negotiations.”