A Shady Deal: The Secrecy and Substance of the Largest U.S. Trade Pact

Today, Simon Lester over at the Cato Institute, posted a Huffington Post piece called "The TPP Trade Talks: Forget Secrecy, Let's Talk Substance."  In it, he cited our New York Times critique of the Obama Administration's inexplicable decision to keep the sweeping Trans-Pacific Partnership (TPP) "trade" deal behind a wall of secrecy.  

Simon argued that we should not focus on the TPP's secrecy, but on its substance.

First, that's a tad difficult when said secrecy is obscuring said substance. Second, insofar as we have been able to opine on the shady substance (e.g. thanks to leaked TPP texts), we've not really held back in doing so.  See here, here, here, here, here, here, here, here, here, here, and here. Oh, and here.  

Here's our full exchange with Simon, also posted at Huffington Post (thanks to Simon for his engagement): 

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3:43pm, Ben Beachy

Simon, it’s difficult to talk about the substance of a deal that cannot be seen.  For 19 rounds and more than three years of TPP negotiations, the U.S. public and even most members of Congress have been kept in the dark on the TPP’s content, which could rewrite swaths of non-trade domestic policies.  Those of us tracking the secretive deal have had to rely on rumors, vague characterizations, and a few leaked texts to get an idea of its sweeping substance.

Indeed, the worrisome TPP provisions you point to are themselves the results of leaks, confirming the need for greater transparency.  We only know about the deal’s overreaching copyright extensions that you mention because of a leaked intellectual property text.  Similarly, it is only because of a leaked investment text that we have seen the extreme TPP provisions that, as you note, would actually empower foreign corporations to surpass domestic legal systems and drag sovereign governments before extrajudicial tribunals to demand taxpayer compensation for health and environmental policies they find inconvenient. 

Meanwhile, the vast majority of the TPP’s 29 chapters remain tightly under wraps.  When a few leaked chapters of a 29-chapter deal include alarming threats to the public interest, how can the appropriate conclusion be that we should “not get hung up too much on transparency issues?”  The disquieting leaks provide all the more reason to amplify the call for a long-overdue unveiling of the secretive TPP.  

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4:16pm, Simon Lester

Ben,

There is some truth to what you say. However, a lot of what will be in the TPP was also in prior agreements (e.g., investor-state). As a result, I think we have the basis already for a pretty good debate! We probably know about 95% of what will be in it. Of course, like you, I am eager to hear about the remaining 5%. But we can't have complete transparency in a negotiation (and we certainly don't have it in Congress either, with the legislative process). So let's get started talking about that 95%.

When I hear Elizabeth Warren complain about secrecy, I get frustrated because I would rather see her weigh in on the substance. What does she think about investor-state? Or about copyright extensions? Or, for that matter, protectionist tariffs? Many prominent people seem wary of weighing in on these difficult issues, and instead focus on secrecy. To me, that seems like a bit of a copout.   

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6:00pm, Ben Beachy

Simon,

I cannot see how a few leaked chapters in a 29-chapter deal counts as knowledge of 95% of that deal's contents. For the gaping holes not filled in by leaks, we (like you) indeed have been looking at past deals to get a hint at what the TPP could hold. But that's hardly a substitute for release of the official and current TPP text, which has already undergone 18 rounds of negotiations and alterations.

And insofar as we have been able to ascertain the TPP's shady substance (e.g. via leaks), we (like you) have not exactly held back in commenting on said substance. We have repeatedly spotlighted the threats to access to medicines, Internet freedom, and health and environmental safeguards posed by the TPP's leaked investment and intellectual property chapters. And we have quite openly noted the havoc that the TPP could pose to Wall Street reform (also raised by Sen. Warren), food safety, and jobs if the TPP replicates the deregulatory rules of past pacts.

It is precisely because of such threats that it is so critical to unveil the rest of the TPP’s content.

As we pointed out in the NYT op-ed you cited, even the Bush administration released online the negotiating text of the last similarly sweeping “trade” deal (the FTAA). We're simply asking the Obama administration to uphold the same standard of transparency used by the Bush administration. Until that modest request is granted, harping on the TPP’s secrecy is merited.   

Comments

[Simon Lester]

Ben,

I appreciate all the substantive critiques you and Global Trade Watch have offered. In terms of your views, the only one I'm still curious about is the following: Why do you (seem to) support protectionist tariffs?

By contrast, Senator Warren has criticized the secrecy of the TPP but had very little to say about the substance of trade agreements. I'd love to hear more from her on the wide range of issues that we know will be in the agreement.

[Simon Lester]

Ben,

I appreciate all the substantive critiques you and Global Trade Watch have offered. In terms of your views, the only one I'm still curious about is the following: Why do you (seem to) support protectionist tariffs?

By contrast, Senator Warren has criticized the secrecy of the TPP but had very little to say about the substance of trade agreements. I'd love to hear more from her on the wide range of issues that we know will be in the agreement.

[Ben Beachy]

Thanks Simon for the appreciation. Regarding your question, the focus of Public Citizen (as I believe you’re aware) is how so-called “trade” agreements have intruded on domestic policy space for enacting and enforcing health, financial, environmental and consumer safeguards. We find it egregious that corporations can invoke the name of “trade” in pushing for pacts like TPP that would undermine the safeguards they have not been able to undermine in Congress. Even more ironically, these deals sold under the brand of “free trade” include patently anti-free-trade provisions, such as the TPP’s proposed extension of pharmaceutical corporations’ overreaching monopoly patent protections. In spotlighting all of the above, tariffs are not much of a focus for us. They’re also not much of a focus of the TPP. Only 5 of the pact’s 29 chapters cover traditional trade issues. We’re acutely interested in the other 24, and what they portend for safeguards enacted in the interests of the majority.

[Maillot Juventus 2014]

What does she think about investor-state? Or about copyright extensions?