12 May 2015

Fast Track Authority For Trans Pacific Partnership Defeated

I'm feeling a bit sheepish.  For the first time in a couple of years that I write to my Senator, Democrat Michael Bennet (from Colorado), to oppose the Fast Track authority for the Trans Pacific Partnership (TPP) treaty, a position I haven't waivered from holding.

But, just after sending off my missive, I learn that the U.S. Senate already voted to reject Fast Track authority (or strictly speaking, voted to force debate in the face of a filibuster threat made by Senate Democrats) two hours earlier, by a vote of 52-45, in a case where 60 votes were required to debate the proposal.

The initial story from the Denver Post disappointingly doesn't say how he voted.  He joined a bipartisan majority to advance the bill from the Senate Finance Committee to the full Senate for consideration last month.  I had to go to Daily Kos (which is reporting a 53-45 vote) to find out that "All but one Democrat—Sen. Tom Carper of Delaware—opposed the motion to proceed with debate on the bill."

This means that all Presidential race hopefuls in the U.S. Senate are now on record as opposing President Obama's signature trade initiative.

Thus, Bennet voted against cloture, despite his earlier vote in favor of the bill in the Senate Finance Committee.

Good for him.  Despite the fact that I know by definition that he didn't listen to my vote for reasons that are entirely my fault, he did listen to other constituents in his base.

Of course, the oddest part of this picture is that a united front of Democrats have to unite against a Democratic President to achieve their objective.

President Obama has been particularly tone deaf on this issue, an initiative that is a holdover from George W. Bush's administration, commenced shortly before Obama was elected.  He should have let the process die with the administration that conceived it.  Instead, twenty rounds of negotiations have been conducted from March 2010 through July 2014, apparently fueled by a process put in place and a set of shared principles cemented by President Obama's predecessor.

Now, the failure of the bill has tarnished President Obama, and fulfilled the Republican narrative about a President who can't accomplish anything that they helped create, while at the same time leaving them with clean hands as "bipartisan" supporters of the President's trade initiative.  All around, this treaty has been a tactical disaster for the administration.

About the TPP

The administration's official stance on the issue is found at the U.S. Trade Representative's website.

There are basically two kinds of knocks against the TPP.  For more, see a recent article at Salon.com. U.S. Senator Elizabeth Warren has a forceful and informed op-ed column in the Boston Globe.

A Secretive and Closed Process Controlled By Business Interests

One is process oriented.  The negotiations have been conducted in secret, except for panels of consultants, about five hundred in all, chosen by the administration and mostly made up of executives of big businesses and corporate lobbyists and sworn to secrecy themselves.  Senators have access to the drafts but are also sworn to secrecy. Fast Track authority on the TPP would allow corporate interests to achieve legislative policy gains that they could not have achieved through the ordinary legislative process in a dozen member countries including our own.

This process prevents the administration from credibly defending its position.  For example, the U.S. Trade Representative issued a statement purporting to dispel myths about the Investor-State Dispute Resolution provisions of the treaty, but did not disclose the relevant proposed treaty language itself, so the public can not independently evaluate those claims, and can not take comfort that the U.S. Trade Representative's assertions on any part of the treaty are trustworthy.

Arguments have been advanced that this secrecy is necessary to make the negotiation process work, but a similar process, to draft proposed Uniform State laws, for example, has always been open and encouraged input, while not scuttling proposals except in the small number of cases where there has been legitimate controversy and difference of opinion.

The U.S. Trade Representative's statement also affirms that there will be extra-national arbitration tribunals, without clarifying how those tribunals would in fact be chosen or operate, a matter of great concern given the longstanding history of arbitration tribunal unfairness in domestic contexts:
Investor-state arbitration is designed to provide a fair, neutral platform to resolve disputes. The arbitration rules applied by tribunals under our agreements require that each arbitrator be independent and impartial. These rules permit either party in a dispute to request the disqualification of an arbitrator and the appointment of a new arbitrator if necessary to ensure the independence and impartiality of all tribunal members.
A process for selecting a tribunal to decide very important issues is no substitute for actual existing tribunals with a long track record of wisely resolve disputes in a transparent and fair manner.  Courts with facially fair rules can often be unfair in practice.

It is also notable that administrative negotiating positions in the process, for example, in the case of health care intellectual property protections, have repeatedly appeared to have been dictated by controversy arising from illegal leaks of negotiation materials leading to public outcry.  This is no way to run a fair and public process.  We shouldn't have to rely on Wikileaks to get reliable information about our own country's trade negotiations.

A Scope That Extends Far Beyond Trade To Domestic Economic Policy Of Unknown Content

The other is substance oriented. Rather than merely reducing tariffs and quotas, the TPP imposes substantive economic regulatory stances in a wide range of areas from monetary policy, to labor and environmental regulations, to intellectual property, and more, and appears to vest the ability to order national governments to change their current regulations to super-national arbitration bodies chosen in ways that are not disclosed.

This is a huge amount of substantive economic policy to put in stone, at home and abroad, without full disclosure and democratic participation in the process of making it, and the groups involved in the drafting process don't leave the general public with good cause to believe that those substantive choices are ones that they would agree with, on average.

For example, the TPP appears to favor very strong intellectual property regimes, when the emerging consensus is that the economy would be better off in many circumstances if we moved in the other direction and weakened excessively harsh intellectual property laws.  Intellectual property laws are also often used in Asia as tools to prevent free access to ideas and to suppress political dissent.

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