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In a breathless op-ed in The New York Times, Ohio State assistant law professor Margot E. Kaminski makes her position immediately clear in the headline: “Don’t Keep the Trans-Pacific Partnership Talks Secret.” Unfortunately, her accusations include numerous instances of misunderstanding and misdirection.
Before digging into Kaminski’s charges, let’s get some context. The stakes in the Trans-Pacific Partnership (TPP) negotiations are indeed high — and the potential benefits for American workers, farmers and businesses substantial. The United States and 11 other Pacific Rim nations are pursuing a bold new trade agreement that promises to boost growth and job creation.
The case for the TPP is straightforward. As U.S. companies scour the globe for customers with money to spend, the Asia-Pacific region stands out. According to the IMF, the world economy will grow by more than $20 trillion over the next five years, and nearly half of that growth will be in Asia.
Trade agreements such as the TPP tear down the tariffs and other barriers that foreign governments erect to shut out U.S. goods and services. A study by the highly regarded Peterson Institute for International Economics has estimated the TPP could boost U.S. exports by more than $120 billion by 2025.
Still, it’s no surprise that debate has arisen over the best path to reach the goal of the TPP. Kaminski’s op-ed laments the manner in which she says the negotiations are being conducted. She writes:
The level of secrecy employed by the Office of the United States Trade Representative is not typical of how most international agreements are negotiated.
This is entirely false. American history shows that maintaining the confidentiality of international negotiations has been a bipartisan priority for more than two centuries. In a 2013 ruling that supported the administration’s right to withhold classified papers prepared during trade negotiations, the U.S. Court of Appeals for the District of Columbia Circuit cited President George Washington, who refused a 1796 request for a copy of instructions and other documents provided to the U.S. minister who negotiated a treaty with King George III. Washington wrote:
The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions, which may have been proposed or contemplated ... might have a pernicious influence on future negotiations.
Indeed, calls to make public these confidential negotiating texts are misguided, and they are certainly not in the national interest. Just as a football coach would never share his playbook with the opposing team, disclosure of negotiating texts would risk giving foreign governments a roadmap to U.S. sensitivities and “red lines” that could be used to our disadvantage. It could produce a weaker agreement that isn’t in the public interest at all — at significant cost to American workers and companies.
Kaminski further charges:
It [secrecy] creates a funnel where powerful interests congregate, absent the checks, balances and necessary hurdles of the democratic process.
On the contrary, the U.S. system of government based on separation of powers — particularly through procedures laid out in Trade Promotion Authority (TPA) — applies strong checks and balances to trade negotiations.
As we’ve laid out in detail elsewhere, TPA makes these checks and balances even more explicit:
TPA is premised on the notion that the executive and legislative branches of the federal government should work together on trade. The Constitution gives Congress authority to regulate international commerce, but it gives the president authority to negotiate with foreign governments.
TPA directs Congress to set negotiating objectives for trade agreements and requires the executive branch to engage in close consultations with legislators throughout the course of negotiations.
In keeping with these practices, U.S. Trade Representative Michael Froman has explained in writing to queries from the Senate:
USTR engages on a daily basis with Members of Congress and Senators and their staffs, not only to ensure the input of the people’s representatives into every negotiating position, but also to keep you informed of the substance and progress of the talks. That engagement includes substantive briefings, in person discussion with negotiators, and the sharing of U.S. proposals and negotiating text.
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 fact, USTR has worked tirelessly to disclose as much information as possible about the TPP talks. Thousands of representatives of civil society, consumer, labor, environmental and business groups have engaged in an ongoing dialogue with negotiators. Groups that opposed the TPP from the day it was first proposed are regular participants in these stakeholder meetings and provide ample written input.
Between negotiating sessions, consultations continue. In addition to its general open door policy, USTR relies on 640 advisors who serve on 16 Industry Trade Advisory Committees as mandated by Congress.
By statute, these committees must “be representative of all industry, labor, agricultural, or service interests (including small business interests).” It makes sense that those who trade are consulted on the substance of trade negotiations. Similar committees address agriculture, labor and environmental issues.
However, nearly half of these advisors come from outside the business community. Top officials of the AFL-CIO, Teamsters, United Steelworkers, and Environmental Defense Fund serve on the President’s Advisory Committee on Trade Policy and Negotiations, which provides executive-level guidance to USTR and the White House. Does anyone think the Steelworkers’ Leo Gerard and the Teamsters’ James Hoffa sit quietly in these committee meetings?
As for the risible charge that “the substance of American free trade agreements does not represent truly national interests,” we’ve provided a detailed, factual account of the impressive benefits of these agreements for American workers, farmers and companies in our recent report, The Open Door of Trade.
The initial version of an agreement projected by the government to affect millions of Americans will remain a secret until long after meaningful public debate is possible.
This is just wrong. The text of U.S. trade agreements is made public shortly after negotiations are concluded, and well before congressional consideration. They are all made available in their entirety on the website of the Office of the U.S. Trade Representative.
Kaminski further charges:
Secrecy also delegitimizes trade agreements: The process has been internationally criticized as undemocratic.
Kaminski managed to find one example of a trade agreement rejected by a legislature. But according to the World Trade Organization (WTO), 398 bilateral or regional trade agreements are in force around the globe today, and this number has more than doubled over the past decade. Meanwhile, the United States has just 14 such trade agreements covering trade with 20 countries.
If we stand still on trade, we fall behind. If the United States fails to negotiate new market-opening trade agreements, American workers, farmers and companies will be at a disadvantage to their competitors elsewhere. If we don’t seize these opportunities, our competitors surely will.
From President Washington to the present day, American citizens and our elected leaders have generally understood the need — within limits — for confidentiality in international negotiations. At the end of the day, public disclosure of confidential negotiating texts would mean a weaker hand for U.S. officials at the negotiating table.