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In a recent letter to U.S. Trade Representative Michael Froman, independent Senator Bernie Sanders of Vermont announced that he finds it “incomprehensible” that negotiating texts for the Trans-Pacific Partnership (TPP) have not been made public. What are the facts on these supposedly “secret” trade negotiations?
In the case of the TPP, the reality is more prosaic — but still exciting. 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 simple. 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 $21.6 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 $124 billion by 2025, generating 700,000 new American jobs.
Still, it’s no surprise that debate has arisen over the best path to reach the goal of the TPP. The latest example is Senator Sanders’s letter lamenting the manner in which he says the negotiations are being conducted.
In fact, as U.S. Trade Representative 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.”
More broadly, 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, trade negotiators need to protect the confidentiality of their key texts.
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.
The courts and even American history lend support for maintaining the confidentiality of international negotiations. On June 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit ruled that USTR may withhold classified papers prepared during trade negotiations.
The court said even revealing positions that the U.S. took in the past “could limit the flexibility of U.S. negotiators” in the future. It 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.”
Despite these practical constraints, 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 private-sector 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.
Nor do only business representatives participate as trade advisors: Nearly half 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?
Finally, while no one should want to share the U.S. playbook for these negotiations with foreign governments, there’s no shortage of game tape. All of America’s current trade agreements are online, and Congress will only vote on the TPP once legislators and the public are given ample time to review a full, final text.
As for Senator Sanders, he will have an additional opportunity to weigh in: The forthcoming debate over Trade Promotion Authority (TPA).
The whole point of TPA is to allow Congress to set negotiating objectives for trade agreements and to ensure effective legislative-executive consultation during negotiations. In fact, a TPA bill introduced a year ago was titled the “Bipartisan Congressional Trade Priorities Act,” underscoring that this is above all an opportunity for legislators to put their imprint on trade 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. From President Washington to the contemporary football fan, Americans can generally see that.