House Speaker Paul Ryan Demands TPP Be Renegotiated; Neglects To Mention It Was His Bill That Makes That Impossible

from the is-that-your-own-petard-you're-hoisted-on? dept

House Speaker Paul Ryan is apparently none too pleased about the Trans Pacific Partnership (TPP) agreement. We're not very pleased with it either and think large sections of it should be dumped -- but for very different reasons than Ryan I imagine. Ryan is saying that there aren't enough votes in the House to ratify the TPP, while suggesting that the USTR has to go back and renegotiate the deal in an interview he gave on Fox News:

When asked where TPP stands now, Ryan said, “Right now I don’t see the votes there for TPP, because I think the administration negotiated an agreement that has some problems in it, has some flaws in it, and they’re going to have to figure those out and work those out if they want to get the votes to pass it through Congress, which I just don’t see the votes there right now.”

Ryan said TPP is not dead, “but right now they have a lot of work to do. If we brought it to the floor today, it wouldn’t pass.”

And then when the host, Maria Baritoromo challenges him on this, pointing out that if they don't have the votes now, how will they have the votes later, he raises a bunch of issues (including intellectual property -- which probably means he wants those provisions to be even worse and more ridiculous than they are now) and basically says the USTR needs to go back to the negotiating table:

I won’t go into all the details, but cross-border data flows, dairy, there are biologics, intellectual property rights protections. I can go into all the details if you’d like, but the point I’m trying to make is I don’t see the votes for this agreement now. That’s why I think they need to go back and work on this agreement.

Go back and work on this agreement? Oh really? Now, this is the same Paul Ryan who (as he mentions in the interview) was the driving force behind the so-called fast track or "Trade Promotion Authority." Though Ryan totally misrepresents what that means. He claims that the TPA gave the USTR "the ability to go negotiate trade agreements." That's hilariously not true. After all, the USTR has been negotiating the TPP for more than half a decade at this point, and only got Trade Promotion Authority in June. All Trade Promotion Authority REALLY does is ties Congress's hands so that it can no longer ask the USTR to go back and renegotiate sections, because the whole point of the TPA is that it limits Congressional authority to a simple yes or no vote -- rather than allowing it to actually debate and challenge specific aspects of the agreement.

And, of course, back when that push was on, Ryan was all over the place, insisting that Congress needed to pass Trade Promotion Authority to make sure that the USTR would follow Congress's instructions on the deal and to make sure everyone knew that the US government "spoke with one voice." Here's what Paul Ryan was saying a few months ago:

TPA shows our trading partners that the U.S. government speaks with one voice, putting our country in the strongest negotiating position possible, and it lets these countries know that we are open for business. Additionally, TPA gives us the opportunity to write the rules of any deal before entering into a trade agreement, and it mandates that no provision of any trade agreement can conflict with existing American laws, make changes to our immigration policy, impose new environmental regulations on our economy, infringe on our 2nd Amendment rights, or undermine the sovereignty of the American people in any way. Completing any major trade agreement without TPA undermines the constitutional role of Congress over trade, and TPA would ensure that Congress is an equal partner in the negotiations.

Of course, almost none of that is accurate. All TPA did was take away Congress's "constitutional role" in trade, by giving it over to the executive branch. I still find it hilarious that Congressional Republicans, who claim to so hate executive power wielded by President Obama, were so eager to give up their own powers to enter into trade agreements, and to hand that power entirely over to the executive branch, with a mere up or down vote.

So now it seems particularly ridiculous for Speaker Ryan, of all people, to be claiming that we need to go back and renegotiate the deal. We can't do that -- and the reason we can't do that is because of Ryan's own Trade Promotion Authority effort, which he insisted was necessary so that the final deal would reflect the wishes of Congress.

In another push for Trade Promotion Authority, Paul Ryan said the following:

With so much at stake, if the House rejects TPA, it will announce to the world that America is unreliable. But if the House approves TPA, it will underscore America’s commitment to a successful negotiation and reassert America’s leading role in world affairs. After years of indecision, no puffed-up posture can enhance America’s stature. Only concrete actions can rebuild U.S. credibility. And number one on the to-do list is establishing TPA.

The whole basis of TPA was that once the USTR concluded a deal, Congress couldn't nitpick it. That was Ryan's entire argument. And now that the deal is done... he wants to nitpick it?

Filed Under: fast track authority, negotiations, paul ryan, tpa, tpp, trade promotion authority, ustr

Congress Finally Releases Fast Track Trade Bill, And It's A Mess

from the why-do-republicans-want-to-do-this? dept

For the past few months there have been rumors every few weeks that Congress was finally going to push out a "fast track" or "trade promotion authority" bill. As we've explained, these bills are Congress giving up their Constitutional right to regulate international trade, and handing the power over the USTR, a part of the executive branch. While some supporters of this argue that it actually gives Congress more power, by laying out the conditions of a trade deal it will approve, that's ridiculous. That might be true if fast track authority were granted prior to a deal being done, but with the TPP and TTIP pretty far along, it's clearly not true. Either way, despite massive opposition from the President's own party, an agreement has been reached between Senator Hatch and Senator Wyden and a trade promotion bill has been released.

Back in February, we presented a simple litmus test concerning whether or not any such effort would actually be reasonable on intellectual property issues: would the text of the bill concerning intellectual property be any different than the last fast track authority bill from 2002 (or an attempt to update it in 2014). Both of those bills had nearly verbatim text. And... as we feared, so does this new bill. Given just how much the internet has changed since 2002, it is simply inconceivable to suggest that the same intellectual property rules that made sense then would continue to make sense now. In other words, despite the involvement of Senator Wyden, it appears that little has been done here to make it clear to the USTR that bad IP rules in the TPP or TTIP agreement are unacceptable. That's a disappointment. Here are the key provisions on intellectual property. Note that they are basically all about enforcement (i.e., protectionism) rather than the free flow of information (which is what you'd expect a trade deal to be about).

providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade;

preventing or eliminating discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights;

ensuring that standards of protection and enforcement keep pace with technological developments, and in particular ensuring that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works;

providing strong enforcement of intellectual property rights, including through accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms; and

preventing or eliminating government involvement in the violation of intellectual property rights, including cyber theft and piracy;

These are basically word for word the same from 2002. In other words, despite over a decade of seeing how the USTR has used trade deals to browbeat other countries into bad intellectual property laws, this new trade promotion authority is saying "go ahead and continue doing just that, no matter what harm it may do to the internet and all of the economic growth it creates."

Unlike some who are totally against any trade deals, I believe there are ways in which increasing actual free trade can be helpful. I had held out hope that the new trade promotion agreement would be more reasonable than what we'd seen in the past. But just looking at the intellectual property section alone, and the fact that it has remained unchanged since the 2002 version -- despite over a decade of seeing how bad IP policy can hurt internet innovation and economic growth -- suggests that this TPA agreement continues the mistakes of the past, rather than fixes them. That's unfortunate.

And so, now comes a very, very weird fight in Congress. With nearly all Democrats opposed to this bill even including the surprise change in position by Senator Chuck Schumer, we'll have a situation where Congressional Republicans try and convince their colleagues to give President Obama more power, by removing the Constitutional authority from Congress, while Congressional Democrats push back against giving their own President that power. It's a really weird fight in oh so many ways.

Filed Under: chuck schumer, fast track, fast track authority, intellectual property, orrin hatch, ron wyden, tafta, trade, trade agreements, trade promotion, trade promotion authority, ttip, ttp, ustr

The White House Has Gone Full Doublespeak On Fast Track And The TPP

from the up-is-down,-black-is-white dept

Sen. Ron Wyden and Sen. Orrin Hatch are now in a stand-off over a bill that would put secretive trade deals like the Trans-Pacific Partnership (TPP) agreement on the Fast Track to passage through Congress. The White House meanwhile, has intensified their propaganda campaign, going so far as to mislead the public about how trade deals—like the TPP and its counterpart, the Transatlantic Trade and Investment Partnership (TTIP)—will effect the Internet and users' rights. They are creating videos, writing several blog posts, and then this week, even sent out a letter from an "online small business owner" to everyone on the White House's massive email list, to further misinform the public about Fast Track.

In a blog post published this week, the White House flat out uses doublespeak to tout the benefits of the TPP, even going so far as to claim that without these new trade agreements, "there would be no rules protecting American invention, artistic creativity, and research". That is pure bogus, much like the other lies the White House has been recently saying about its trade policies. Let's look at the four main myths they have been saying to sell lawmakers and the public on Fast Track for the TPP.

Myth #1: TPP Is Good for the Internet

First, there are the claims that this agreement will create "stronger protections of a free and open Internet". As we know from previous leaks of the TPP's Intellectual Property chapter, the complete opposite is true. Most of all, the TPP's ISP liability provisions could create greater incentives for Internet and content providers to block and filter content, or even monitor their users in the name of copyright enforcement. What they believe are efforts toward protecting the future of the Internet are provisions they're advocating for in this and other secret agreements on the "free flow of information". In short, these are policies aimed at subverting data localization laws.

Such an obligation could be a good or a bad thing, depending on what kind of impact it could have on national censorship, or consumer protections for personal data. It's a complicated issue without an easy solution—which is exactly why this should not be decided through secretive trade negotiations. These "free flow of information" rules have likely been lobbied for by major tech companies, which do not want laws to restrict them on how they deal with users' data. It is dishonest to say that what these tech companies can do with people's data is good for all users and the Internet at large.

Myth #2: Fast Track Would Strengthen Congressional Oversight

The second, oft-repeated claim is that Fast Track would strengthen congressional oversight—which is again not true. The U.S. Trade Representative has made this claim throughout the past couple months, including at a Senate Finance Committee hearing in January when he said:

TPA puts Congress in the driver’s seat to define our negotiating objectives and strengthens Congressional oversight by requiring consultations and transparency throughout the negotiating process.

Maybe we could believe this if the White House had fought for Fast Track before delegates began negotiating the TPP and TTIP. Maybe it could also have been true if that bill had ensured that Congress members had easy access to the text and kept a close leash on the White House throughout the process to ensure that the negotiating objectives they had outline were in fact being met in the deal. However, we know from the past several years of TPP negotiations, that Congress has largely been shut out of the process. Many members of Congress have spoken out about the White House's strict rules that have made it exceedingly difficult to influence or even see the terms of these trade deals.

The only way Fast Track could really put "Congress in the driver's seat" over trade policy would be if it fully addressed the lack of congressional oversight over the TPP and TTIP thus far. Lawmakers should be able to hold unlimited debate over the policies being proposed in these deals, and if it comes to it, to amend their provisions. It would be meaningless if the new Fast Track bill enabled more congressional oversight, but if it did not apply to agreements that are ongoing or almost completed.

Myth #3: Small Online Businesses Would Benefit from Fast Track

Then the third misleading claim is that Fast Track would help small businesses. Their repetition of this has become louder amid increasing public awareness that the TPP has primarily been driven by major corporations. What may be good for established multinational companies could also benefit certain small online businesses as well. The White House says that tariffs are hindering small online businesses from selling their products abroad, but research has shown that the kinds of traditional trade barriers, like tariffs, that past trade agreements were negotiated to address are already close to non-existent. Therefore it is unclear what other kind of benefits online businesses would see from the TPP.

Even if there were some benefits, there are many more ways that the TPP could harm small Internet-based companies. The TPP's copyright provisions could lead to policies where ISPs would be forced to implement costly systems to oversee all users' activities and process each takedown notice they receive. They could also discourage investment in new innovative start-ups, even those that plan to "play by the rules", due to the risk that companies would have to sink significant resources into legal defenses against copyright holders, or face heavy deterrent penalties for infringement established by the TPP.

Myth #4: TPP and Other Secret Trade Deals Are a National Security Issue

The last, and most confounding of the White House's assertions is that the TPP and TTIP are an "integral part" of the United States' national security strategy, because its "global strategic interests are intimately linked with [its] broader economic interests." As we have seen with the U.S. government's expansive surveillance regime, "national security" is often invoked for policies even if they directly undermine our civil liberties. It is hard to argue with the administration whether the TPP and TTIP are in fact in the United States' economic or strategic interests, since only they are allowed to see the entire contents of these agreements. Either way, it seems like a huge stretch to say that we can trust the White House and major corporate representatives to determine, in secret, what is in fact good digital policy for the country and the world. We may be hearing this line more and more in the coming weeks as the White House becomes more desperate to legitimize the need for Fast Track to pass the TPP and TTIP.

Conclusion

The fact that the White House has resorted to distorting the truth about its trade policies is enough to demonstrate how little the administration values honesty and transparency in policy making, and how much the public stands to lose from these agreements negotiated in secret. The more they try and espouse the potential gains from Fast Track—while the trade agreements this legislation would advance remain secret—the more reason we ought to be skeptical. If the TPP is so great and if Fast Track would in fact enable more democratic oversight, why are the contents of either of them still not public?

Reposted from the Electronic Frontier Foundation Deeplinks blog

Filed Under: administration, copyright, fast track, fast track authority, intellectual property, internet freedom, tafta, tpp, trade, trade promotion authority, ttip, ustr, white house

Trade Agreements Should Protect An Open Internet, Not Kill It

from the fighting-for-the-future,-or-the-past? dept

For a few years now, we've been writing about the Trans Pacific Partnership (TPP) agreement, and how we're quite concerned by many aspects of it. In particular, we're quite concerned about the intellectual property provisions -- which leaks have shown are tremendously problematic -- as well as the corporate sovereignty provisions, which negotiators like to call "investor state dispute settlement" (ISDS) because it sounds so boring. Of course, the biggest concern of all is that these deals are negotiated in total secrecy, with the various negotiators refusing to reveal the agreed upon text until it's a done deal and the public is unable to comment on it or suggest changes and fixes.

In the fight over the TPP (and the other big trade agreement, with Europe, called the TTIP or TAFTA), an important side issue is over so-called "fast track" authority, or (more officially) "trade promotion authority." This is where Congress basically tells the USTR that it will only take a single "yes/no" vote on whatever the USTR comes back with, rather than delving into the details of the trade agreement and challenging specific aspects of it. In fact, there's an argument that, without fast track authority, the USTR can't really commit the US to anything. What's really odd is that, in a Republican-controlled Congress that seems to want to fight President Obama on just about anything that even has a whiff of the executive branch having more power, it's those Republicans in Congress who are pushing strongly for fast track authority -- effectively giving up their (Constitutionally-mandated) power to regulate international trade.

Either way, it is strongly expected that Congress will introduce some sort of Trade Promotion Authority bill in the coming days, even as the key Democrat involved in this issue, Senator Ron Wyden, has pushed back on hearings planned by Senator Orrin Hatch for later this week.

To try to justify giving up Congress's own power to the executive branch, defenders of trade promotion authority, such as Paul Ryan, claim that it's actually Congress "asserting its authority in the early stages of a trade negotiation." That's clearly bullshit, since TPP is in its final stages, after being negotiated for many years. The other claim is that because of the way trade promotion authority works, it involves a bill that tells the USTR what needs to be included in any agreement. Again, while that is used to make it look like it's Congress presenting its desires to the USTR, which has to follow it, that would only make sense if TPA was offered at the beginning -- not the end -- of the negotiations.

Even Paul Krugman, who was initially a supporter of the TPP eventually changed his tune. Most recently, in response to President Obama's latest call for trade promotion authority, Krugman referred to it as suspicious nonsense. He supports trade deals, but "strongly suspects" there's "bad stuff hidden in the fine print." Of course, that wouldn't be such a concern if the USTR actually released the drafts it's pitching, but that apparently will never happen.

And that brings us (finally) to the question of what will be in the eventual push for fast track authority, that is expected to come out any day now. Daniel Sepulveda, who is sort of the US's "ambassador to the internet," just gave a speech talking about how fast track can help protect the open internet. He notes, rightly, that it's important to "[preserve] the free flow of information, to protect the internet's potential as the world's engine for future growth." He further points out that "the increase in Internet use creates significant economic potential." But, oddly, he claims that fast track can somehow guarantee this -- when previous attempts at fast track have shown no such thing. Here's Sepulveda:

The Obama Administration is working to unlock the promise of e-commerce, keep the Internet free and open, promote competitive access for telecommunications suppliers, and set digital trade rules-of-the-road by negotiating new trade agreements. Trade Promotion Authority legislation and the pending trade agreements we expect Congress to consider over the coming months and years will provide that kind of protection. These agreements aim to ensure that the free flow of information and data are the default setting for nations. This will preserve the architecture that has empowered the Internet and global communications to fuel economic growth at home and abroad. It is in our interest, across parties and ideology, to ensure we move forward and approve TPA and the pending agreements for many reasons, but promoting the preservation and growth of global communications and the open Internet is one of the strongest.

I agree that preserving an open internet is important -- and I wish that our trade deals did exactly that, but they don't. In particular, the intellectual property sections of various trade agreements have not been focused on preserving an open internet, but on shutting it down. We've been asking for nearly a decade how protectionist policies aimed at propping up a legacy industry's obsolete business models is "promoting free trade." It seems like the opposite.

And, in fact, if you look at the version of the "fast track" legislation that was introduced in the last Congress, you'll notice that the section it has on intellectual property is almost entirely focused on ratcheting up enforcement and protection. It only talks about intellectual property enforcement, including "meeting enforcement obligations," and "providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property." It includes sections that are all about protectionism and enforcement, rather than "free trade."

Providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade;

Preventing or eliminating discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights;

Ensuring that standards of protection and enforcement keep pace with technological developments, and in particular ensuring that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works;

Providing strong enforcement of intellectual property rights, including through accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms.

In fact, if you look, these clauses are almost verbatim from the last time Congress granted trade promotion authority, back in 2002, with the 2002 Trade Act. Check out the section in that law about intellectual property and you may notice a rather striking similarity to what was in the last Congress's attempt, put together by Senator Orrin Hatch, who's leading the charge this time around as well:

Providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property;

Preventing or eliminating discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights;

Ensuring that standards of protection and enforcement keep pace with technological developments, and in particular ensuring that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works; and

Providing strong enforcement of intellectual property rights, including through accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms;

Look familiar? Other than the inclusion of the phrase "including in a manner that facilitates legitimate digital trade," they are identical. And yet, think about just how much the world has changed since 2002 -- and how important we know the internet is, and how much we've learned about how intellectual property law can be widely abused to harm or break the open internet.

Since then, we've seen the DMCA used repeatedly to stifle free expression. We've seen Russia using copyright law to stifle political dissent. We've seen how plans to use copyright law to block access to certain sites enable an architecture of censorship. We've seen news publications seized and popular digital storage lockers shut down completely via copyright claims.

Given all that, it's difficult to see how the US can actually be serious about protecting an open and free internet, if it's going to continue to use trade agreements like the TPP -- to push for greater tools like those described above, that simply put the ability to censor the internet, and to take down innovative services, into trade agreements. If, when the eventual trade promotion authority bill comes out, it includes this same language all over again, you can be sure that the TPP is not about protecting an open internet, but rather about protecting a few legacy businesses, and enabling government to shut down and stop the open internet.

I'm a believer in free trade and open borders. I know that some are protesting agreements like the TPP because they don't like free trade itself, and think it's problematic. That's not my concern. My concern is that what's being done in the name of free trade, and in the name of an open internet, is anything but that. It's about protecting the past, not investing in and enabling the future. We all have our concerns about what's in the various sections of the TPP (which could be solved today if the USTR just released the damn documents), but our first hint of what's really going on here will be evident by how the "intellectual property" section of the expected TPA bill is written. If it's just repeating the same misleading lines from 2002, you can be sure that the TPP is just as big a problem as expected.

Filed Under: corporate sovereignty, daniel sepulveda, fast track, fast track authority, freedom of expression, intellectual property, open internet, orrin hatch, ron wyden, tpp, trade promotion authority

Now In Charge Of Congress, GOP Plans To Give Up Its Own Constitutional Powers To The Obama Administration

from the say-what-now? dept

As you've probably heard, the Republicans decisively took control over Congress in the election on Tuesday, and are now strategizing on exactly what plan they'll choose to try not to mess things up too badly by the time the 2016 elections come around. The Washington Post has a short segment on the "quick votes" the GOP is planning for January to show that rather than blocking everything, it can actually pass some stuff -- including "fast track" legislation on trade agreements:

With the 2016 presidential campaign already looming large, McConnell (Ky.) and Boehner (Ohio) are both eager to shed the party’s image as an unruly collection of obstructionists and far-right ideologues.

The remedy, they have decided: Act quickly to send President Obama bills with bipartisan support to fast-track international trade agreements, repeal an unpopular tax on medical devices and approve the Keystone XL pipeline.

We've talked about this "Fast Track" authority for years (it's also referred to as "Trade Promotion Authority"). The issue is that, under the Constitution, Congress and not the executive branch, has the sole power "to regulate commerce with foreign nations." The executive branch has always been able to negotiate agreements, but it's Congress that has the power to regulate. "Fast Track" authority or Trade Promotion Authority is effectively Congress handing that right over to the executive branch, by saying that the only thing it can do when brought a trade agreement is vote up or down on the whole thing, rather than actually look at the details of the agreement and send the USTR back to fix the problematic parts.

You can understand why the USTR and the administration want the fast track to go, because it means they can actually promise things during negotiations that are more difficult to promise without that power. But it does seem very, very odd that a Republican Congress that seems to constantly complain about too much power in the executive branch, seems to have no problem whatsoever abdicating its Constitutional powers to that very same executive branch on major trade agreements that could reshape regulations worldwide.

Part of the problem, of course, is that people have been told that this is about "free trade" agreements -- and Republicans claim to be in support of free trade. But that's wrong. The big agreements, like the TPP and TTIP/TAFTA are not about "free trade" for the most part. Most tariff barriers have been chipped away for years. These agreements are about regulations and locking in certain regulations to limit the sovereignty of various nations to pass their own regulations. It's just protectionism in a different colored coat, dressed up to look like free trade -- complete with a dollop of extra sovereignty for corporations. Thus, it seems very odd that a Republican controlled Congress -- one that insists it's all about the Constitution -- has decided that it's first order of business is to give up one of Congress' main constitutional powers to an administration controlled by the opposing party.

Filed Under: congress, fast track, fast track authority, gop, republicans, tafta, tpp, trade agreements, trade promotion authority, ttip

USTR Claims 1,200 Meetings With Congress Just As Good As Actual Transparency

from the politicians:-the-new-common-man dept

USTR Michael Froman is trying to push the illusion that the TPP negotiations are transparent. In the past, various USTR spokespeople have made similar assertions, one of which is claiming that Congress, being so-called "representatives" of the public, are a perfectly suitable proxy for actual transparency. This ignores the fact that, while Congress may be able to view the TPP documents, it can't actually make copies or take notes or even pass it along to staffers who may have more expertise to offer -- to say nothing of the public all the way at the end of the food chain.

Of course, key special interest groups and key stakeholders have full access through a login to the USTR website, which allows them to view the documents at any time (and presumably take notes, disseminate, etc.), rather than be limited to asking the USTR for permission to view a trade agreement--one that not only affects the US and the US public, but several other countries around the world. Businesses that stand to benefit from the agreement have better access to both the documents and our representatives, and yet, the USTR continues to protest that it's open and transparent.

Here's the latest "see how open we are" statement from USTR Froman, the same guy who once touted the transparency of the trade negotiations from the comfort of a Hollywood studio.

“As we pursue this agenda, we will continue to consult with Congress and seek input from a wide range of advisors, stakeholders and the public. We have held over 1,200 meetings with Congress about TPP alone – and that doesn’t include the meetings we’ve had on T-TIP, TPA, AGOA or other trade initiatives,” he said. “Our Congressional partners preview our proposals and give us critical feedback every step of the way. We also ensure that any Member of Congress can review the negotiating text and has the opportunity to receive detailed briefings by our negotiators.”

Once again, the USTR is claiming secrecy-shrouded "meetings" with Congress to be synonymous with "seeking input from… the public." This isn't even remotely the same thing. Members of Congress aren't free to disseminate the TPP documents or take notes, which ensures nothing substantial will be passed on to the public. Froman's statement takes the public for idiots (something the USTR has done before), expecting them to believe their representatives will hear their voices over the crosstalk of legacy industries and special interest groups.

And the public still has no access, outside of leaked documents. Looking beyond the US-centric view, the stakeholders and public in other countries aren't getting the same level of "transparency." Sure, the USTR may be wearing down the local pols with incessant "meetings," but there's little to indicate there's been as many meetings with foreign officials. There's nearly 40% of the world's GDP at stake here (according to the USTR's numbers) and yet, only a very minute percentage of the world itself has any access to the TPP's documents and negotiations.

As can be expected, Froman listed IP as the top priority for worldwide trade agreements.

“The United States is an innovative economy, and the Obama Administration is committed to protecting intellectual property (IP), which is vital to promoting and encouraging innovation and creativity,” he said. “Millions of American jobs rely on IP, and we will continue to use our trade agenda in 2014 to defend the IP rights of our creators and innovators while supporting the freedom of the Internet, encouraging the free flow of information across the digital world, and ensuring access to medicines, particularly by the poor in less developed economies.”

But that's all a lie, especially the last part about "ensuring access to medicines." The TPP is fighting cheap medicine on several fronts. It contains provisions that make it harder for local companies to produce generics by resetting the patent clock when the drug is introduced to foreign markets. The USTR has also directly told other countries that cheap, affordable medical care/products "fail to recognize the value" of overpriced US offerings.

The USTR isn't interested in the free flow of information related to the TPP negotiations, so it's highly unlikely it has any interest in "encouraging the free flow of information across the digital world." The phrase "supporting the freedom of the internet" doesn't sound right coming from an entity that was one of ACTA's biggest supporters, and one backed by some of SOPA's biggest supporters.

It's a colossal joke, this supposed "transparency" of the USTR and TPP. It smells of old money being carried through revolving doors. When it comes to super-secret negotiations involving legacy players and massive corporations, Congress is hardly a reliable stand-in for the US public.

Filed Under: fast track authority, michael forman, tafta, tpp, trade promotion authority, transparency, ttip, ustr

USTR Refuses To Show Up For Senate Hearing On Fast Track

from the how's-that-for-working-closely-with-congress dept

One of the biggest concerns that we've heard from Congress about the USTR's desire for fast track authority is the fact that the USTR has been positively dismissive of Congressional attempts at transparency. While the USTR pretends that getting fast track actually means great cooperation with Congress, apparently USTR boss Michael Froman decided to bend over and tell Congress to kiss his ass by not even bothering to show up for the Senate's hearing on fast track authority.

Several committee members said they were puzzled and disappointed that USTR Michael Froman passed on an opportunity to convince some skeptical lawmakers they need to establish Fast Track authority for President Barack Obama’s priority Trans-Pacific Partnership (TPP) agreement.

“I wish they were here,” said Portman, a member of the committee and a former US trade representative under President George W. Bush.  “It’s important.”

This shows the kind of disdain that the USTR appears to hold Congress in. Congress remains a mere nuisance in the USTR's ongoing efforts to put forth the best agreement possible for a bunch of crony friends who will soon be offering USTR staffers new jobs as lobbyists.

If the USTR can't even bother to show up to argue for fast track, while arguing how important it is, perhaps it suggests that Congress really ought not to give the USTR that kind of power. So far, the USTR has not been transparent. It has directly lied, repeatedly, to the American public about what it's trying to do, and when given the chance to explain itself to the Senate committee in charge of the very bill it wants to give it more power over the TPP and TTIP/TAFTA, it blows it off.

Filed Under: congress, fast track authority, international trade, michael froman, oversight, senate, tpp, trade promotion authority

Many In Congress Opposed To Fast Track Authority: An Obsolete Concept For An Obsolete Trade Negotiation

from the get-modern dept

We just noted how Congress had introduced a bill to give up its own Constitutional powers, abdicating them to the administration and the USTR to give it the full power to commit the US to massive trade agreements like the TPP and TAFTA/TTIP, and blocking Congress' ability to oversee the process and make sure all interests are represented. Instead, if fast track authority is granted, Congress will only be able to give a "yes or no" vote on the agreements, and once the USTR comes back with an agreement, the pressure will be immense to vote yes. Thankfully, many in Congress are already signalling that they're not at all comfortable with abdicating their responsibilities. On the House side, Reps. Rosa Delauro, Louise Slaughter and George Miller put out a statement decrying the inevitable end result of this process, specifically highlighting the fact that these modern trade agreements cover a hell of a lot more than "trade."

Fast Track procedures would allow the President to sign a potential Trans-Pacific Partnership (TPP) and other free trade agreements before Congress votes to approve them even though the Constitution gives Congress exclusive authority over trade. The process would also guarantee the pacts could come to the floor without giving Members of Congress the opportunity to amend them despite the fact these agreements will include binding obligations that touch upon a wide swath of non-trade policy matters under the authority of Congress.

“For too long, bad trade deals have allowed corporations to ship good American jobs overseas, and wages, benefits, workplace protections and quality of life have all declined as a result,” DeLauro, Miller and Slaughter said in a joint statement. “That is why there is strong bipartisan opposition to enabling the Executive Branch to ram through far-reaching, secretly negotiated trade deals like the TPP that extend well beyond traditional trade matters.

As their statement also notes, "Our constituents did not send us to Washington to ship their jobs overseas, and Congress will not be a rubber stamp for another flawed trade deal that will hang the middle class out to dry."

They're not the only ones in the House to be concerned. A number of other powerful House members are not at all happy about the proposal and looking to kill it or change it -- including Nancy Pelosi. Then there's also Rep. Sander Levin who has spoken out against fast track. As that article notes, without Levin's support, Fast Track may be in trouble.

An even stronger condemnation of the attempt comes from the Senate side, where Rep. Levin's younger brother, Senator Carl Levin debunks the talking point we've already been hearing from copyright maximalist lobbyists, that "fast track authority has been used for decades and it's no big deal." As Levin points out, in the past, fast track was used for very different kinds of trade agreements. Narrow ones that were actually about trade, not the kind of monstrosity like the TPP which has little to do with trade, and plenty to do with changing laws around the globe.

The 2002 TPA became utilized mostly in negotiating single nation trade agreements affecting a relatively small portion of our economy. What the U.S is now engaged in is negotiating major multi-party agreements, including with 11 Pacific nations and with the entire European Union, affecting a huge percentage of the U.S. and the global economy.

Levin further points out that without real transparency, any fast track authority should be a nonstarter:

USTR must make available to all Members of Congress and all staff with the necessary security clearance the text of the negotiations, including the proposals of our trading partners. We must also have a much more effective stakeholder advisory committee process than we do today so that the sectoral and functional advisory committees are representative of all industry, labor, agricultural, or services interests (including small business interests) in the sector or functional areas concerned. These private sector advisory committees must have access to the negotiating text. Finally, a new TPA will require USTR to publicly release summaries of its negotiating proposals and to provide opportunities for public comment.

As we noted in our original post, not a single Democrat was willing to co-sponsor the House version of the bill that their own President wants. And reports are suggesting that this may scuttle the whole thing, as Republicans begin to wonder why they're out there not only helping President Obama against his own party, but relinquishing Congress's own Constitutional authority in the process. It's good to see a large number of folks in Congress suddenly wondering why they should be giving up their oversight over international trade on an agreement so big.

Filed Under: carl levin, congress, fast track, fast track authority, george miller, louise slaughter, nancy pelosi, rosa delauro, sander levin, tpp, trade promotion authority, ustr

Does The Fast Track Authority Bill Guarantee That Corporate Sovereignty Will Be One-Sided And Unfair?

from the important-questions dept

Yesterday, Mike reported on the introduction of the "fast track authority" bill in the Senate, and pointed out some of its most troubling aspects. But it's a long document -- over 100 pages -- and hidden away within it are some other areas that raise important questions. Take, for example, Section 8, which concerns sovereignty:

No provision of any trade agreement entered into under section 3(b), nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States, any State of the United States, or any locality of the United States shall have effect.

Writing on the International Economic Law and Policy Blog, Simon Lester, a trade-policy analyst at the Cato Institute, asks:

Is this an assertion that no provision will be included in a trade agreement if such provision conflicts with U.S. law? Or does it mean that if there is a provision in a trade agreement that conflicts with U.S. law, that provision has no effect? Or something else entirely?

In the same section of the bill, there's another passage whose meaning is by no means clear:

Reports, including findings and recommendations, issued by dispute settlement panels convened pursuant to any trade agreement entered into under section 3(b) shall have no binding effect on the law of the United States, the Government of the United States, or the law or government of any State or locality of the United States.

Again, does that mean the rulings of corporate sovereignty (ISDS) tribunals won't be enforceable in the US, or simply that they don't create legal precedents? It's a crucially-important point, because the terms of this fast track authority will apply not only to TPP, but also to TAFTA/TTIP. And there, the European Commission has been making the following argument about the necessity of including ISDS in the transatlantic agreement (as reported by Australia's Inside Story):

The problem with scrapping ISDSs, according to the Commission, is that the US legal system is not set up to deal with international investment agreements. "Quite simply, TTIP cannot be enforced in US domestic courts," [European Commission spokesperson] Clancy says. "So, this is about ensuring [that] investors have the right to a certain amount of protection."

If the fast track authority clause quoted above does, indeed, undercut the entire ISDS mechanism, then foreign investors would be unable to enforce TTIP's investment measures according to the European Commission's analysis. However, assuming that's not the meaning of the bill, there's another problem. Among the "principal trade objectives" listed at the start of in the fast track authority bill, is "foreign investment", where we read:

Recognizing that United States law on the whole provides a high level of protection for investment, consistent with or greater than the level required by international law, the principal negotiating objectives of the United States regarding foreign investment are to reduce or eliminate artificial or trade distorting barriers to foreign investment, while ensuring that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States, and to secure for investors important rights comparable to those that would be available under United States legal principles and practice

It's interesting to note that the bill explicitly recognizes that US law provides "a high level of protection for investment", which naturally calls into question the supposed "need" for any extra corporate sovereignty in the form of ISDS. But more importantly, the fast track authority bill states that trade agreements must ensure that:

foreign investors in the United States are not accorded greater substantive rights with respect to investment

And yet that is precisely what ISDS in TAFTA/TTIP or TPP would do: in addition to the use of domestic courts in the US, foreign investors would have the option to take the US to independent corporate sovereignty tribunals. However, that would not possible for US investors in the US, since ISDS only applies to foreign investment.

So we are left with two possibilities. Either the fast track authority aims to nullify the ISDS chapter in TPP and TAFTA/TTIP by rendering tribunal rulings impossible to enforce, or it will allow foreign investors to use ISDS tribunals to obtain enforceable decisions, in which case they will have greater substantive rights than US investors. Either way, one side of the negotiations is going to get a really bad deal from the inclusion of corporate sovereignty provisions. That's yet another powerful reason to drop them entirely from both TPP and TAFTA/TTIP.

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Filed Under: corporate sovereignty, fast track authority, investor state dispute settlement, isds, tafta, tpp, trade promotion authority, ttip

The Lies The USTR Is Spreading About Fast Track Authority To Push TPP Through Congress

from the don't-buy-it dept

With the introduction of fast track authority (also known as "trade promotion authority") in Congress, by which Congress abdicates its constitutionally-granted sole power to regulate foreign commerce, the USTR (which gains that power) is out in force, spreading all sorts of lies about what this means. It's not exactly encouraging when the organization that has been hiding all the details of the TPP agreement for years is now trying to push it forward by directly lying to the American public. It's almost as if the USTR can't be honest or people might realize that it's spent the last few years pushing forward on an agreement designed to prop up old legacy businesses at the expense of the public and new innovators.

The USTR's statement on the fast track proposal is full of lies, half-truths and misleading statements. Let's look at a few.

TPA does not provide new power to the Executive Branch.

Hell yes, it does. Trade Promotion Authority gives the power of regulating foreign commerce directly to the USTR, rather than Congress. It allows the USTR to negotiate a "final" agreement with other countries, which Congress cannot seek to change, amend or fix. Instead, Congress can only give a simple "yes or no" vote on what the USTR comes back with. Without TPA, the USTR actually needs to engage Congress, and win its support and approval on everything within the agreement. That gives Congress -- which is supposed to represent the public -- a chance to make sure that (as the USTR has shown a proclivity to do) the agreement is not filled with ridiculous "gifts" for cronies and friends at the expense of the public and disruptive innovation.

TPA is a legislative procedure, written by Congress, through which Congress defines U.S. negotiating objectives and spells out a detailed oversight and consultation process for during trade negotiations.

If TPA didn't tie Congress' own hands, the USTR might have a point here. But it's not true. While the TPA bill does officially "define" the negotiating objectives, those objectives listed in the current bill are basically the USTR's own list of what it's working on, reprinted by friends in Congress. And, honestly, how is it possible that it "spells out detailed oversight," when what the bill really does is make sure that the USTR can give Congress whatever it comes up with and say "take it or leave it"? Without TPA, the USTR actually has to go convince Congress that what it's been proposing (secretly and with no public review) is actually in the public interest.

Under TPA, Congress retains the authority to review and decide whether any proposed U.S. trade agreement will be implemented.

Misleading at best. Insulting to anyone with at least half a brain. Congress has significantly less authority under TPA to review and decide any trade agreement. That's because without TPA, Congress can review and question different aspects, or introduce amendments and fixes to all the stuff that the USTR screwed up. With TPA, Congress can only give an up or down vote on the entire package. That means, as long as the USTR includes enough "pork" to outweigh the crap for the majority of Congress, it can get through a ton of dangerous proposals -- like those we've already seen in the still officially "secret" intellectual property chapter.

TPA ENSURES TRANSPARENCY AND PUBLIC ENGAGEMENT IN TRADE

TPA bills establish consultation and notification requirements for the President to follow throughout the trade agreement negotiation process – ensuring that Congress, stakeholders and the public are closely involved before, during and after the conclusion of trade agreement negotiations.

It's tough to read this and not laugh. This is an out and out lie. And it's a direct insult on the public. Remember, the TPP negotiations have been going on for years, and we still don't officially know what's in the TPP, other than what's been leaked. The idea that the public is "closely involved" is an insult. The public is not involved at all, entirely by the choice of the USTR, which has chosen to keep them out. As for Congress? They're also mostly in the dark. Yes, elected officials can go see the negotiating text, but they have to go to the USTR's offices, and they're not allowed to bring any staffers, make any copies or take any notes.

The USTR keeps pretending that because it will "meet with anyone who asks" that it's being transparent. But transparency is not about listening to whoever knocks on your door. It's about the other direction: it's about providing information out to the public -- something that the USTR has absolutely refused to do. The TPA does absolutely nothing to increase transparency, and actually gives the USTR fewer incentives to be transparent because now it knows there's no real oversight any more.

The USTR is flat out lying here, and it's a disgrace.

In addition to our congressionally mandated committees of industry and public sector advisers , the United States consults with all interested stakeholders at each trade agreement negotiating round and in between. We do this to share information and get views that make the negotiated product better. For TPP, these stakeholders have included representatives from academia, labor unions, the private sector, and non-governmental organizations. Under TPA, this activity would continue and be strengthened.

Misleading again. Yes, the USTR "shares" information, but only with a very small list of advisors -- who almost exclusively come from old legacy businesses. Everyone else? The USTR's response is to give them the middle finger. The claim about consulting with "interested stakeholders" at each round is also misleading. As we've covered in the past, at many (though not all) of the negotiating rounds, there would be an hour or two where "stakeholders" would have the opportunity to sit at a table and hope negotiators came to talk to them. Sometimes this would be done far away and at times when negotiators had better things to do -- like eat lunch. Sometimes stakeholders were allowed to give presentations, but with no guarantee that any negotiators would attend.

As for using those meetings to "share information" -- that's again highly misleading. Again, the USTR has been negotiating the TPP for years and still has not released any information at all on what's in it. What we know is what's been leaked out, and that little that's been leaked shows exactly why the USTR fears transparency and fears the public: because they're crafting an agreement designed to protect a few corporate interests at the expense of just about everyone else.

An honest an forthright USTR wouldn't fear the public, and it wouldn't insult and lie to the public as is happening here. The USTR is trying to pull a fast one over on the American public. It's negotiating an agreement in secret, pretending that it's being transparent, and then encouraging Congress to give up its right to review the agreement (without even seeing it), with insulting promises that by doing so, that will create more transparency.

Filed Under: congress, fast track authority, lies, tpa, tpp, trade promotion authority, transparency, ustr