USTR Needs To Reread Both The Constitution & The Definition Of Transparency

from the this-is-a-joke dept

As there is increasing pressure on the USTR over its total lack of transparency in the TPP negotiations (unless, of course, you're a special interest, in which case you get full access) it has now released what it calls a "fact sheet" about its "transparency" efforts. Of course, the only thing truly "transparent" here is just how hard the USTR worked to hide how opaque it has been in these negotiations. The "fact sheet" is chock full of things that aren't remotely factual.

Let's focus in on the big one:

Under the U.S. Constitution, the President is responsible for conducting U.S. foreign relations, including by negotiating and concluding trade and investment agreements with other governments.

That's only partially true -- and as with all sorts of "truthy" arguments, the real truth is in what the USTR conveniently leaves out. As you all know from your pocket copies of the Constitution, in Article II, Section 2, the executive branch is granted a specific power: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..." Treaties, yes, but those "treaties" were supposed to be about things like military alliances and such. When it comes to commerce... er, nope. That's Congress' mandate alone. Back to the Constitution and Article I, Section 8, where it clearly states that Congress is granted the power "To regulate Commerce with foreign Nations."

The second big problem is one we've discussed repeatedly. The USTR continues to pretend that letting people speak their concerns to the USTR is a form of transparency. That's ridiculous. Listening to concerned parties is not transparency. It may be "access" and it could certainly be worthwhile and influence the agreement, but it's not transparent. Transparency is about sharing information in the other direction. And, as the "fact sheet" makes clear, that only happens if you're a special interest.

Amazingly, the USTR claims that these special interest groups having access is a form of "transparency." Once again, I think it needs to better understand what transparency means. Only providing access to a select number of groups whose key interests don't align with the public's is not "transparency." It's cronyism and corruption. How does "the public" get onto a "trade advisory committee?" How many internet startups are on a "trade advisory committee?"

The USTR also, once again, trots out its bogus line about how it is transparent with Congress about the TPP -- leaving out the fact that they only allow elected officials to view the document in a special room, where they're not allowed to make copies, take notes or (most importantly) bring along staffers who are experts in trade. Even worse, the USTR has directly refused to provide access to the staff director of the Senate Subcommittee on International Trade. Let's think about that. The supposedly "transparent" USTR is refusing to allow the staff director of the Senate subcommittee in charge of international trade -- which, once again, is an issue that the Constitution mandates solely to Congress and not the Executive branch. This is transparency?

Oh, also, apparently the USTR thinks "transparency" involves taking quotes totally out of context. This is really pretty obnoxious. This "fact sheet" has a sidebar that includes two quotes strategically chosen from "critics" of the USTR, which the USTR positions as if to show that both groups agree that that it has been transparent. Nothing is further from the truth. If you put the very selectively quoted text back into context you discover that both come from statements raising concerns about the transparency -- but providing boilerplate praise for the fact that they're allowed to speak their mind to the USTR (which, again, is one way traffic in the wrong direction). First up, we have a quote from Celeste Drake of the AFL-CIO. This is how the USTR shows it:

"This Administration deserves to be commended for the outreach in which it has engaged. The cleared advisors for the AFL-CIO and its affiliates have spent dozens of hours discussing with Administration negotiators the specific issues that are involved in the TPP talks and offering concrete recommendations. We have appreciated the spirit of cooperation and dialogue exhibited by the Administration at all levels...

...the AFL-CIO has concerns about the overall secrecy of trade negotiations in general and would recommend broader sharing of USTR’s negotiating goals and proposals beyond the cleared advisor community. However, the level of engagement has been noteworthy..."

I'm actually a little surprised that they left in that "has concerns" line, since they removed lots of other things. You can see Drake's entire testimony (pdf) if you'd like. Nearly everything in there is a slam on the USTR for what it's likely putting into the TPP. Even the section selectively quoted here leaves out the preamble, which notes that the AFL-CIO is not happy. Here's the text with a little bit more context (but feel free to read the full thing for much greater context and the fact that it's almost entirely against the USTR's practices with the TPP):

Without addressing the still-secret text of the TPP, I will discuss a few of our concerns and recommendations with regard to some of the most pressing topics of the agreement. Before I do, I would note that this Administration deserves to be commended for the outreach in which it has engaged. The cleared advisors for the AFL-CIO and its affiliates have spent dozens of hours discussing with Administration negotiators the specific issues that are involved in the TPP talks and offering concrete recommendations. We have appreciated the spirit of cooperation and dialogue exhibited by the Administration at all levels. Of course, access does not equal influence, and it remains to be seen just how many of our suggestions will be incorporated into the final text. Moreover, the AFL-CIO has concerns about the overall secrecy of trade negotiations in general and would recommend broader sharing of USTR’s negotiating goals and proposals beyond the cleared advisor community. However, the level of engagement has been noteworthy—particularly when compared to the prior Administration.

See? Seems a lot less positive. The AFL-CIO is basically saying that just letting them show up and speak their mind is no excuse for the lack of actual transparency -- and that one-way form of communication is, once again, not transparent at all. Elsewhere in the same report, Drake slams the USTR's process of negotiating in secret:

Unfortunately, it has not been the practice of U.S. trade policy to engage in such economic evaluations until after an agreement is finished. Only when the text is complete do we learn of its potential to harm particular industries and their employees or to increase our global trade deficit. As a result, the United States Trade Representative (USTR) is typically flying blind in the agreements, unsure exactly how the agreement would help our domestic economy or bolster American workers, but secure in the belief that free trade will always do so.

This is not someone who is happy with the USTR process. Trotting them out as an example of greater transparency isn't particularly smart.

The second quote comes from Public Knowledge's Jodie Griffin. Here's how the USTR presents the quote:

"The USTR's stakeholder engagement website includes instructions both for registering for a stakeholder tables event and for making arrangements to make more formal presentations to negotiators. It's encouraging to see the USTR respond to stakeholder feedback so quickly and become more open to accommodating the needs of a variety of stakeholders.

... Transparency is a two-way street, and increasing the amount of information flowing from stakeholders to the government does not lessen the government's obligation to provide information about its activities and proposals to the public. That said, the USTR's efforts to help stakeholders engage with negotiators and make their case before the negotiating countries is promising."

For reasons I can only guess, the USTR does not provide a link to where that quote comes from, but I will. It's from a recent blogpost by Griffin, in which she does, in fact, praise the USTR for something very specific: agreeing to PK's suggestion that the upcoming negotiating round allow for both presentations by public interest stakeholders and a tabletop "fair" setup -- rather than having one or the other, as in past rounds. But... if you read the full blog post, you see that Griffin completely slams the "shocking lack of transparency" from the USTR:

The Elephant in the Room: Transparency

Of course, it must be said that all of the stakeholder engagement events in the world cannot make up for the shocking lack of transparency surrounding the substance of the negotiations and the TPP's text. Stakeholder events also cannot truly be effective if the negotiators are obviously not interested in hearing from public interest groups.

Transparency is a two-way street, and increasing the amount of information flowing from stakeholders to the government does not lessen the government's obligation to provide information about its activities and proposals to the public.

In other words, neither of these quotes are actually saying that they appreciate the USTR's efforts on transparency. They are talking about how the USTR is willing to let them speak, occasionally, and under specific and planned circumstances -- but not about transparency.

Once again, it appears that the USTR is working with a different definition of "transparency" than the rest of the world and... also a different edition of the Constitution.

Filed Under: afl-cio, celeste drake, jodie griffin, public knowledge, ron kirk, tpp, transparency, ustr