Congress is responsible for managing major government policies year-by-year, as our experience and goals evolve. How does that work in the case of huge trade deals like the Trans-Pacific partnership (TPP)?
In the American political tradition, elected officials hold hearings, request studies, speak to constituents, take public comments, try experiments at the state and local level, and periodically face voters to work out what we want for Medicare, tax policy, education, defense and all other major policy areas.
With trade, not so much. TPP was negotiated in secret, under the influence of corporate advisors, and is largely set in stone for generations. Or is it?
The recently released text establishes roughly 20 committees to manage trade in agriculture, government procurement, the Internet, food safety, financial regulation, and other topics covered in the deal. Some committees have narrow authority, but others have open-ended scope, such as the Committee on Trade in Goods which will "...undertak[e] any additional work that the Commission may assign to it."
So, what is this "Commission," established under TPP? It coordinates work among the Committees. It also interprets provisions of the agreement. In our tradition, that authority belongs to courts.
The Commission may also "... take such other actions as the Parties may agree." If we are unclear on what that means, we can let the Commission explain to us exactly what it has the authority to do.
Senator Jeff Sessions has this reaction to the "living" part of TPP.
The predictable and surely desired result of the TPP is to put greater distance between the governed and those who govern. It puts those who make the rules out of reach of those who live under them, empowering unelected regulators who cannot be recalled or voted out of office. In turn, it diminishes the power of the people's bulwark: their constitutionally-formed Congress.
As we look at the text, it becomes clear that TPP is really a governance document. It is not just about trade.
Committees appeared in past trade agreements. They have focused on practical and technical matters. To be sure, rules and interpretations have significant practical effect. Ask any trade lawyer who just got off the phone with his or her corporate client.
Who sits on these committees? For some Committees, members will be government representatives of each TPP country, but that could include employees of state-owned enterprises in Vietnam, or former lobbyists from pharmaceutical industry groups. Again, the Commission can clarify that for us.
Our chief trade negotiator for TPP came from Citigroup. Similarly, a former lobbyist for Monsanto and other global corporate clients headed our negotiating team for agriculture.
In contrast, when Europe integrated its economies, they created a parallel political system that reflected their values. In their solution to the "living document" question, they established the European Union with a Constitution, and created a European Parliament where elected officials represent their political interests and values. Their system has legitimacy and accountability.
Corporate interests will influence most of the TPP committees. However, the committees for labor and environment have relatively little authority. The Committee on Environment has very mild authority within a chapter that doesn't mention the words "climate change." The labor committees are limited in operation and act only in the transition period when the deal takes effect.
More to the point, labor and environment have never been taken seriously in trade deals.
The US has never enforced violations of environmental protections in past trade deals. Since NAFTA, extensive systemic labor violations have brought only token enforcement. Our trade negotiators told US labor leaders that dozens of murders of labor organizers in Central America are not necessarily violations of labor protections.
Malaysia has a long record of failure dealing with human trafficking, child labor, and forced labor, according to annual evaluations by the US State Department.
It makes no sense to give Malaysia preferred access to our markets. Earlier this year, in a jaw-dropping move, our State Department raised Malaysia's ranking on human trafficking without explanation or justification, from the worst possible category to the next level, which is still below the international standard for human trafficking. This qualified Malaysia to be our "partner" TPP.
Since NAFTA, 6 countries have ignored international standards for human trafficking for decades - Malaysia, Vietnam, Peru, Singapore, Brunei, and Mexico. Each of those countries will have the same vote in TPP committees that we have.
China will do very well under TPP. They are already almost twice as integrated in TPP economies in Asia as we are. China will have access to our markets though the other 11 countries. TPP allows Japan, Malaysia, and Singapore to source roughly half of autos and many other products in China, and still qualify preferential access to our markets.
We are told we should set the rules for globalization, and not let China set the rules.
We should set good rules that will be legitimate, accountable and politically stable. Those rules should raise living standards in the US and other countries. They should reflect our values as a society.
The US Constitution gives us checks and balances and separation of powers. The Bill of Rights protects individual rights. Our Constitution doesn't mention corporations even once, and certainly not global corporations.
In TPP, all authority works through the President. If the US Trade Representative wants to expand investor rights, ignore labor violations, or interpret language to the benefit of one industry or another, TPP has no separation of powers, no checks and balances, and only a token public process. Maybe Canada will speak for workers and the environment.
Our courts are already marginalized by the dispute settlement system in NAFTA-style deals. Senator Sessions is right. TPP moves Congress and our courts farther out of the globalization picture.
TPP is really about institutions and power - political, economic, and social power to decide who gains from globalization.
House Minority Leader Nancy Pelosi said it well in June; our trade policy should do as much for workers and the environment as it does for global investors. That will mean Congress rejecting the TPP and starting over with an open process that includes more voices and reaches a better outcome.