[P]opular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both. … And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. – James Madison, 1822
What If major decisions that will affect Americans’ public health and safety, environment and financial stability were being made right now behind closed doors? And the only substantive information about these decisions came from Wikileaks? What if the only people privy to this inside information have been 566 trade advisors, the overwhelming majority of whom represent corporate interests?
You’d expect a large outcry from the U.S. public and the media. But these secret talks are occurring with very little notice or outrage from either journalists or the transparency community in this country.
The talks I’m describing are occurring around major trade negotiations, both with Pacific Rim countries and with the European Union.
The public opposition, by and large, has come from labor, consumer and environmental groups, concerned about both the secrecy and the content of proposed trade deals. But in this country, this massive lack of sunlight has gone largely unreported and has not grabbed the attention of transparency advocates. Without greater public opposition and media attention, it is likely the secrecy will continue, impeding the ability of citizens to express their views about the issues at stake in these and future trade deals in a meaningful way.
The talks that we’re conducting with the EU in particular should be subject to far greater transparency since they focus on the ways the EU and the U.S. agree to resolve differences in the ways each trading partner regulates public health and safety, the environment, and financial institutions.
The U.S. and EU have been almost exclusively focused on ways to eliminate what the business community calls “trade irritants” but what most of us consider public protections. Their goal? Regulatory “harmonization” and “coherence.” Those lofty sounding terms may presage a successful effort to adopt shared standards that offer the lowest protection to citizens of both the EU and U.S.
For example, trade negotiators are considering the creation of a Regulatory Cooperation Council that would oversee the development and implementation of regulations proposed by either the U.S. or the EU, and extending that oversight to state laws and regulations. Such a Council likely would examine such proposed laws and rules based on their costs and benefits, as well as their impact on trade, and would prioritize regulatory impacts on corporate profits over their value to the general public.
Such a council could block efforts by California and other states to promote electric cars, control pollution or ban unsafe consumer products, and weaken or stall progressive efforts in Europe to regulate chemicals based on the precautionary principle, requiring chemical makers to demonstrate their products are safe before they can be sold. TTIP also could jeopardize regional efforts to address climate change. This scrutiny also would extend to laws and rules proposed by both the EU and its member countries.
Even worse, this and future trade agreements may very well include Investor State Dispute Settlement, (ISDS) giving a corporation the right to sue a foreign government, claiming that its regulations unfairly hurt its bottom line. Such lawsuits would be decided by corporate and trade lawyers in an extra-national tribunal operating out of public view.
ISDS in other trade deals has had real-world impacts. Using ISDS, Philip Morris sued both Uruguay and Australia for trying to impose restrictions on cigarette labeling. Likewise, Germany’s decision to shut down its nuclear power plants resulted in an ISDS lawsuit from a Swedish nuclear power company.
These are serious issues, and require the public’s and the media’s engagement. The EU has recognized this, after EU citizens vigorously protested the lack of sunlight. Late last year, the European Commission agreed to let the public see the EU’s draft negotiating texts, and now even provides fact sheets and other materials to help Europeans understand the process.
Michael Froman, the U.S. Trade Representative, has been not been willing to follow the EU’s lead. That is very disappointing and counter-productive. It also is contrary to the ideals on which this country was founded. Self-government, as James Madison wrote nearly 200 years ago, requires information. If citizens lack information, they are powerless to weigh in on issues that will affect them. Their participation does, indeed, become a “farce.”
If the USTR hopes to have public support for these sweeping trade deals, and to gain the cooperation of Congress, it is crucial that trade negotiations not remain in a black box. No one is suggesting that every nuance of trade talks be broadcast live on C-Span. But citizens from both the U.S. and the EU have the right to know the details of the proposals that are being considered.
This is a nation founded by individuals like James Madison who believed in the power of knowledge and the value of an informed citizenry. It’s time for the USTR to recognize the public’s right to information, and to uphold one of our core national values.
Celia Wexler is Senior Washington Representative for the Center for Science and Democracy at the Union of Concerned Scientists. A former journalist, she is the author of Out of the News: Former Journalists Discuss a Profession in Crisis.