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Transparency in Trade Negotiations
“Transparency” has become one of the big issues in the current trade debate, both with respect to ongoing negotiations – Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) – and what will be said about it in any Trade Promotion Authority (TPA) legislation Congress might consider.
I confess to mixed feelings about it. I was a charter member of Common Cause years ago when “government in the sunshine” was a key demand of various activist groups. However, after a good number of years working on Capitol Hill, I dropped out of the organization because I had seen firsthand that sunshine is not all it’s cracked up to be. Rather than elevate and make more principled the legislative process, two things happened instead. First, Congressional sessions, whether they were committee markups, floor consideration, or conference committees, increasingly became opportunities to make grand polarizing statements rather than a chance to find common ground – playing to the cameras rather than trying to reach a compromise. Second, Members quickly realized that no deals were going to be cut that way, so they retreated to informal sessions in backrooms to do the same things they had been doing before in publicly announced sessions that were closed to the public.
Woodrow Wilson’s idea of “open covenants openly arrived at” was a dream then and has never been realized, nor should it be, in my view. (Since the NFTC was founded in a meeting with President Wilson and this is our Centennial year, I feel obligated to sneak in one of his quotes every time I can.) Most negotiations of any sort do not occur in public because to do so would undermine the positions of each side and make it more difficult than it already is for them to offer concessions. So, on the question of public transparency, I am unrepentantly in favor of closed doors. That does not preclude extensive debate once an agreement has been concluded and put before Congress, nor should it, but that debate is focused on the merits of the final product and not on tactical moves our negotiators may have made along the way.
Transparency for Congress, however, is something of a different matter. Both the U.S. Constitution and successive trade laws provide a key role for Congress in the development and implementation of trade policy, a role that Members cannot play unless they have adequate information about the state of a negotiation. For that reason, Congressional TPA laws have consistently included provisions requiring close consultation between the executive and legislative branches on trade policy and ongoing negotiations.
Even so, tensions remain. Part of that is institutional. Having served in both branches of government, I learned that for Congress, “consultation” means the Administration coming to them and saying, “We don’t know what to do. Tell us what to do.” For the executive branch, however, it means giving Congress two hours advance notice on the press release announcing the decision. Neither branch will ever be completely happy with any arrangement. Making the effort to come together on an arrangement, though, is essential, and both sides currently seem to be trying to do that. We in the business community should encourage them to keep at it.