Government is ignoring input on trade transparency

By Celia Wexler

Friday, March 18, 2016 | 2 a.m.

This month, we observe the birthday of James Madison, the patron saint of government transparency. Madison, one of our Founding Fathers, championed the notion that government must operate openly if democracy is to flourish. Citizens must be informed to be effective.

It is a good time to see where we are on trade and transparency. When I last wrote about this issue nearly a year ago, things were pretty dark, both literally and figuratively. The public had very little information about both the Trans-Pacific Partnership (TPP) trade negotiations between the U.S. and Pacific Rim nations, and trade talks with the European Union. Even members of Congress had limited access to trade documents, and that access often did not extend to their staff because the documents were considered classified information.

Transparency was supposed to improve last June, after congressional passage of “fast-track” legislation. Many environmental and public-interest groups, including my organization, the Union of Concerned Scientists, raised concerns about the fast-track process. The fast-track bill gives the current president, and a future administration, the power to use an expedited process to gain congressional approval of a trade agreement. Under fast-track, Congress cannot amend the agreement and has limited time in which to debate it.

But when it appeared that congressional opposition and citizen activism might defeat the bill, its sponsors promised far more transparency for future trade negotiations.

One of the selling points of the fast-track bill, co-sponsored by Republican Sen. Orrin Hatch of Utah and Democratic Sen. Ron Wyden of Oregon, was that it would provide more transparency for the trade process moving forward.

The bill, Wyden said, “creates what I expect to be unprecedented transparency in trade negotiations.”

So are we now in transparency heaven when it comes to trade deals? That doesn’t appear to be the case. The fast-track bill does permit more congressional staffers to see trade documents, but only if they have the appropriate security clearance.

Yes, the public now has access to the text of the voluminous TPP trade deal. Seeing the text spurred members of both political parties, as well as a number of public-interest groups and labor unions, to voice their criticisms, now based on fact, not rumor.

The fact that the TPP is getting public scrutiny is a good development, but it likely will not change the trade agreement. Transparency came at the end of the process, too late for the public and our elected representatives to shape the contours of the agreement.

But the fast-track transparency reforms could still affect the pending deal between the U.S. and the EU, the Transatlantic Trade and Investment Partnership, or TTIP.

The U.S. and the EU are still talking, but the U.S. continues to keep the public in the dark about the nature of the negotiations and the issues on the table. More sunlight is crucial because what’s at stake is far more than tariffs. Business interests have made very clear that they want the trade agreement to “harmonize” regulatory regimes on both sides of the Atlantic, and to ease what regulated industries term “trade irritants,” but what most of us consider much-needed protections for public health and safety and the environment.

The Office of the United States Trade Representative’s chief transparency officer, a position created by the fast-track bill, is none other than the USTR’s general counsel. By all accounts, Timothy Reif, who holds these two positions, is an honorable public servant.

But that’s little comfort. As the USTR’s chief lawyer, Reif is the agency’s protector of confidentiality. He can’t simply switch hats and become its transparency advocate. For this reason, last fall, openness advocates urged the USTR to reconsider Reif’s appointment.

The letter, signed by 22 transparency groups, pointed out that “it is unclear” how Reif, who is the staffer who must defend the USTR’s stonewalling of the public and denial of Freedom of Information Act requests for trade texts and other information, could suddenly transform himself into a transparency advocate, with the stated mission to “identify opportunities to further transparency, collaboration and public engagement, particularly in areas where additional transparency may be required.”

Certainly since the USTR gained a chief transparency officer, it does not appear that sunlight is pouring out of the USTR. The public still has no access to TTIP draft texts stating the U.S. position on negotiations. And the transparency plan that the USTR released last fall doesn’t significantly change anything as far as public access is concerned.

The USTR proposes to inform the public, but not with actual information. Instead, it discusses its blogs, news releases and fact sheets, which in the past have been more about persuading the public to accept trade deals than actually giving it facts about the negotiations.

The USTR remains committed to not publicly releasing draft negotiation texts until after deals are reached. The EU is releasing draft texts, but they are one-sided. We don’t know how our own trade representatives are responding to the EU’s proposals.

Not only do our trade representatives continue to keep trade negotiations secret, until now, they have not publicly released the numerous position papers that hundreds of public-interest groups have presented in public-stakeholder sessions during this negotiation process. The Union of Concerned Scientists’ Center for Science and Democracy has presented its comments before the USTR, calling for, you guessed it, more transparency in trade negotiations.

It is possible that the USTR’s new transparency plan may at least give us a vehicle for seeing others’ comments on the trade negotiations with the EU. The USTR has promised to issue notices in the federal register for “every trade agreement under negotiation,” soliciting public comments whenever “new issues arise in connection with a trade negotiation.” It pledged to disclose all “nonconfidential” comments on the federal register’s website.

But when I checked the federal register, it appeared that the USTR hasn’t been actively soliciting comments on the TTIP or TPP for a while. It is good to see that some comments are captured on the federal register’s site. But certainly the 88 comments submitted on the TPP in 2009, or the 22 comments concerning an environmental review of the TTIP in 2014, do not begin to measure all the position papers that were submitted to the USTR during its periodic stakeholder meetings.

In the past, we haven’t known whether our trade representatives even kept the papers we carefully prepared and presented at these stakeholder meetings. When it came to our calls for transparency, the only thing that was clear is that our trade officials were not listening. And for all their promises, there’s not much evidence that they are listening now.

Celia Wexler is the senior Washington representative for the Center for Science and Democracy’s Union of Concerned Scientists. Sunshine Week, a national initiative to promote a dialogue about the importance of open government and freedom of information, ends today.