Calm the TPP Panic: Congress Has Five Months to Vote Down Obamatrade By Andrew C. McCarthy
http://www.nationalreview.com/node/419670/print
Like most conservatives of a free-market bent, I am predisposed to favor the elimination of trade barriers. But I do not trust the Obama administration; I do not trust government that I cannot verify; and I object to corporate welfare, public-private partnerships, and similar cronyism that enables the established and the connected to crowd out innovators and challengers.
Consequently, unless the TPP deal is made public and widely circulated, I would oppose it on principle. And if it is so voluminous and convoluted that it would not be realistically possible to know what the law is, I would likewise oppose it on principle. That would not be a case of a conservative opposing whatever President Obama supports; as my Corner post on Thursday illustrates, I support trade-promotion authority, which President Obama wants and hopes to use.
Opposition to an insufficiently transparent TPP proposal would instead be a case of using the leverage the Constitution provides to induce the president to conduct himself in a manner that is lawful and aboveboard.
The question is whether TPP is sufficiently transparent.
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Politicians such as Senator Rand Paul who have argued that it is not rely on sleight-of-hand: namely, the suggestion that the existing draft of the TPP, which has gone through several iterations and continues to evolve, is the same thing as the ultimate, formal TPP agreement, which obviously does not exist at the moment.
It is undeniable that the Obama administration is treating the draft as if it were a national-defense secret. In order to review the draft, members of Congress and their staffs must first execute a nondisclosure agreement — they are forbidden to discuss its terms publicly. They must go to a secure location even to read it. They may not keep a copy of the draft, and while they are permitted to take notes, those must remain in the secure location — they cannot take the notes back to their Capitol Hill offices.
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This does indeed sound obnoxious at first blush. But then we remind ourselves that the draft agreement is not the formal agreement. The draft is a work in progress that the executive branch is actively negotiating with the governments of foreign countries — negotiations that are sensitive and complicated because of the subject matters and the number of players.
Complaints about a secret deal being rammed through Congress and foisted on an unsuspecting public — à la Obamacare — are risible.
There is no requirement for the executive branch to show Congress anything that is preliminary. The only agreement that is going to be voted on is the final agreement — at least if Obama wants that agreement to have the force of American law.
Significantly, with respect to that final agreement — which, to repeat, does not exist yet — the transparency protocols are apparently extensive. According to AEI’s Claude Barfield, the legislation will provide that the actual text of the final TPP agreement must be available not just to Congress but to the public for 60 days before the president is permitted to sign it. After that, if he wants the agreement to have the force of American law, the president must formally submit the final agreement to Congress, which would then have 90 days to review and vote on it.
That is, the supposedly “secret” TPP may not be approved until the public and our representatives in Congress have five months to scrutinize it.
If Dr. Barfield is correct, and I have found nothing to suggest otherwise, then the complaints about a secret deal being rammed through Congress and foisted on an unsuspecting public – à la Obamacare – are risible.
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It is far from a perfect parallel, but as a prosecutor I negotiated hundreds of plea agreements, some extremely complex, with defense lawyers. Even if it were not contrary to federal law for the court to participate in plea negotiations, I would not have considered sharing evolving drafts of agreements with a judge. The court gets to endorse or reject the final agreement; nothing good would be served by bringing the court into the negotiating process. And since I was trying to negotiate good agreements for the United States, the last thing I would want to reveal to anyone not directly involved in the negotiations would be changing iterations of an agreement. Doing so could tip my hand regarding what my weaknesses were.
In the present case, by contrast, the (changing) draft agreement has been made available to Congress for three years. Yes, that availability has been restricted in the aforementioned ways. Dr. Barfield notes, however, that such restrictions are not an innovation of the Obama administration. They have been applied to trade agreements for over two decades, with support from both parties in Congress. Further, Barfield convincingly adds, there can be good reasons for restrictions on access and disclosure. Negotiations tend to go down to the wire; it can hurt the country’s bargaining position to expose prematurely what compromises we are willing to make, and at what price.
Congress has leverage here. Obama wants this TPP deal and he knows he needs Congress if he is to get it. His incentive is to be cooperative and give members a reasonable amount of access while maintaining enough confidentiality to maximize his negotiating leeway. That, undoubtedly, is how the protocols in place came to be in place — notwithstanding that doctrinaire opponents of TPP will naturally be happy to decry the “secrecy” if it helps the objective of scotching the deal. But in reality, it would be foolish for Obama to withhold outrageous agreement terms from Congress; those terms would be exposed five months before Congress would have to vote on them.
The arrangements in place have allowed Congress far more access to the executive’s negotiations than the Constitution and federal law require. Has access been under non-disclosure terms? Sure: lawmakers leak — not all of them, but many of them. Leaks are not conducive to negotiating good deals. But there is, in any event, no non-disclosure shroud over the final agreement.
On the matter of negotiating good deals, I am fully sympathetic to the argument that Obama’s idea of a good deal will prove to be very different from what is actually a good deal for America. I am equally sympathetic to the argument that Republicans have been a supine opposition against this president’s copious excesses and lawlessness. That is a huge problem on TPP (as it has proved to be on the reckless Iran negotiations).
There is good reason to fear that, under the guise of benign free trade, Obama is cutting a deal that goes way beyond trade, undermines some trade, promotes his immigration-amnesty and climate-change policies, rewards his cronies, and is noxious in other ways not yet anticipated. Also, because Beltway Republicans are sympathetic to some aspects of Obama’s agenda and have been feckless in opposing others, there is reason to fear that a bad TPP would be enacted into law.
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All of that, however, amounts to a sound rationale for vigorously opposing TPP if the final agreement contains egregious elements that outweigh whatever good is done on trade — or that are so egregious the agreement should be rejected regardless of any cost-benefit analysis.
Nevertheless, the case for such opposition is not improved by complaints about “secrecy” and the purported perils of giving a president authority to seek an up-or-down vote from Congress on a reasonable time frame. If the deal is a bad deal, we should oppose it and pressure Congress to vote against it. And if the real problem is that Republicans cannot be trusted to vote down a bad deal, then the problem is the Republicans, not the process.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.
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