Sen. Sherrod Brown filed 88 amendments – some characterized as “poison pills” – to the “fast-track” bill to approve the Trans-Pacific Partnership. (Photo: Lingjing Bao / Talk Radio News)Barack Obama might come to regret branding the Trans-Pacific Partnership as “the most progressive trade deal in history.” A meaningless distinction from inception (the WTO and NAFTA set low benchmarks), Congressional Dems disputed the talking point in 2015 to devastating effect. As a result of their prodding from the left, the TPP looks far more in doubt than it ought to at this stage.
While many Dems on Capitol Hill can claim credit for this development, few are as deserving of it as Sen. Sherrod Brown (D-Ohio). In the Spring, as Congress debated a must-pass procedure – Trade Promotion Authority, or the “fast-track” bill – Brown filed 88 amendments; one for every county in his Rust Belt State. Some were decried as “poison pills” by the administration. The senator did not dispute the characterization.
In June, he fumed from the Senate floor that the TPP might impact laws aimed at curbing smoking, but that Congress didn’t even know if this was even the case. While it was being hammered out, negotiating parties kept the working text under tight lock-and-key; a routine source of grievance among Democratic Caucus members. “Even something this clearly violative of the public interest and of public health as the damage big tobacco inflicts on children – even that is not, to our knowledge being addressed,” Brown said.
Though the scraggly-voiced senator sounds like he himself hacks through two dozen Marlboro Reds every night (at least), Brown appeared to have struck a nerve. In July, a number of Dems on the House Ways and Means Committee wrote to USTR Michael Froman, charging that the public interest was under siege “from tobacco industry subversion in the TPP.” Whatever the impact, the US delegation pushed through the final agreement provisions barring tobacco companies from accessing TPP dispute resolution tribunals.
It might not have been Dems’ intention, but some Republicans greeted this modest proposal by proverbially strapping dynamite to their chests. Rather than accept what they saw as the good with the bad, the North Carolina senate delegation acted like the shutting out of Joe Camel was analogous to Jim Crow. Sens. Thom Tillis (R-N.C.) and Richard Burr (R-N.C.) denounced the move, with the former promising to both vote and whip against it.
“It’s ironic that the idea of equal treatment and due process is being peddled with our trading partners as equal treatment and due process for everyone but some members of the minority,” Tillis said in July, as rumors of the “carve-out” surfaced. “You may feel comfortable that this could never happen to you; to a sector in your state’s economy. But I believe you should be worried.” First, they came for the Philip Morris lawyers.
These egalitarian concerns reverberated to the top of the GOP Senate hierarchy. Majority Leader Mitch McConnell (R-Ky.) asked the president to refrain from targeting “a specific US agriculture commodity – in this case tobacco.” Finance Committee Chair Orrin Hatch (R-Utah) told NPR that “as much as I hate tobacco, we needed to have it in there.” Hatch noted fast-track only cleared the cloture-filibuster hurdle by three votes.
What made Republican leaders so glum is that Democrats barely flinched at news of the carve-out. Brown had called for the outright elimination of the TPP mediation tribunals in question; investor-state dispute settlement (ISDS) panels. Critics have decried existing ISDSs created under past deals as opaque courts, noting their power to award investors (and only investors) large sums of money if governments don’t grant them “minimum standards of treatment.” Brown said the tobacco amendment merely represented “true progress on that issue.”
Sen. Richard Blumenthal (D-Conn.), meanwhile, gleefully pointed out how the exemption highlighted “dangers posed both by tobacco and by [ISDS].” The same boards that can’t be entrusted to oversee a single product with widely-known side effects are expected, apparently, to dutifully uphold the integrity of financial safeguards, workplace safety and public health regulations, copyright law, and whole range of other matters.
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If the carve-out can be taken as an admission by the White House that the TPP framework should give progressives some concern, it came as something of a surprise. The administration insisted that the agreement framework was fundamentally geared toward opening avenues between consumers and producers.
“[W]e think market access is an appropriate issue to be negotiated in trade negotiations,” Treasury Secretary Lew remarked in March. “Prudential standards,” he said, were not subject to “trade negotiating processes or trade remedies.”
Where “market access” ends and regulatory matters begin in the TPP, however, is blurred; almost intentionally so, in light of its focus on “non-tariff barriers” – or “laws,” as people without advanced economics degrees might call them. Like in January, for instance, when Froman assured Republicans he was in favor of data localization bans called for by Wall Street – an initiative that could effectively hamstring regulators on the beat.
The general cognitive dissonance lit a fire under liberal legislators in colorful ways reminiscent of a pre-2009 Washington.
“Perhaps [Froman] has gotten access under DC’s new legalization law to some marijuana and he’s filling in gaps in his memory with confabulated facts,” Rep. Peter DeFazio (D-Ore.) said in March. Rep. Mark Pocan (D-Wis.) told reporters that Froman’s case for TPP involved “baffling them with bullshit.” By April, the administration was relenting on some of the secrecy shrouding negotiations, granting lawmakers a chance to review “an unredacted version” of the working text. Rep. Alan Grayson (D-Florida) told The Sentinel it was “a very passive aggressive concession.”
“They’re losing votes,” Grayson said. “Members are saying in meetings ‘why are you playing these games with us? We have a constitutional duty to review these agreements.'”
But no interaction between the legislative and executive highlighted Barack Obama’s inability to connect with his base on this issue like his May rebuke of Elizabeth Warren. Obama said the progressive firebrand did not pass “the test of fact and scrutiny” when she panned his trade agenda as a gift to Corporate America. A week later, the senator’s office issued a 15-page, 68-footnote response called “Broken Promises.”
“President Obama has repeatedly stated that the TPP is ‘the most progressive trade bill in history,'” the report stated. “But proponents of almost every free trade agreement (FTA) in the last 20 years have made virtually identical claims.”
The report’s chronicling of US trade partners running roughshod over workers post-liberalization, in particular, did not make for comforting reading. Of the twenty countries that have entered into FTAs with the United States, Warren staffers cited “significant problems with use of child labor or other labor-related human rights abuses in eleven.”
Thus, after the deal was finalized in October and released in November, there were few surprises – though Rep. Louise Slaughter (D-N.Y.) took aim at privacy measures in a tweet with the hashtag: #TPPWorseThanWeThought. Congressional Progressive Caucus co-chair Keith Ellison said that “Americans can see for themselves whose interests are prioritized when a trade deal is negotiated in secret with unprecedented input from multinational corporations.”
He took exception to how the agreement would deregulate the economy in every way possible – except where it cracks down on copyright infringement. “The TPP is not progressive,” Ellison said. “It is a bad deal for working families.”
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It is a lasting tribute to Washington’s cynicism then that TPP might die not because it is “a bad deal for working families” but because it wouldn’t grant rights to tobacco companies.
Conservatives and liberals on Capitol Hill, after all, could unite behind an alleged Executive Branch fraud that, if true, made a mockery of them both and called into disrepute a regular foreign policy assessment that still carries significance abroad: the State Department’s Trafficking In Persons (TIP) report.
When the fast-track/trade promotion authority bill passed in the Spring, Sen. Bob Menendez managed to attach to it a provision declaring countries with a “Tier 3” TIP rating ineligible for the TPP. The measure was aimed squarely at Malaysia, a TPP negotiating partner and Tier 3-designee for many of the preceding years, including 2014. But when the 2015 report came out, State concluded Malaysia belonged in Tier 2. An investigation published by Reuters not long after uncovered “a degree of intervention not previously known by diplomats in a report that can lead to sanctions and is the basis for many countries’ anti-trafficking policies.” The meddling impacted rankings of fourteen “strategically important countries.” Malaysia was among them.
The Senate Foreign Relations Committee took note, and, generally speaking, wasn’t pleased. Its chair, Bob Corker (R-Tenn.), called one State official’s defense of the report “heartless” and repeatedly threatened to subpoena the department for internal TIP records. One of those threats came in September after a classified briefing by Deputy Secretary of State Tony Blinken. An informational session, Corker said, that left him “very unsatisfied.”
In November, the committee’s House counterpart pressed on for answers in a separate hearing, featuring State’s TIP office chair, Dr. Kari Johnstone. Both Republican and Democratic members were left wanting to go further up the ladder.
“As we started to do the analysis about who was included and who was excluded, it appears that it goes to the very highest levels within the State Department in them weighing in on who should be on the report and who should not,” Rep. Mark Meadows (R-N.C.) said at the top of the set piece. Another aggrieved lawmaker, Rep. Brad Sherman, said it was “why the Secretary of State ought to have the whatever’s to come before Congress and defend this decision.”
It never seemed likely, however, that lawmakers would use the effective usurpation of their authority to pull the rug out from under the TPP.
“As much as I might disagree, I would be more respectful of the competing interests saying: ‘Look, we need Malaysia in the Trans Pacific Partnership,” Menendez said in September. “We think that’s important for our Pivot to Asia. I might disagree with that, but at least I respect that.”
Either way, those who have been hoping for TPP’s death won’t care how it happens, if it does, when McConnell brings the deal up for a vote late in 2016, as he is expected to. If TPP crumbles due to the fallout over the whitewashing of systemic human rights abuses or due to tobacco company lobbying, the end result would be the same.
It would bring the administration’s “most progressive trade deal in history” talking point closer in line with both the Democratic Party base and the truth: the most progressive free trade agreement in history, at this point, would absolutely be a failed one.
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