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Tool of the Trade

The Trans-Pacific Partnership has the support of the White House, but has drawn widespread criticism from opponents who say the secretive, 12-nation free trade deal will outsource more American jobs and undermine labor rights, environmental protections—and the very sovereignty of its member nations.

Trans Pacific Partnership Wall

Whether or not to approve a Washington-backed proposal for what could be the world’s largest trade accord is a huge responsibility for any member of Congress. For Ohio Democratic Sen. Sherrod Brown, a veteran defender of the rights of Midwestern blue-collar workers and middle-class families, the issue is nothing less than the most contentious political battle of 2015.

In a hearing of the U.S. Senate Finance Committee on April 16, Brown’s usually warm and affable demeanor gave way to alarm and exasperation. The reason was the Trans-Pacific Partnership (TPP), a secretive 12-country trade agreement currently under consideration in Congress and under fire from a wide variety of public interest and human rights groups, not least because it has been secretly negotiated since 2008, and most of the public information about it has come from several leaks of its text.

Brown, one of the TPP’s leading critics, said he was frustrated by the difficulty members of Congress have had getting information about the proposed treaty from the office of United States Trade Representative (USTR) Michael Froman, who was present at the hearing.

“From my own experience, USTR’s consultations with Congress have been—and I hesitate to use this adverb but I will—pathetically inadequate,” Brown said while addressing Froman. “I don’t understand why my staff can’t go in this [USTR office] room to read this text—it just begs the question, what are you hiding?”

The proposed treaty encompasses large economies such as the U.S., Canada, Japan and Australia, but also smaller ones such as Singapore, New Zealand and the tiny Southeast Asian sultanate of Brunei. Together, the countries represent some 40 percent of the world’s gross domestic product.

The White House and the USTR have been lobbying heavily for the TPP. The treaty “will boost U.S. economic growth, support American jobs, and grow Made-in-America exports to some of the most dynamic and fastest growing countries in the world,” according to the USTR website. But the TPP has drawn widespread criticism for giving corporations the right to sue governments in international tribunals when they feel that regulations they don’t like are cutting into their profits. Other concerns include how the TPP appears set to outsource American jobs and undercut labor rights, environmental protections, food safety standards, freedom of speech and Wall Street financial reforms.

The deal itself is highly complex, with competing interests and concerns. Human rights advocates worry if the treaty will enforce higher labor standards on participating nations such as Communist Vietnam. Captains of U.S. industry are concerned that encouraging imports will further erode local manufacturing—while lower tariffs overseas may fail to stimulate American exports. There are worries that the TPP’s intellectual property rules will mostly benefit leading pharmaceutical companies and corporations. And finally, many Congress members worry that the TPP will deprive them of their constitutional authority to determine how the U.S. conducts trade and commerce with the outside world.

The matter came to a head this spring, when the White House and the USTR lobbied for a so-called Trade Promotion Authority—that is, the ability to “fast track” the proposed treaty. Such an authority would force Congress to say no more than “yes” or “no” when the TPP comes up for a vote, depriving members of any power to amend the agreement.

Many labor leaders have decried the TPP as “NAFTA on steroids,” referring to the 1994 North American Free Trade Agreement pushed through by former President Bill Clinton, who promised that NAFTA would bring growth to the American job market. But the Economic Policy Institute (EPI), a nonprofit Washington, D.C., think tank, has reported that NAFTA cost the nation 700,000 jobs, while creating a pathway for corporate globalization. If the TPP is pushed through, the consequences could be far more devastating: According to EPI, special protections for investors in the leaked TPP proposal are likely to encourage the outsourcing of the 12 million jobs that remain in the U.S. manufacturing sector.

Little wonder that Brown, a longtime opponent of NAFTA-style agreements that undermine American workers and businesses, said in a recent statement that “trade deals cut behind closed doors amount to corporate handouts and worker sellouts.” By contrast, “trade done right creates prosperity—leveling the playing field for all companies, strengthening the middle class, and lifting workers from poverty,” he said.

Sen. Bernie Sanders of Vermont has been another vocal opponent of the TPP. “It’s part of a global race to the bottom to boost the profits of large multinational corporations by outsourcing jobs, undercutting worker rights, and dismantling labor, environmental, health, food safety and financial laws,” he wrote in a letter in early April, urging supporters to sign a petition against the TPP. “Wall Street, the pharmaceutical industry and major media companies that stand to benefit from this agreement are now pressuring Congress to authorize the TPP treaty without allowing lawmakers due process to revise it.”

Sanders took to the streets on April 20, helping to lead a protest attended by hundreds of labor union leaders and workers in front of the USTR office in Washington.

There has also been a wave of negative reaction to how the trade deal has not only been negotiated in secret but will remain classified for four years as “national security information”—whether it passes or not.

In a New York Times op-ed in April, Margot E. Kaminski, an assistant professor of law at Ohio State University, warned that national security secrecy “creates a funnel where powerful interests congregate, absent the checks, balances and necessary hurdles of the democratic process.” Kaminski explained that the USTR office has been classifying information such as the TPP deal since the office was forced to turn over documents in a 2002 lawsuit.

Yale Law School’s Media Freedom and Information Access Clinic is challenging the USTR office’s practice of classifying information in a federal lawsuit in which Kaminski has testified. The suit seeks to make public the secret negotiations regarding the TPP’s intellectual property rules.

One of the most controversial aspects of the TPP deal is the so-called system of “investor-state dispute settlement,” which is ostensibly aimed at protecting investors from anti-competitive regulations overseas and unfair treatment in the courts of foreign nations. Widely referred to as ISDS, it gives corporations the power to challenge governments in international tribunals outside the judicial systems of nation states. What’s more, the tribunals utilize highly paid corporate lawyers who are also permitted to take turns as judges.

“The name may sound mild, but don’t be fooled,” wrote Elizabeth Warren, a noted Democratic senator from Massachusetts in a February op-ed in The Washington Post. “Agreeing to ISDS in this enormous new treaty would tilt the playing field in the United States further in favor of big multinational corporations. Worse, it would undermine U.S. sovereignty.” Besides, asked Warren, “if you’re a lawyer looking to maintain or attract high-paying corporate clients, how likely are you to rule against those corporations when it’s your turn in the judge’s seat?”

Defenders of ISDS argue—correctly—that such dispute settlements have long been a feature of hundreds of trade agreements. But critics point out that it isn’t just an issue of trade policy—deals such as the TPP are so huge that it’s dangerous to empower corporations while undermining the sovereignty of member nations. For example, a similar deal in the works in Europe—the Transatlantic Trade and Investment Partnership—also has investor-state dispute settlement provisions. If the deal succeeds, its dispute settlement mechanism could, together with that of the TPP, encompass a large share of global corporations.

“The real problem with ISDS is that cases can only go in one direction: multinationals can sue sovereign governments for unlimited amounts of money, but nations and citizens do not have the same right to sue multinationals,” says Robert Longer, legislative-political director of the Communications Workers of America, one of the many labor unions opposed to the TPP. “Under ISDS, the court system is bypassed for multinationals, yet the claims of anyone else must make their way through the courts or, more typically, in government-to-government discussions that often drag on for years without any results.”

International trade watchdogs are worried that the TPP could undermine Wall Street regulatory reforms at a time when the U.S. economy is still in a fragile recovery following the 2008 financial crash. There are also fears that food safety standards may be compromised in trade deals. In an April 2 newsletter, an organization called Beyond Nuclear joined forces with the Japan-based Fukushima Fallout Awareness Network to point out that the U.S. could be forced to accept contaminated food exports from Japan. Food deemed too radioactive by Japanese standards would be acceptable under less-strict American standards, where the limit for radioactive cesium from the fallout of the Fukushima nuclear meltdown is 12 times higher than Japan’s, the newsletter noted.

“We can be sued for trying to protect our food supply from man-made radiation, to which kids are particularly vulnerable,” Beyond Nuclear’s radiation and health specialist Cindy Folkers told Freedom via email. “We might also have to pay for the ‘lost’ corporate profits this causes with our tax dollars.”

Trans Pacific Partnership Wall