March 22, 2014 | By Parker Higgins

Bringing Transparency and Democracy to the US Trade Representative

When it comes to trade policy, we've learned over and over that leaks are no substitute for transparency. Leaks can reveal inconvenient facts about what negotiators are advancing in the public's name; they can help inform and mobilize activists to push back against egregious provisions that haven't yet been finalized; they can expose lies and half-truths in public statements by officials; but they can't provide the kind of real accountability that true transparency-by-design can.

In the case of the Trans-Pacific Partnership (TPP), and the more recent Transatlantic Trade and Investment Partnership (TTIP, or TAFTA), the governments of other countries appear to be coming around to this fact. Even the United States Trade Representative, which has long operated under the veil of as much secrecy as it can get, is bumping up against the difficulties of trying to put together public policy without including the public.

EFF has been on the front lines of demanding transparency in these negotiations. In part, that's because the public deserves a transparent and accountable process in the negotiation of agreements made in its name. Even if there were no substantive problems with these agreements, the shadowy nature of their development would be troublesome.

But there are substantive problems, and they are major ones. To borrow a phrase from Louis Brandeis, sunlight must be a disinfectant in the trade process, scouring these incomplete agreements of clauses and provisions that can't withstand public scrutiny. Senator Elizabeth Warren expressed this best in a letter to the White House last June:

I have heard the argument that transparency would undermine the Administration's policy to complete the trade agreement because public opposition would be significant. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States. I believe in transparency and democracy and I think the U.S. Trade Representative (USTR) should too.

Sadly, the USTR seems to be the last ones to understand this basic fact of public policy. European political leaders are pushing back against US demands for secrecy in the US-EU agreement, TTIP. Further, a leaked confidential legal opinion from the Council of the European Union indicates the TTIP must be considered a "mixed agreement," and so requires approval from each of the national EU parliaments. That's practically the opposite of the fast track authority that the Obama administration and the USTR are pushing for domestically: instead of a "trust us" approach, this agreement must be one that everybody can actually read and agree to.

Compare that, too, with the secrecy demands the US is trying to impose on the negotiations themselves. European member states are demanding the text of US proposals, and the USTR reportedly offers only the possibility that representatives of these governments might be able to see the proposals in a secured reading room in Belgium.

There are plenty of indications that, even for the USTR, this commitment to secrecy is not sustainable. For TTIP, the contrast between its anti-transparency demands on trade negotiations and, say, its position on EU regulations that affect US companies, is comically stark. A public agency can only get away with that kind of hypocrisy for so long.

The dissonance between public policy and secret negotiations may be causing TPP to reach that breaking point. Elected lawmakers, tech companies, public interest groups, and many, many more constituencies have publicly demanded more transparency. The fast track authority that the Obama administration and the USTR have counted on during negotiations has hit major snags—and if the current trends continue, these obstacles may be insurmountable.

Sunshine Week is a good occasion to turn our eyes—and our transparency searchlights—to the places where the government has shunned public attention. In the case of the USTR, that requires looking for more than just the kind of document dump that comes from a leak or a whistleblower. It means including the public in public policy, reforming a culture of secrecy, and embracing real transparency and accountability.

You can find all of EFF's Sunshine Week posts linked here.

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