Congress' Fast Track to Bad Law
Fast tracking the Trans Pacific Partnership Agreement (TPP) in Congress excludes any opportunity for meaningful public input about the agreement and leads to bad policy, Elon Law Professor David Levine says in this week’s Elon Law Now faculty commentary.
Levine has made presentations to the negotiators at several negotiating rounds for the Trans Pacific Partnership Agreement. His commentary follows:
“Congress appears poised to pass Trade Promotion Authority, otherwise known as ‘fast track,’ for the Trans Pacific Partnership Agreement (TPP). If this happens, it will likely close the door to any possibility of meaningful public input about TPP’s scope and contours. That’s a major problem, as this "21st century trade agreement" encompassing around 800 million people in the United States and eleven other countries, will impact areas ranging from access to medicine (who gets it) to digital privacy rights (who has them). But, unless you are a United States Trade Representative (USTR) "cleared advisor" (which almost always means that you represent an industry, like entertainment or pharmaceuticals), or, under certain limited circumstances, an elected official, your chief source of TPP information is WikiLeaks. In other words, if Julian Assange gets his hands on a draft TPP text, you might see it, once he decides that it should be made public. Of course, you’ll have to hope that the copy that you see is current and accurate.
“There have been no – not one – formal releases of the TPP’s text. Thus, this 21st century agreement has been negotiated with 19th century standards of information access and flow. Indeed, TPP has been drafted with a degree of secrecy unprecedented for issues like intellectual property law and access to information. Some degree of secrecy and discretion is necessary in any negotiation, but the amount of secrecy here has left all but a few groups in the informational dark.
“This process, if you want to call it that, defies logic. Margot Kaminski has labeled the entire process 'transparency theater.' Perhaps most problematically, ‘transparency theater’ has caused widespread opposition to TPP, like mine, that might otherwise not have materialized. Standing alone, the TPP's negotiation process is sufficient to cause opposition. Additionally, the process has seemingly led to bad substance, which is a separate reason to oppose TPP. Imagine if bills in Congress were treated this way?
“Meanwhile, fast track will mean that Congress will simply vote yes or no on the entire deal. Therefore, fast track will exacerbate that informational vacuum, and the public will not be able to do much more than accept whatever happens. In essence, an international agreement negotiated with no meaningful public input – and to some unknown degree written by a few industries -- is about to be rushed through the domestic legislative process. [Note: I submitted testimony in the case referenced in the previous hyperlink by Yale Law School’s Media Freedom and Information Access Clinic].
“At this point, if you are at all concerned about the TPP’s process, the best thing that you can do is contact your Representatives and urge them to vote “no” on fast track. You could also join the call to formally release the TPP’s text before fast track is voted upon (i.e., right now). Finally, you could help assure that two other important international agreements currently in negotiation but in earlier stages – the Transatlantic Trade and Investment Partnership and Trade in Services Agreement – are negotiated more openly. How? By paying attention, and calling your elected officials and the USTR when things remain murky. I’ll have much more to say about these processes in the coming months.”
David S. Levine is an Associate Professor of Law at Elon University School of Law and an Affiliate Scholar at the Center for Internet and Society at Stanford Law School (CIS). He is a 2014-2015 Visiting Research Collaborator at Princeton University's Center for Information Technology Policy (CITP). He is also the founder and host of Hearsay Culture on KZSU-FM (Stanford University), an information policy, intellectual property law and technology talk show for which he has recorded over 200 interviews since May 2006.
Elon Law Now is a weekly series of faculty commentary on legal current affairs.