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Talking Trade blog

Transparency, congress and the TPP

Published 14 January 2015

The EU Commission’s decision (discussed in the Talking Trade blog post of January 12, 2015) to publish proposal texts was prompted by increasingly strident complaints about secrecy in the TTIP negotiations.

These concerns follow similar criticisms about a lack of transparency in the Trans-Pacific Partnership (TPP) negotiations.  Claims of silence from the TPP talks are not new.  From the earliest days of negotiations in 2010, some groups have been fighting against the “excessive secrecy” surrounding the talks. 

Such language has only escalated in the nearly 5 years that bargaining has been taking place.  For example, on January 8, US Congresswoman Rosa DeLauro (D) held a press conference where she denounced the lack of transparency in TPP negotiations. 

Politicians, of course, frequently make statements that do not entirely match the facts on the ground.  In DeLauro’s case, as a sitting member of Congress, she has complete and total access to every element of the TPP texts.  She does not need to go across to the US Trade Representative’s (USTR) office either, as she can summon someone with the exact documents she requires at any time.  A staff member would likely sit with her and explain whatever specific questions she might have with the materials.

In addition, USTR has held over 1,600 briefings for Congress over the course of negotiations.  The Congresswoman could have attended these meetings where she would have been able to provide her specific inputs to whatever sections or clauses she felt necessary.

For the past several rounds of TPP negotiations, key Congressional committee staff members have been traveling with the negotiators to each meeting.  These staff members (and, presumably, their elected bosses) have extensive knowledge of the contents of the agreement. 

To prevent leaks of information, though, USTR has imposed a set of specific rules for the TPP texts.  These limit the ability of all Congressional staff members to view the texts.  Instead, only staff members of the Senate Finance Committee or House Ways and Means Committees with security clearances are allowed to read the texts.  Congress members are not allowed to have or make copies. 

These rules have probably made it more difficult for members of Congress to analyze the whole document.  However, if all 535 members of Congress and their staff had access to texts, it might just as well have been posted directly to the Internet.

A remarkable number of people have had access to all or portions of the texts in the United States, since “cleared advisors” are allowed to review proposals and materials.  It is true that the bulk of the cleared advisors are industry representatives, with smaller numbers of labor, environmental groups or academics on the list.  Obama administration rules to dilute the power of lobbyists also affected the composition of cleared advisors.  But it also means that USTR has not created the pages of the TPP rulebook in a vacuum without input from Congress and others.

Nor are these rules unique to the TPP.  Similar rules were first outlined by Congress in 1974, when legislators created provisions that used to be called fast track and are now called Trade Promotion Authority (TPA).  In fact, at the time of the original fast track, the advisory committee included 700 industry representatives appointed by the President.  Just a handful of Congress members were entitled to review materials at all and nothing was to be provided to the public.

The content of the final TPP agreement has also benefitted from a unique element of these negotiations—the “stakeholder” meetings attached to negotiating rounds.  All sorts of industries, associations, and activist groups were able to give presentations directly to negotiating officials from across the TPP members.  These stakeholder meetings were held from about Round 6-Round 19, giving firms and others an opportunity to express a wide variety of views about the negotiations.

It is not clear yet how much the stakeholder meetings influenced the negotiating texts or final positions.  But it did provide a novel way for government officials across the set of participating countries to gather feedback and suggestions.

As noted in the earlier post, there is a continuum between releasing texts and sharing no information at all.  I am opposed to releasing even draft texts as this severely limits the ability of a negotiator to find creative compromises and solutions to satisfy the needs of the parties.  But USTR might have done a better job communicating about the TPP. 

However, for all the complaints about a lack of transparency in the TPP from people based in Washington, DC, information about the talks has been even more scarce in the other 11 participating countries.  The other members have varying degrees of formal feedback mechanisms available for providing input into the talks, but no one has had the degree of access provided to U.S. companies and others in Washington.  In many cases, foreign companies and groups have gone to DC to present their information to the Americans, rather than try to reach their own representatives.

If it were not for American outreach efforts and communication through advisors and lobbyists that have been picked up by media outlets of all kinds, there might be zero news on the TPP today. 

For a demonstration of the relative openness of the TPP, try searching for news on the Regional Comprehensive Economic Partnership (RCEP).  This is a trade deal that brings together 16 countries in Asia, including China, Japan, South Korea, India, Australia and New Zealand with the 10 members of ASEAN.  Without cleared advisors, Congressional briefings, or stakeholder events, there is almost nothing at all getting out from the RCEP talks after 6 rounds of negotiations. 

So, although communication on the TPP could certainly be improved, claims of excessive secrecy are overblown—especially those criticisms coming from members of Congress.

© The Hinrich Foundation. See our website Terms and conditions for our copyright and reprint policy. All statements of fact and the views, conclusions and recommendations expressed in this publication are the sole responsibility of the author(s).

Dr. Elms is Head of Trade Policy at the Hinrich Foundation in Singapore.  Prior to joining the Foundation, she was the Executive Director and Founder of the Asian Trade Centre (ATC). She was also President of the Asia Business Trade Association (ABTA) and the Board Director of the Asian Trade Centre Foundation (ATCF).

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