Fast track trade bill fails to correct asymmetric secrecy of trade negotiations

Today Senators Bacus and Hatch introduced fast track legislation in the Senate. The words transparent or transparency appear 17 times in the 107 page bill, but only twice in connection with "Trade Institution Transparency."

In a 98 word section, the Fast Track bill offers very general objectives as regards transparency, and does nothing to address the concerns expressed by several members of Congress and hundreds of academics and NGOs over the asymmetric secrecy of the trade negotiations, where private lobby groups have access to negotiating texts that are secret from the general public.

The brief section on trade negotiating objectives reads as follows:

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SEC. 2. TRADE NEGOTIATING OBJECTIVES.

(13) TRADE INSTITUTION TRANSPARENCY.—

The principal negotiating objective of the United States with respect to transparency is to obtain wider and broader application of the principle of transparency in the World Trade Organization, entities established under bilateral and regional trade agreements, and other international trade fora through seeking—

(A) timely public access to information regarding trade issues and the activities of such institutions;

(B) openness by ensuring public access to appropriate meetings, proceedings, and submissions, including with regard to trade and investment dispute settlement; and

(C) public access to all notifications and supporting documentation submitted by WTO members.

The bill also includes a Section 4. on consultations involving the Congress and the public and access to information. The provisions relevant to the public, and to the advisory board system are listed below. Note that the bill continues the dual tier system of deep access to negotiating texts to members of the trade advisory boards, and something less, probably much less, for the general public.

USTR says the "advisory committee system consists of 28 advisory committees, with a total membership of approximately 700 citizen advisors." The term "citizen advisors" is one way to put it, but most members of the advisory boards represent big corporations, or trade associations that have both US and foreign member companies. Here are the members of the USTR advisory committees: http://www.ustr.gov/about-us/intergovernmental-affairs/advisory-committees

SEC. 4. CONGRESSIONAL OVERSIGHT, CONSULTATIONS, AND ACCESS TO INFORMATION.

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(d) CONSULTATIONS WITH THE PUBLIC.—

(1) GUIDELINES FOR PUBLIC ENGAGEMENT.—
The United States Trade Representative, in consultation with the chairmen and the ranking members of the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, respectively—

(A) shall, not later than 120 days after the date of the enactment of this Act, develop written guidelines on public access to information

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regarding negotiations conducted under this Act; and

(B) may make such revisions to the guidelines as may be necessary from time to time.

(2) PURPOSES.—The guidelines developed under paragraph (1) shall—

(A) facilitate transparency;

(B) encourage public participation; and

(C) promote collaboration in the negotiation process.

(3) CONTENT.—The guidelines developed under paragraph (1) shall include procedures that—

(A) provide for rapid disclosure of information in forms that the public can readily find and use; and

(B) provide frequent opportunities for public input through Federal Register requests for comment and other means.

(4) DISSEMINATION.—The United States Trade Representative shall disseminate the guidelines developed under paragraph (1) to all Federal agencies that could have jurisdiction over laws affected by trade negotiations.

(e) CONSULTATIONS WITH ADVISORY COMMITTEES.—

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(1) GUIDELINES FOR ENGAGEMENT WITH ADVISORY COMMITTEES.—The United States Trade Representative, in consultation with the chairmen and the ranking members of the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, respectively— (A) shall, not later than 120 days after the date of the enactment of this Act, develop written guidelines on enhanced coordination with advisory committees established pursuant to section 135 of the Trade Act of 1974 (19 U.S.C. 2155) regarding negotiations conducted under this Act; and

(B) may make such revisions to the guidelines as may be necessary from time to time.

(2) CONTENT.—The guidelines developed under paragraph (1) shall enhance coordination with advisory committees described in that paragraph through procedures to ensure—

(A) timely briefings of advisory committees and regular opportunities for advisory committees to provide input throughout the negotiation process on matters relevant to the sectors or functional areas represented by those committees; and

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(B) the sharing of detailed and timely information with each member of an advisory committee regarding negotiations and pertinent documents related to the negotiation (including classified information) on matters relevant to the sectors or functional areas the member represents, and with a designee with proper security clearances of each such member as appropriate.

(3) DISSEMINATION.—The United States Trade Representative shall disseminate the guidelines developed under paragraph (1) to all Federal agencies that could have jurisdiction over laws affected by trade negotiations.

If there is going to be a debate over transparency, and the unequal access to negotiating text, people should ask for changes in these provisions.

One possible fix, a presumption that the negotiating texts shared with all countries in the negotiation be made public. Permit USTR to make exceptions to the general rule of transparency, but only after satisfying some test, and providing a ratonale for why sharing the text with corporate insiders but not the public serves the public interest.

Another possible fix is to modify the current policy of blocking FOIA requests to the emails from trade advisory board members. USTR now uses the advisory system to hid communications to and from corporate lobbies. Other agencies operate without this type of arrangement.