It is imperative that there is public awareness of the terms of the TPP, its implications, and its potential harms. Our analysis urges a deep consideration of the threats to the wellbeing of people in all sectors of society by the TPP agreement. While we have identified important points of the TPP, the reality is that, due to Fast Track, Congress only requires an up or down vote on the TPP, meaning the deal must be accepted or rejected in its entirety—a reality that illustrates the problematic nature of Fast Track itself. In this light, our analysis here raises the following specific three approaches to engage in the forthcoming US political debate about the TPP and whether it should be approved or rejected by the US Congress.
- Question the TPP on ethical terms: As outlined throughout the report, the ethical case against the TPP—an affront to democratic participation, transparency, and public accountability—is a strong one with far-reaching socio-economic implications. The Government Procurement chapter in the TPP, for example, requires national governments to spend stimulus funds to create jobs elsewhere, and prevents such institutions from using their limited funds on stimulus at-home. That is why the American Federation of Labor and Congress of Industrial Organizations recommended omitting the Government Procurement chapter from the TPP.82 Locating central pieces of the TPP that undermine public accountability and shift power from communities to corporations, are key to making sure that governments are accountable to their own people and not to corporations.
- Examine the TPP on Constitutional terms: Perhaps the strategy with the greatest potential is that of challenging the TPP in terms of its constitutionality. There are two possible areas where the TPP might be vulnerable:
- The Arbitration Provision: The first weak point is the arbitration provision of the TPP. Specifically, Chapter 9 of the agreement sets out a series of rules and provisions for investor claims and suits, as outlined above.83 In general, the TPP allows investors (which are defined at the beginning of Chapter 9) to bypass federal courts (and therefore US legal protections, potentially) and go directly into arbitration to seek monetary damages. The concern is that, although treaties are considered, under the Constitution, part of the “supreme law of the land,” a trade agreement may or may not be able to assign private arbitrators the judicial function consistent with Article III of the US Constitution. Although the Supreme Court has never ruled on this particular question, there are a number of previous decisions that raise serious doubts about it.84 Additionally, the US Justice Department issued an opinion two decades ago on whether and when arbitration can replace court adjudication. The US government tries to mask these concerns by noting a number of protections, including transparent proceedings and permitting amicus brief submissions.85
- The Standing Doctrine: The second general issue is “Standing,” apparent in the definition of who can bring claims or is a party at the beginning of Chapter 9 of the agreement. Specifically, as outlined in PART II, only investors have standing under the ISDS ar- The Trans-Pacific Partnership: Corporations Before People and Democracy HAAS INSTITUTE FOR A FAIR & INCLUSIVE SOCIETY 28 bitration system (i.e., the ability to bring claims for breaches of certain investment protections to the tribunal), which means that affected people, like workers or the public, can not bring claims for breaches. Significantly, this provision potentially contravenes US Standing Doctrine and is a key weak point for a major part of the agreement.
- Challenge the institutional roots of the TPP: Evan Greer, the Fight for the Future campaign director, perhaps stated it well when he argued that “[a]t this point, the only true course of action, for members of Congress who still believe in democracy, would be to completely defund and do away with the office of the United States Trade Representative (USTR).”86 The USTR is responsible not only for developing and recommending US trade policy to the president, it is also responsible for conducting trade negotiations between the US and other nations, and for coordinating trade policy domestically. Yet, according to Greer, the USTR is “largely responsible for the TPP and its extremist contents,” and is recognized by many as a key part of the revolving door between industry and government. Pinpointing the institutional origins of the TPP in agencies such as the USTR, as well as focusing on corporations with undue control over these government institutions, is key to engaging in the forthcoming US political debate about the TPP and whether it should be approved or rejected by the US Congress.
Ultimately, our findings about the TPP reveal it as the latest iteration of a global trend of political power being modeled almost entirely after the market-based economy, of national governments selling out the interests of the people they serve in order to instead serve the interest of corporations, and an agreement that, if passed, would threaten key democratic principles in the United States and would have harmful effects on the livelihood of huge numbers of people across the world.
- 82. “Initial Analyses of Key TPP Chapters.”
- 83. TPP Full Text, “Chapter Office of the United States Trade Representative, https://ustr.gov/sites/default/files/TPP-Final-Text-Investment.pdf
- 84. Constitutional Issues In Federal Arbitration, Memorandum for John Schmidt, Associate Attorney General, September 7, 1995. https://www.justice.gov/olp/constitutional-issues-federal-arbitration
- 85. “Investor-State Dispute Settlement (ISDS)”; “Chapter 9: Investment.”
- 86. “Wikileaks Releases Final Negotiated Text of TPP Intellectual Property Chapter Exposing Grave Threat to Internet Freedom, Free Speech, Access to Medicine.