201608

August 31, 2016 4:42PM

European Commission Launches Shakedown of Apple, Asserts Low Taxes Are “State Aid”

Working the world of public policy, I'm used to surreal moments.

Such as the assertion that there are trillions of dollars of spending cuts in plans that actually increase spending. How do you have a debate with people who don't understand math?

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Or the oft-repeated myth that the Reagan tax cuts for the rich starved the government of revenue. How can you have a rational discussion with people who don't believe IRS data?

And let's not overlook my personal favorite, which is blaming so-called tax havens for the financial crisis, even though places such as the Cayman Islands had nothing to do with the Fed's easy-money policy or with Fannie Mae and Freddie Mac subsidies.

These are all example of why my hair is turning gray.

But I'll soon have white hair based on having to deal with the new claim from European bureaucrats that countries are guilty of providing subsidies if they have low taxes for companies.

I'm not joking. This is basically what's behind the big tax fight between Apple, Ireland, and the European Commission.

I did several TV interviews on the topic yesterday, all of which can be seen here, but the Wall Street Journal did a great job of summarizing the issue today. Let's look at that editorial, starting with the European Commission's galling decision to use anti-trust laws to justify the bizarre assertion that low taxes are akin to a business subsidy.

Even by the usual Brussels standards of economic malpractice, Tuesday’s €13 billion ($14.5 billion) tax assault on Apple is something to behold. ...Apple paid all the taxes it owed under existing tax laws around the world, which is why it hasn’t been subject to enforcement proceedings by revenue authorities. ...Brussels now wants to use antitrust law to tell Ireland and other low-tax countries how to apply their own tax laws. ...Brussels is deploying its antitrust gnomes to claim that taxes that are “too low” are an illegal subsidy under EU state-aid rules.

Arial Apple Cartoon

This is amazing. A subsidy is when government officials use coercion to force taxpayers (or consumers) to pay more in order to line the pockets of a company or industry. The Export-Import Bank would be an example of this odious practice, as would ethanol handouts.

Choosing to tax at a lower rate is not in this category. It's a reduction in government coercion.

That doesn't necessarily mean we're necessarily talking about good policy since there are plenty of preferential tax laws that should be wiped out as part of a shift to a simple and fair flat tax.

I'm simply pointing out that lower taxes are not "state aid."

The WSJ also points out that it's not uncommon for major companies to seek clarification rulings from tax authorities.

Brussels points to correspondence between Irish tax officials and Apple executives to claim that Apple enjoyed favors not available to other companies, which would be tantamount to a subsidy. But all Apple received from Dublin, in 1991 and 2007, were letters confirming how the tax authorities would treat various transactions under the Irish laws that applied to everyone. If anyone in Brussels knew more about tax law, they’d realize such “comfort letters” are common practice around the world.

Indeed, the IRS routinely approves "advance pricing agreements" with major American taxpayers.

This doesn't mean, by the way, that governments (the U.S., Ireland, or others) treat all transactions appropriately. But it does mean that Ireland isn't doing something strange or radical.

The editorial also makes the much-needed point that the Obama White House and Treasury Department are hardly in a position to grouse, particularly because of the demagoguery and rule-twisting that have been used to discourage corporate inversions.

As for the U.S., the Treasury Department pushed back against these tax cases, which it rightly views as a protectionist threat to the rule of law. But it’s hard to believe that Brussels would have pulled this stunt if Treasury enjoyed the global respect it once did. President Obama and Treasury Secretary Jack Lew have also contributed to the antibusiness political mood by assailing American companies for moving to low-tax countries.

Amen.

It's also worth noting that the Obama Administration has been supportive of the OECD's BEPS initiative, which also is designed to increase corporate tax burdens and clearly will disadvantage US companies.

A story from the Associated Press focuses on the European Commission's real motive.

The European Commission says...it should help protect countries from unfair tax competition. When one country's tax policy hurts a neighbor's revenues, that country should be able to protect its tax base.

Wow, think about what this implies.

We all recognize, as consumers, the benefits of having lots of restaurants competing for our business. Or several cell phone companies. Or lots of firms that make washing machines. Competition helps us by leading to lower prices, higher quality, and better service. And it also boosts the overall economy because of the pressure to utilize resources more efficiently and productively.

So why, then, should the European Commission be working to protect governments from competition? Why is it bad for a country with low tax rates to attract jobs and investment from nations with high tax rates?

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The answer, needless to say, is that tax competition is a good thing. Ever since the Reagan and Thatcher tax cuts got the process started, there have been major global reductions in tax rates, both for households and businesses, as governments have competed with each other (sadly, the US has fallen way behind in the contest for good business taxation).

Politicians understandably don't like this liberalizing process, but the tax competition-induced drop in tax rates is one of the reason why the stagflation of the 1960s and 1970s was replaced by comparatively strong growth in the 1980s and 1990s.

To conclude, it's worth noting that Apple is just the tip of the iceberg. If the EC succeeds, many other American companies will be under the gun.

And when politicians - either here or overseas - raise taxes on companies, never forget that they're actually raising taxes on worker, consumers, and shareholders.

P.S. Just in case you think the Obama Administration is sincere about defending Apple and other American companies, don't forget that these are the folks who included a global corporate minimum tax scheme in the President's most recent budget.

August 31, 2016 1:44PM

Is the Public Confused about School Financing?

After last week’s release of Education Next’s 2016 survey of education opinion (see Jason Bedrick’s and Neal McCluskey’s responses), Phi Delta Kappa yesterday released its own poll (see Neal’s take on that here). Once again, the poll sheds light on the public’s understanding (or misunderstanding) of school financing.

In an open-ended question, Americans for the 15th consecutive year designated “lack of money/financial support” the biggest problem facing public schools. Perhaps as a result, most Americans—53% in support to 45% opposed—favored increasing property taxes to boost school funding. However, there was broad skepticism (47% of respondents) that increases would spur quality improvements. What explains this apparent inconsistency?

It turns out support for increased property taxes is correlated with how respondents ranked local public schools. Those that viewed their public schools more favorably were more likely to support property tax hikes and be confident that increased funding would improve schools. Conversely, those that rated local schools lower were more resistant to hikes and skeptical that increased funding would result in improvements. While two-thirds of those that gave their local schools an A grade were confident that increased funding would help, only 17% of those that gave their schools an F agreed.

In what PDK calls its most “lopsided” result, Americans overwhelmingly preferred keeping a failing school open to closure, 84% to 14%, but 62% favored replacing teachers and administrators to increasing funding in the turnaround. Americans, it seems, agree that increased funding will not improve underperforming schools. Furthermore, 26% of those that gave their schools a failing grade thought school closure was the more appropriate response, compared to only 13% of the general public.

Listing funding as a problem also does not necessarily result in support for increased property taxes. In the latest poll, 19% of respondents cited school funding as the biggest problem, down from a record high of 36% in 2010 and 2011, the peak of the recession years. But the Education Next poll demonstrates that support for property tax hikes declined dramatically during those years.

Another reason so many respondents cited “lack of funding” as a major problem? The open-ended nature of the question allowed up to three responses, increasing the likelihood that many respondents would include school funding as one of their answers. That only 19% of respondents included it seems low given that that majority of respondents favored property tax increases. Moreover, the EdNext pollsters theorize that support for increases in funding rises in election years, when this issue is most hotly debated, and it’s therefore unsurprising that it was seen as the biggest problem in public education.

An important caveat to these findings is that support for increased funding dramatically drops when an individual is informed of real spending. In the EdNext poll, uninformed respondents estimated average per-pupil spending at $7,020, a little more than half the actual average of $12,440. When uninformed respondents were asked if they favored an increase in school funding, 61% supported the idea; when a separate group of respondents was told the actual per-pupil expenditure, support dropped to 45%.

These results lead to a number of conclusions. First, support for increased schooling taxation comes disproportionately from the wealthy, already well-performing public schools, where parents are confident that spending is put to good use. The poll results shouldn’t be seen as supporting property tax hikes in communities with failing schools where the effectiveness of more funding is suspect. Second, because the public appears uncertain about funding as a tool to turn around schools, perhaps a better alternative is to give parents more control over their children’s education via school choice policies, as minority groups favor. Finally, these studies together reinforce the importance of a well-informed public. Support for spending increases drops for all groups—teachers, Republicans, Democrats, and the general public—when given accurate information.

Despite large numbers of respondents favoring property tax increases, the PDK poll demonstrates a broad skepticism of more funding for failing schools. And there is no powerful  link between spending and academic performance, making it heartening that the public appears intuitively aware of this.

August 31, 2016 1:40PM

“Consider Some History”

As a battered and weary country peers into the hellmouth of Election 2016, contemplating the “bleak choice between a ‘liar’ and your ‘drunk uncle,’” along come two of (Anglo-) America’s premier public intellectuals with a plan for getting honest, sober policies out of our next president. “We urge the next president to establish a White House Council of Historical Advisers,” Niall Ferguson and Graham Allison write in this month’s Atlantic. Modeled on the Council of Economic Advisers, the CHA would bring together the country’s finest historical minds, backed by a professional staff, to help close the “history deficit” at 1600 Pennsylvania.

It’s one of those buzzworthy notions that seems ingenious on first airing—a presidential “Dream Team of Historians”!—but gets less shiny the closer you examine it. 

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Arthur Schlesinger, Jr., speaking truth to JFK's power!

Arthur Schlesinger, Jr.: speaking truth to JFK's power[/caption]

“I think there would be more than enough work for a council of applied historians,” says Harvard’s Allison. What kind of work? As Ferguson and Allison envision it, the Council could help presidents avoid unforced historical errors, like the invasion of Iraq. When Bush “chose to topple Saddam Hussein,” they write, “he did not appear to fully appreciate either the difference between Sunni and Shiite Muslims,” and "he failed to heed warnings that the predictable consequence of his actions would be a Shiite-dominated Baghdad beholden to the Shiite champion in the Middle East—Iran.”

It’s a fair critique, but neither Ferguson nor Allison is in a great position to make it. It wasn’t what either of them were saying at the time.

During the war fever of 2002-03, Ferguson wasn't urging the administration to rethink the Iraq adventure, lest they inadvertently empower Iran--he was cheering the disaster on. “By showing them just how easily Saddam’s vicious little tyranny could be overthrown,” he wrote in the Daily Mail (“Empire of the Gun,” June 21, 2003), “Mr. Bush has made it clear to the leaders of Iran, Syria and Saudi Arabia that he is in deadly earnest. If their countries continue to sponsor terrorism as all three notoriously do, Saddam’s fate could befall them too. Such saber-rattling evidently works.” Further: “Historians may well look back on 2003 as a turning point in the troubled politics of the Middle East. And they will give much of the credit for that transformation to the courageous and undoubtedly risky strategy adopted by President George Bush.” Just the hard truths Bush needed to hear!

In fairness, Ferguson could sometimes be heard to strike a cautionary note: “Consider some history,” he urged those advocating a time-limited occupation: “the British ran Iraq for the better part of 40 years.” As a ”fully paid up member of the neoimperialist gang,” Ferguson worried about America's imperial "stamina." A "successful" occupation might take a million troops, he warned in 2005, plus “around 10 years to establish order in Iraq, 30 more to establish the rule of law, and quite possibly another 30 to create a stable democracy.” But like Madeleine Albright, he thought “the price is worth it.” If Bush had taken a dose of Ferguson's "applied history," we'd have ended up spending even more blood and treasure on a futile project.

Graham Allison was much less exuberant about the Iraq War, but he wasn’t against it. When you’ve got “rattlesnakes in your backyard, backing off and hoping they slink away is not the answer,” he wrote in October 2002. Even so, Allison believed that Saddam’s WMD arsenal was so fearsome we might need a crash program to bolster America’s biodefenses before launching the attack: “Have you gotten your anthrax and smallpox vaccinations yet?” Over the next 14 years, he's spent much of his time predicting that jihadists are about to graduate from crotch-bombs to functional nukes.

So when Ferguson and Allison write in the Atlantic that “applied historians will never be clairvoyants with unclouded crystal balls,” they’re putting it mildly, especially where present company is concerned. If they’d had the president’s ear at the time, he’d have gotten extra doses of alarmism and delusions of grandeur, pathologies that weren’t exactly in short supply in the Bush White House.

In fact, there was a top-flight Middle East scholar, fully up to speed on the differences between Sunnis and Shiites, who had the administration’s attention in the run up to the war. That was Bernard Lewis, “Bush’s historian,” who "deliver[ed] spine-stiffening lectures to Cheney over dinner in undisclosed locations" and pro-war thinkpieces in the Wall Street Journal.

Lewis also had thoughts about Iran, and let them fly in another WSJ op-ed, "August 22," published on August 8, 2006. In it, he warned that the Iranians might nuke Israel within the next two weeks, to mark the anniversary of “the night flight of the prophet Muhammad .... to heaven and back.” “This might well be deemed an appropriate date for the apocalyptic ending of Israel and if necessary, of the world,” Lewis wrote. No crystal ball there either, thankfully. 

So one potential problem with the CHA idea is that the president would get to pick the historians. Personnel is policy, and presidents might staff the Council with scholars who feed them even crazier ideas than they've already got.

Still, it's probably a safer bet that the CHA wouldn’t have much influence at all. In one of the recent stories on the Ferguson/Allison proposal, Rep. Tom Cole (R-OK), a former history professor, makes the obvious point that “the council would have value only if the president wanted its advice.” Presidents have mostly used their pet scholars as ambassadors to academia and the chattering classes: they’re valued less for their influence on executive-branch decisionmaking than for their ability to put an intellectual veneer on whatever it is the president’s already decided to do. If implemented, the CHA might be yet another useless appendage to the Executive Office of the President, an institutionalized kaffeeklatsch of court historians.

Even that might not be totally harmless, however. Presidents already have an unhealthy obsession with their legacies—wandering the halls, gazing at the portraits (sometimes even talking to them), and wondering how they’ll stack up in the rankings game: “In 1996 Clinton privately grouped his presidential predecessors into three tiers, then spent a long Sunday morning with consultant Dick Morris discussing what he could do to join the top group."

The academic consensus on that question seems to be that, to become a great president, you need to dream big, break stuff, and “leave the presidency stronger than you found it.” Given historians’ generally demented judgments about which presidents belong in the top tier, we should probably be grateful Bill didn’t have a Council of Historical Advisers around to consult.

August 31, 2016 1:19PM

Trial by Jury on Life Support

Earlier this month, the New York Times ran a headline "Trial by Jury, a Hallowed American Right, Is Vanishing."  This is very true.  It's a trend that we at Cato have been lamenting for many years.  Despite the clear language of the Sixth Amendment, that the accused shall enjoy the right to trial by jury in "all criminal prosecutions," the government manages to oversee a system where jury trials are quite rare--only about 1 percent of the criminal cases will be decided by juries.

Fortunately, there's a new book that calls attention to this problem, The Missing American Jury, by Professor Suja Thomas.  Entrepreneur Mark Cuban recommends the book, saying jury trial "is a right that you never think you will need ... until you do."  Precisely.  Beyond the criminal area, the administrative state is also trampling the right to jury trial in the civil area

For a podcast interview with Suja Thomas, go here.

For related Cato scholarship, go here and here.

August 31, 2016 11:48AM

After Welfare Reform, Immigrants Thrived Without Federal Benefits

Twenty years ago last week, Congress enacted the most extensive welfare reform law since the 1960s, the Personal Responsibility and Work Opportunity Reconciliation Act. Cato scholars have long championed a particular aspect of the reform bill that excluded recent legal immigrants from federal means-tested public benefits and have argued for extending the law’s restrictions. Welfare reform was successful: immigrants thrived without government support.

The theory behind welfare reform was that depriving benefits from immigrants would incentivize those already here to find jobs and encourage only those who wanted to work to come. This theory has appeared to work out in practice. Following the law’s enactment, immigrants who were most likely to be targeted by its restrictions responded by working more, which decreased the prevalence of poverty in their households.  

While the 1996 reform restricted welfare in some ways for both native-born citizens (natives) and naturalized citizens, the law imposed the harshest restriction on noncitizens, barring them from any means-tested public benefits until they became eligible to apply for citizenship—5 years after receiving lawful permanent residency in the United States. The Census Bureau’s Current Population Survey details the unemployment among noncitizens and native-born or naturalized citizens.

All groups saw reductions in unemployment post-welfare reform, but noncitizens saw the greatest reduction in unemployment from 1996 to 2016. In 1996, natives had an unemployment rate that was 3 percentage points lower than the rate among noncitizens. By 2016, the rates for each group had converged. While unemployment among naturalized citizens also declined during this time, the noncitizen unemployment dropped much further (3.4 percent compared to 0.9 percent).

Figure 1: Unemployment Rate among Noncitizen, Native-Born and Naturalized Citizens

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Source: Current Population Survey

Unemployment did not decline as a result of immigrants abandoning the labor force either. In fact, the labor force participation rate (LFPR) among noncitizens rose rapidly after 1996. The native LFPR was nearly 2 percentage points above that for noncitizens in 1996. In 2016, it was 3.7 percentage points higher for noncitizens. Again, naturalized citizens improved, but not as greatly (0.6 percentage points).

Figure 2: Labor Force Participation Rate among Noncitizens, Native-Born and Naturalized Citizens           

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Source: Current Population Survey

But the most important trend is this: not only did poverty decline among noncitizens from 1994 to 2014, they were the only group of the three citizenship classes to see a decline in poverty. Noncitizens experienced an 5.1 percentage point decrease in their rate of poverty (an 18.4 percent drop in their 1996 rate), compared to a 2.1 percentage point increase for naturalized citizens (20.2 percent growth) and a 0.3 percentage point increase for natives (2.6 percent growth). Because this poverty statistic includes all cash public benefits, this means that noncitizens performed best even after welfare payments to citizens.

Figure 3: Poverty Rate among Noncitizen, Native-Born and Naturalized Citizen Households         

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Source: Current Population Survey, March Supplement

If these increases in employment and labor force participation were partially the result of welfare reform, we would expect two conditions to hold. First, the main effect of the law would be felt in the first five years after enactment as the first cohorts of immigrants enter without benefits. After five years, the population of immigrants becoming eligible for benefits each year roughly matched the population entering without benefits, so the rate of welfare receipt among legal immigrants would remain roughly constant.

And this is exactly what we see. Nearly all of the gains in labor force participation, unemployment, and poverty occurred between 1996 and 2000. Of course, the absolute gains during that time were a result of the late 1990s booming economy, but the relative gains for noncitizens compared to naturalized and native-born citizens also occurred during this period and were maintained later, just as the theory predicts.

The second prediction is this: the gains should have occurred most strongly among noncitizens who arrived within the prior five year period because, as mentioned before, noncitizens are ineligible for federal benefits only in their first five years in the country. Unfortunately, the Current Population Survey data on year of entry that I found using its Data Ferret tool only extends through 2004, but this slice reveals that noncitizens who were barred from federal benefits once again did better than other noncitizens.

In 1996, the unemployment rate among recent immigrants was 5.5 percentage points more than the unemployment rate among the established immigrants. By 2004, the difference was just a half a percentage point. The vast majority of the gains occurred in the recent immigrant group.

Figure 4: Unemployment Rate among Noncitizens Who Arrived in Prior 5 Years and Other Noncitizens    

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Source: Current Population Survey, March Supplement

The same pattern can be seen in the labor force participation rate data. Noncitizens of both types improved from 1996 to 2004, but immigrants barred from benefits did better. Recent immigrants were 8.4 percentage points less likely to be working or looking for work in 1996 than established immigrants. They were 5.3 percentage points less likely to do so in 2004.

Figure 5: Labor Force Participation Rate among Noncitizens Who Arrived in Prior 5 Years and Other Noncitizens 

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Source: Current Population Survey, March Supplement

Noncitizen outcomes reflect their increased employment. Those without access to public benefits saw the greatest reduction in poverty of any group in the United States. From 1996 to 2004, the poverty rate among noncitizens who arrived in the prior five years declined 9 percentage points compared to 5 percentage points for other noncitizens.

Figure 6: Poverty Rate among Noncitizen Households Whose Head of Household Arrived in Prior 5 Years and Other Noncitizen Households 

 

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Source: Current Population Survey, March Supplement

The theory is not complicated by the fact that the trends for noncitizens outside of the five-year bar were also positive (though much less so). Other research has shown that noncitizens who were eligible for benefits also used them less following the 1996 act. Social scientists have debated the reasons for this “chilling” effect—confusion over the law or community norms could have a role—but in either case, they also appear to have benefited from the law.

The unambiguous lesson of this story is that welfare reform did not decimate the immigrant poor. It is impossible to know for sure the full reasons for these trends, but although exceptions undoubtedly exist, it is clear that the vast majority of immigrants can thrive without federal benefits. The United States could financially afford to accept many more immigrants if it further restricted such benefits, allowing it to be even more welcoming to another generation of hardworking immigrants. 

August 31, 2016 10:37AM

Trump’s Trade Deficit Obsession

My previous attempts at asking a Trump trade adviser directly about trade policy failed. I'm now going to try another approach: Interpreting something surprising two other Trump advisers said.

Here's what Wilbur Ross and Peter Navarro wrote recently:

The saddest fact here is that Hillary Clinton doesn't know the difference between a good trade deal and a bad one. Exhibit A is the Central American Free Trade Agreement (CAFTA-DR).

In her economic speech in Detroit, Clinton bragged that she voted against the one multilateral trade deal that came before the Senate while she was there. That was indeed CAFTA-DR, a multilateral deal involving the U.S. along with Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and the Dominican Republic.

Here's what Clinton did not confess to: She was wrong to oppose CAFTA-DR. In 2014, we had a favorable trade in goods balance with the CAFTA-DR countries of $2.7 billion. By 2015, that jumped to $5 billion. This pattern continued in the first half of 2016 with a surplus of $2.4 billion.

Did you catch that?  Trump's trade advisers are praising a U.S. trade agreement.  That doesn't sound very Trump-like, as Trump has been saying NAFTA is a "disaster" and has been calling the Trans Pacific Partnership (TPP) the "rape" of our country.  

So why do they like the CAFTA-DR?  Because in 2014 (9 years after the deal went into effect), there was a U.S. surplus in trade in goods with the various members of CAFTA-DR.  That by itself tells them it was a good deal. 

They follow this up with their typical criticism of NAFTA and the US-Korea FTA, complaining that these agreements led to a trade deficit:

Now what about the very poorly negotiated trade deals Hillary Clinton did support? Take NAFTA, which she lobbied for and her husband, former President Bill Clinton, signed in 1993. At the time, our trade in goods with Mexico was roughly in balance, with a small surplus of $1.7 billion. Today, we run a trade deficit in goods of roughly $60 billion — an astonishing leap. 

...

NAFTA is hardly a bad trade deal outlier in the Clinton oeuvre. As Secretary of State, Hillary Clinton helped draft the South Korea Bilateral Agreement, describing it as "cutting edge." She was right. It cut 75,000 American jobs, according to the EPI, rather than the 70,000 gain promised by the White House. Meanwhile, our trade deficit with South Korea has doubled.

So the argument seems to be this: There are good trade agreements that lead to trade surpluses and bad trade agreements that lead to trade deficits. A good negotiator can get you an agreement with a surplus; with bad negotiators, you will end up with a deficit.

In reality, this is complete nonsense. These agreements were all negotiated by basically the same people (the U.S. Trade Representative's Office), and they all say basically the same thing: They all lower tariffs; they all open services and procurement markets to some degree; they all protect intellectual property; and they all have rules on investor protection. There wasn't some tricky maneuver the U.S. trade negotiators carried out it in the CAFTA-DR context to get a trade surplus, but forgot to use in the other trade agreements.

So why the variation in trade flows between agreements? Well, it's complicated. These trade numbers actually fluctuate quite a bit from year to year.  See below for tables showing the U.S. trade balance over the years with several CAFTA-DR countries:

Trade in goods balance with Costa Rica

Trade in goods balance with Dominican Republic

Trade in goods balance with Nicaragua

There are a lot of reasons for these fluctuations. Among other things, there are overall trends in the global economy and in specific national economies; and there are the decisions of private actors operating in the marketplace (it is these actors who are the ones actually doing the trading), which affect particular sectors over time. Thus, citing a trade surplus with CAFTA-DR countries -- especially when it focuses on only the brief period 2014-2016 -- as a reason for the success of the agreement vastly oversimplifies the impact of trade agreements on trade flows. Again, it is not the skill of the CAFTA-DR negotiators vs. the incompetence of the NAFTA or US-Korea FTA negotiators that led to the different results here.  As noted, it was basically the same people on each.  This is not like baseball. Trade negotiators do not have an off year and negotiate a bad trade agreement one year, but then come back a couple years later and have a career year by negotiating a good trade agreement.

But Trump's advisers don't realize that, probably because they don't really know much about the substantive details of trade agreement.  They are simply looking at U.S. trade deficits or surpluses that arise after the fact, which generally matter very little (as my colleague Dan Ikenson has explained), and certainly don't matter much at all in the context of trade between the U.S. and individual countries.

August 30, 2016 5:18PM

RIP, TTIP?

U.S. Trade Representative Michael Froman is having a bad week.  First, Senate Majority Leader Mitch McConnell put the kibosh on lingering prospects that his chamber would consider ratification of the Trans-Pacific Partnership deal this year.  Then Germany’s economy minister proclaimed the 3-year-old Transatlantic Trade and Investment Partnership negotiations had “de facto” failed, with the French trade minister promising to pursue formal termination of the talks – adding that “the Americans give nothing or just crumbs” (which puts the USTR beneath Marie Antoinette, who at least offered cake). 

 

Whether McConnell is being coy in hopes of extracting concessions from the administration on TPP is unclear, but either way the likelihood is approaching certainty that ratification of the Pacific trade deal will become the responsibility of the next president and Congress.  For reasons given here and here, I’m bullish on that outcome within two years.

 

But the TTIP is a different story.  Although the negotiations are not officially dead, they might as well be. Talks were doomed from the outset, laden with too many intractable issues, too many red lines, a thorough lack of realism concerning the time and effort required for success, and a profound asymmetry in the desire to get a deal done. With U.S. negotiators focused on completing the TPP, the EU’s embrace and commitment to the TTIP became a case of unrequited love.  With each EU overture, the U.S. negotiators could play hard to get.  And they did.

 

Now, the United Kingdom’s likely departure from the EU complicates matters further, with uncertainty about the future composition of the EU impeding proper evaluation of the expected tradeoffs from a prospective TTIP. So, while the prevailing uncertainty likely means TTIP stasis for the next couple of years, Brexit would give U.S. negotiators even more leverage in TTIP than they already have. The possibility of a US-UK free trade agreement or a UK accession to the TPP would undoubtedly shift TTIP dynamics further in favor of U.S. negotiators – and give the UK added leverage in negotiating its own post-Brexit relationship with the EU.

 

TTIP isn’t dead. It’s in a coma. For it to have any hope of recovery and real success – an outcome with real liberalization that is – a restoration of some semblance of symmetry in demand for that outcome is necessary. With the existing imbalance, it's better to have no deal at all because the misguided objectives of negotiators are to open foreign markets as much as possible, while keeping their own as closed as possible. Negotiators with leverage are more likely to succeed at keeping their own markets closed, depriving their fellow citizens of the real benefits of trade. For Americans to realize the most important benefits of trade liberalization, its negotiators must be matched up against foreign negotiators with approximately the same strength (or leverage). When the foreign trade negotiators don't have enough leverage, U.S. consumers and import-consuming industries lose.

 

For any TTIP outcome to be considered successful, the deal must tackle U.S. restrictions on competition in shipping (repealing the Jones Act), commercial air services, and government procurement projects. Trillions of dollars of annual economic activity in the United States is provided by domestic suppliers facing no foreign competition, which represents an enormous drag on U.S. growth.  In the TTIP negotiations to date, the United States hasn't budged an inch to accommodate any liberalization in those areas.  Until that is no longer the case, the TTIP should be considered a failure.

 

When the TTIP negotiations were launched in 2013, I warned in this paper that the talks included the seeds of its own destruction and that a successful outcome would require a new approach:


As great as the benefits may be, the TTIP was not borne of any genuine enthusiasm for the enterprise. In Europe, it was seen as a last resort. Frustrated by the failures of monetary policy and restricted by the imperative of fiscal austerity, policymakers were looking for something—anything—to embrace as a potential economic tonic. Whether they actually thought TTIP likely to bear fruit is an entirely different matter. They wanted something to behold as evidence that Greece did not represent Europe’s fate. Potential voter wrath, political backlash, and stalemate–historically effective deterrents to initiating transatlantic trade talks–took a back seat to the affirmative optics of embracing some plausible initiative that might steer Europe from the abyss.

For U.S. policymakers, the main motivation for launching TTIP was to assuage EU concerns that the United States had written her off in its “pivot” to Asia.

 

Other rationales for pursuing TTIP include the argument that the world needs the United States and European Union to reassert global economic leadership at a time when no other country or group of countries is willing or able to do so. Another is that there is a race to establish global production standards and TTIP, representing half the world’s output, presents an opportunity to establish them here and now. A third ex-post rationale is that by establishing disciplines on issues where other trade agreements are silent—issues like currency manipulation, the operations of state-owned enterprises, local content rules, and others—the United States and EU could establish rules that China and others would eventually have to heed.

 

It is within this context that TTIP emerged. But none of those rationales–pursuing TTIP as a last resort, assuaging hurt feelings, establishing standards, disciplining China and others–seem likely to provide the motivation for negotiators and governments to dig deep and remain committed enough to make difficult choices that may carry political consequences. As the talks drag, will governments remain committed to the goals? Will governments motivated by the “last resort” rationale continue to invest seriously in the negotiations if their economies experience growth and the political costs of TTIP no longer look so necessary to incur? Already there have been signs of retreat from the ambitious goals articulated at the outset.

 

From the outset, negotiators erred by setting a 2014 completion date for the negotiations. There is absolutely no plausibility to that deadline and, frankly, failure to amend the timetable with realistic deadlines will only undermine the credibility of the undertaking with a public already skeptical of trade negotiations.


There are dozens of issues on the table of varying complexity that will likely take several years to resolve. Rather than have a single deadline for a single undertaking, the negotiators should announce that their intention is to achieve a multi-tiered agreement that yields multiple harvests at established time intervals. Some analysts have referred to the TTIP as a “living agreement,” although a common understanding of that concept is not evident nor, to my knowledge, have the governments or their negotiators used this characterization in any official context. They should. And it should work something like this.

Negotiators would take stock of the issues on the table and rank them in order of importance to a successful TTIP conclusion. They would then rank those same issues in terms of order of difficulty to resolve. Based on averaging and some agreed upon weighting of those two sets of rankings, negotiators would identify what they and their counterparts see as the most important and least important issues, as well as the most difficult and least difficult issues to resolve. That exercise would produce a road map for how to proceed.

When the dust settles and greater certainty emerges, the United States and EU (and UK) might consider relaunching the TTIP negotiations along these lines. But the parties should come to the table with a genuine willingness to liberalize everything (including sacred cows) because that is what will generate the interest, excitement, and leverage to achieve a really successful outcome.