In Tuesday’s New York Times, law professor Margot Kaminski laid out a compelling case for increased transparency in the Trans-Pacific Partnership negotiations.  On Wednesday, John Murphy of the U.S. Chamber of Commerce offered a fairly convincing response in defense of confidentiality.  The problem is that—as is common in trade policy “debates”—they’re not talking about the same thing.  That’s frustrating to me because I think they’re both right.

Kaminski makes the point that the U.S. Trade Representative has been overbroad in what it deems classified material, that the current approach improperly privileges business lobbying over public interest groups, and that as negotiations cover more non-trade issues negotiators need more exposure and guidance from different people.

Murphy responds by noting that trade agreements are successfully increasing U.S. exports, that confidentiality in negotiations is both appropriate and helpful in achieving this outcome, and that systems are in place to ensure that all interested parties have input. 

Murphy’s concern is that “public disclosure of confidential negotiating texts would mean a weaker hand for U.S. officials at the negotiating table.”  For Kaminski, “it’s a question of whose input we’re getting on decisions that reach far beyond trade — into questions on the price of generic drugs or whether websites will have to monitor users online.”

Murphy is right about the value of confidentiality.  Trade negotiations are negotiations, which means the final agreement is the result of some necessary compromise.  Compromise is politically difficult, and negotiators need to know that they’ll be evaluated on the final product regardless of their initial positions.  In any event, we don’t know what’s in the agreement until it’s completed, and there will indeed be time after the negotiations conclude to debate the package.  Murphy’s also justified in being generally defensive about secrecy complaints, which often simply mask general antipathy toward trade liberalization.

But none of this really refutes Kaminski’s main argument.  To stretch the metaphor, she’s not calling for negotiators to show our playbook to the other team, she’s trying to make sure that the negotiators are actually on our team in the first place.

If trade agreements are simply about reducing protectionist policies like tariffs, quotas, and subsidies, then it makes perfect sense to give trade negotiators the leeway needed to reach the best deal.  The only policy question is whether free trade is good.  But today’s agreements, like the TPP, also cover other issues—issues where there is significant disagreement within the United States and where more isn’t always better. 

In particular, the TPP is going to set international intellectual property laws subject to enforcement through trade sanctions.  The TPP may also set international rules on minimum wage, maximum hours, and worker safety.  It may criminalize certain kinds of wildlife trade and fishing practices. 

U.S. trade negotiators are pushing these provisions without adequate input from domestic civil society.  The bias toward export-oriented business interests is making trade agreements economically less valuable and politically less viable.  In essence, the U.S. Trade Representative is using confidentiality to avoid engaging with the public on these issues, and that needs to change.

One way to do that, however, is through a legislative process that Kaminski specifically condemns—trade promotion authority.  Trade promotion authority gives Congress an opportunity to debate and establish the U.S. trade agenda through specific negotiating objectives.  Instead of opposing trade promotion authority, groups concerned about the goals of U.S. negotiators should work to set the right negotiating objectives.  They can even use trade promotion authority to impose specific demands for enhanced participation from public interest groups.

As long as trade agreements are being used to set regulatory policies, reasonable complaints about democratic legitimacy will be part of the debate.  So unless proponents are willing to accept a cleaner trade agenda focused more squarely on reducing protectionism, they will need to accept some form of increased scrutiny and broader participation in negotiations.