Apple Pie and Transparency? I Think Not
By William Reinsch
I have a confession to make. I’m not a big fan of transparency. Even though it is routinely up there with apple pie as a beloved staple of Americana, I think it is a mistake to accord it much importance, particularly in the context of trade negotiations. I say that with some chagrin because back in the day I was an enthusiastic founding member of Common Cause, which championed government in the sunshine. However, after twenty years on Capitol Hill and nearly eight more in the executive branch, I came reluctantly to the conclusion that sunshine was not always what government needed to grow good policies.
Let’s begin by taking the idea at face value — that transparency is really about, well, transparency. Letting people know what is going on. That’s a popular concept, but it is not really compatible with the negotiating process because publicly revealing a position immediately does two things: (1) it forces the other parties to react and puts them on the defensive. No negotiator worth his salt is going to agree publicly with his counterpart’s offer, however attractive it might be. (2) At the same time, the concrete immediately begins to set around the feet of the person making the public proposal. Having made an offer, it is very difficult to move away from it in public without criticism. The result is sharpening rather than softening of positions with the accompanying grandstanding that makes ultimate agreement more difficult to achieve.
An exception is transparency with Congress. That is required by law, and it makes sense given Congress’ constitutional responsibility for regulating interstate and foreign commerce. It is also politically wise since trade agreements must ultimately be approved by Congress, and members of Congress unhappy with their access to information are less likely to vote the way the administration wants. There is still a downside, as Congress is notoriously leaky — both Members and staff — but the Constitution demands that particular price be paid.
That leaves transparency with the “public.” And who are they? In the context of trade negotiations they are not the broad-based general public, who consistently place trade well down on the list of things important to them. The trade “public” is a collection of activists — primarily NGOs — representing labor, consumers, environmentalists, and political progressives. These are largely people who have never supported a trade agreement and are never going to support a trade agreement. For them, transparency is not simply about obtaining information — it is a weapon they can wield in their campaign against any and all trade agreements. For them, demanding transparency serves two purposes:
1) Because it is a process issue, it gives them something to complain about even before negotiations begin and in the absence of any factual reasons to oppose an agreement. Since their standard of adequacy for transparency is never met — see below — they always have a reason to oppose an agreement above and beyond its substance.
2) If they succeed in obtaining even a modicum of transparency, the result is information they can then use to oppose an agreement. No U.S. offer is ever good enough, and no negotiated outcome will ever be acceptable. The sooner they can obtain information about what is on the table, the better able they are to organize opposition to the agreement, even before it is concluded. We saw that very clearly with TPP, and we are about to see it again with NAFTA.
Underlying both these tactics is their concept of what transparency means, which is not the plain meaning of the term. For the activists it is not just information about what is going on, it is agreement with what they want. Celeste Drake of the AFL-CIO, in an interview with Politico, provided some revealing insight:
"Access doesn't necessarily equal influence," she said. "Are any conversations that we have real, meaningful consultations where advice is not just listened to, but somehow considered and incorporated and respected?"
In other words, for these groups access and transparency are not about exchanging views and mutual understanding of each other’s positions, they’re about winning — having your policies adopted. Since what they want in some respects always exceeds what any U.S. administration is willing to offer and also what other countries are willing to accept, the malevolent circle is closed. Demands are made which cannot be met, so opposition is justified. Even if some of them are met, which is usually the case, lack of transparency can still be used to justify opposition anyway.
Sadly, this cycle has become common practice with trade negotiations. Government cannot and should not meet the transparency demands of the activists, and that, in turn, provides one more reason to oppose the agreements they were always going to oppose. The real public deserves better than that, but they’re not likely to get it.
William Reinsch is a Distinguished Fellow with the Stimson Center, where he works principally with the Center’s Trade21 initiative.