A pig in a poke

by John Q on March 2, 2015

I’m doing some work on the proposed Trans Pacific Partnership Agreement, currently being negotiated in secret by diplomats and business representatives from 12 countries. Two facts of interest
(a) Australia’s Trade Minister Andrew Robb is claiming that a final agreement might be reached by mid-March. While this looks over-optimistic, it implies there is a near-final text
(b) Obama has sought “fast-track” negotiating authority, but there is no sign that this is going to happen soon, given that quite a few Democrats oppose the deal outright, and many Republicans are hostile to anything that would give Obama more authority.

The idea of “fast track” is that the Administration cuts a deal and Congress is bound (by having agreed to the fast-track rules) to give it a Yes/No vote, with no amendments. The assumption (I think) is that, if amendments were permitted, they would proliferate to the point where the legislation would fail to implement the agreement with other parties, who might then back out. Of course, the result is that Congress is, in effect, buying a pig in a poke. Given the unlikelihood of an outright rejection of such a massive deal, they have to accept whatever Obama puts before them. The flip-side is can no individual Congressperson has to explain why they didn’t seek protection for whatever local ox might be gored by the deal: they can respond that they had no choice.

My question is: Suppose that the final text is agreed and made public before fast-track authority is granted. What would be the chances of Congress agreeing to a Yes/No vote, and what difference would it make? There are a lot of issues to be raised here about international relations, trade agreements and US politics, none of which I have a clear feel for. So, I’d be interested to hear what others think.



Kindred Winecoff 03.02.15 at 5:47 am

“My question is: Suppose that the final text is agreed and made public before fast-track authority is granted.”

It won’t be, for the reasons you suggest. And if it is then it won’t be the “final text” anyway.


adam.smith 03.02.15 at 6:17 am

I think TTIP seems like a terrible idea, but–stepping away from the specific agreement–my understanding is that the equivalent of fast-track is actually pretty universally the case for countries other than the US.*
And I’m not sure how else you can have multilateral negotiations at all–if, say, 100 parliaments can individually request changes to a negotiated agreement, how are you ever going to get a final product?

I don’t know any trade negotiators, but I do know people involved in environmental/climate talks and the potential role of the US Senate is a constant source of frustration.

*but I’m no expert on this and if that’s not the case I’d be happy to learn.


The Raven 03.02.15 at 6:17 am

Hard to say. On the one hand, the Senate Republicans (the House does not vote on treaties) would like to hand Obama a black eye. Since a 2/3s majority is required to ratify a treaty at least some Democrats would have to sign on. On the other hand, money talks, and nowhere moreso than in our very wealthy House of Lords, er Senate.


John Quiggin 03.02.15 at 6:30 am

@Adam Smith This isn’t the case in Australia, and I doubt that it is in most parliamentary systems. The constitution gives the federal parliament the power to pass laws implementing treaties, but these are just ordinary bills. The Aust-US FTA legislation was amended to restrict “evergreening” of pharmaceuticals, and the US Congress accepted the deal on those terms, though with a lot of grumbling – the package as a whole was a big win for the US, at Australia’s expense.


John Quiggin 03.02.15 at 6:34 am

@Kindred. (a) You’re right that if the agreed text is revealed without US fast-track authority, it won’t be final, which raises big questions for the other parties.

(b) If I read you correctly, you’re saying that the US won’t sign off in the talks until fast-track is passed. Is that right?


adam.smith 03.02.15 at 6:39 am

hmmm. But in typical parliamentary systems, party discipline is super high (and divided government doesn’t exist by definition), so maybe this is just my perception because–clearly with exemptions as per your example–it’s de facto equivalent to fast track? I’m most familiar with the German case, and I’m not aware of a single individual treaty parliament even tried to amend.


John Quiggin 03.02.15 at 6:47 am

@6 Australia has a bicameral system in which the government rarely has a majority in the Upper House. Iron discipline in the Lower House, but still divided government in a sense.

Also, there has traditionally been great latitude in the interpretation of the treaty power. The main effect is to allow the federal government to legislate in areas that would otherwise not be within its jurisdiction. But it also means that the process is more complex than passing a bill incorporating the terms of a treaty into Australian law.


PlutoniumKun 03.02.15 at 6:59 am

Slightly off-topic, but relevant to the issue of getting parliamentary approval, the Naked Capitalism blog has been quite good at analysing the TPP from the Japanese perspective – it argues that the US has horribly mishandled the negotiations making it virtually impossible for Abe to get it approved (he wants it, almost nobody else in Japan agrees).



Kindred Winecoff 03.02.15 at 7:01 am


Re (b), I guess it depends on what you mean by “sign off”. The USTR could signal provisional acceptance of the parameters of a deal before fast track is authorized, but by definition the executive branch cannot agree to anything until it has the authority to do so. And it won’t get that authority until Congress is pleased with what it’s hearing from USTR. Gaming this out is a little complex, but usually the executive is able to build the necessary coalition if he decides he wishes to do so.


David J. Littleboy 03.02.15 at 1:02 pm

I don’t see how TPP can pass in Japan. It’s really unlikely that Abe will throw Japanese agriculture under the bus (it’s his main political base), and the US seems insistent on zero tariffs on rice, sugar, and beef (only beef is even vaguely possible). Also, there’s discussion of health insurance and pharmaceuticals being included, and I can’t see how that makes any sense in the Japanese health care system. Japan has incredibly draconian price controls on medical services (a root canal + crown set me back around US$100, with insurance only kicking in another US$233; I don’t see how the dentist makes a living (answer: by services that aren’t covered by (and thus price controlled by) insurance)) and health insurance is through two major (national + company provided) systems and a bunch of other minor ones (public service employees may be a separate system; something like that). There just isn’t any room/meaning for private health insurance. (There are “private heath insurance” products, but they’re scams.) And the Japanese are extremely aggressive about moving to generics. With Japan already having a higher percentage of elderly than the US will ever have (really!) and that percentage projected to rapidly increase, there’s no way Japan can afford US prices on pharmaceuticals.

So it looks like Kabuki. A very elaborate and formal theatrical production in which everyone but the Americans in the audience knows how the story ends…


Soullite 03.02.15 at 1:54 pm

Honestly, if this happens, I am perfectly find with political violence, up to and including the targeting of American politicians.

I, and a whole lot of other people, are fucking sick and tired of these g0d-damned games.


TheSophist 03.02.15 at 3:17 pm

One of my top students, a young man with a very libertarian bent, gave an in-class presentation on this about a month ago. He started by saying “I read an article in The Guardian about this, and decided to research it to find out what that liberal rag wasn’t saying. But the more I read, the more convinced I became that the liberal rag was right.”

I tell this anecdote to suggest that opposition to Fast Track (and to the TPP as a whole) will come from some rather odd coalitions. I am suspicious, however, that when push comes to shove money will (as noted by others above) win.

Another anecdata point (and perhaps more relevant to the question asked by Prof. Quiggin) – President Obama talked aboutfast track for TPP in this year’s SOTU. After the speech, one of the questions that was asked on every network was “What has the President talked about that Congress might actually pass?” Both Chuck Todd (representing Beltway CW) on NBC and (I think) Paul Ryan on Fox immediately answered TPP.


John Garrett 03.02.15 at 4:15 pm

I don’t see how either fast track or TPP itself can pass in the US, especially if we on the left are aggressive and vigilant (and trust our enemies on the right to be equally so). I can’t imagine a right wing red state republican voting for unlimited authority of Obama etc. to deliver a take it or leave it bill, so no fast track. And in this Senate TPP will drown in amendments, most likely including an end to Obamacare and reversal for immigration, if not establishing the kingdom of Christ on earth. If anything else happens we need to push our few remaining courageous dems (I’m talking to you, Liz Warren) to do the necessary and filibuster it to death.



Mr Punch 03.02.15 at 4:19 pm

Because of the requirement of Senate approval of all treaties, the US system does give the executive (President/administration) less exclusive control in this area than in some other countries, such as the UK and France. And in fact the Senate has been known to reject agreed-upon treaties – the League of Nations is probably the best-known case. More often, the Senate simply doesn’t act; there are currently 36 treaties, dating back as far as 1948, that have been submitted to the Senate but not voted upon.


TM 03.02.15 at 5:50 pm

It is hard to imagine a GOP-controlled Senate to give Obama fast track authority and yet they have made noises in that direction. How will they justify it to their base? It seems absurd but if it happens, it will put to rest any speculation on who runs Washington. It’s the donors, stupid.

The treaty now also negotiated (mostly in secret) with the EU, which triggered massive protests over the leaked plan to turn over national sovereignty to corporate-run special courts, is another mystery. There aren’t many things even more unpopular than these treaties right now and yet the EU governments – all 27 of them (or whatever the number now is) – seem hell-bent on pushing through. Why?


hix 03.02.15 at 5:53 pm

My guesstimate with not much background is that considering the limitations of the US political system, fastttrack is the best possible way to go. In Europe, if a government gets a formal fasttrack mandate or not should not matter for any practical purpose.

Again very speculative, i think theres a lot of just eat whatever we negotiated going on for all practical purpose, and more so outside Germany in many European countries with regards to parliament vs government when it comes to international negotiations of any kind.


TM 03.02.15 at 5:54 pm


TM 03.02.15 at 6:00 pm

It should be mentioned that EU countries don’t negotiate any trade treaties any more. Forget that. Negotiations are led by the EU commission. How the product of such negotiation then becomes ratified by member states is an interesting question but I suspect in practice, it’s very similar to fast track.


DME 03.02.15 at 6:19 pm

Under fast tract rules not only are amendments out of order; debate is limited, and filibusters are disallowed.


cassander 03.02.15 at 8:37 pm

The reason president’s like fast track rules isn’t so much prevent changes to the treaty under consideration, but prevent Congress from holding a must pass bill hostage. The standard pitch is “gee Mr. President, I’d love to vote for your treaty, but the people in my district are an ornery lot and they don’t like it. Of course, if I could just tell them that I got something to go with the treaty, that would probably be enough, and it just so happens that I’m sponsoring an amendment. perhaps you could support it?” These amendments are usually non-germane, about local pork or pet issues, but they turn the whole affair into a giant drain on presidential time and authority.


Main Street Muse 03.02.15 at 9:31 pm

“Given the unlikelihood of an outright rejection of such a massive deal, they have to accept whatever Obama puts before them.”

GOP is licking its chops to say no to everything Obama wants. Can’t see Congress blindly accepting anything Obama puts before them! Congress has held pretty much everything hostage in recent years – can’t see why this would be any different.


adam.smith 03.02.15 at 10:21 pm

@DME – well, the filibuster part isn’t terribly relevant given the nature of contemporary filibusters (and the fact that treaties need 2/3 majorities in the Senate anyway).


ifthethunderdontgetya™³²®© 03.02.15 at 11:05 pm

Never underestimate the craven depths to which our elected reps. will sink in pursuit of corporate graft.


John B 03.03.15 at 12:40 am

In the US, the TPP like all other recent trade agreements will be a strange animal called a congressional-executive agreement, not a treaty. So it needs only a simple majority of both houses of Congress to pass. That’s usually much easier to secure than a 2/3 vote of the senate — which is why they do them. So far, these things seem to be constitutional.


Val 03.03.15 at 4:46 am

This getting away a little from JQ’s question about US response here, but I hope it can be excused – any Australians reading this, you might like to consider signing this petition http://choice.good.do/tpp/save-our-health-laws-release-the-text/

It wouldn’t be useful for non-Australians to sign this, but you may find it of interest to read. For one thing, our country has been relatively interventionist in using the legal system to protect us against health risks (tobacco plain packaging is only one example), and this is under threat from the TPP. Libertarians may cry “nanny state”, but the interventionist approach seems to work quite well in many ways.


john Redican 03.03.15 at 8:12 pm

What would anyone expect to be the fruit of secret negotiations, conducted by and for business interests, and enabled by politicians in their thrall? It’s not as if Labor or Environmental concerns were even considered. TPP is just one more example of plutocracy in action, and the secrecy surrounding its composition is the first clue to its evil intent.


Ebenezer Scrooge 03.04.15 at 2:33 am

John B. is right. You can call it a “treaty”, if you have 2/3 of the Senate, or call it a “statute”, if you have half of each house. The effect is pretty much the same, although some on the right are trying to delegitimate things called “treaties.” American sovereignty, y’know.


Mike from Ottawa 03.06.15 at 6:48 am

Folk who want to find out about things like the investor-state provisions characterized above as “turning over national sovereignty to corporate-run special courts” might check out actual texts that will be similar to the TPP and US-EU texts (cuz trade negotiators don’t like reinventing wheels any more than anyone else – compare the revised WTO Agreement on Government Procurement and the GP chapter in the Canada EU agreement if you want to see it in action) in the NAFTA (Section B at https://www.nafta-sec-alena.org/Home/Legal-Texts/North-American-Free-Trade-Agreement#A1120 ) or the similar provision in the Canada – EU CETA (article Article x-22 at http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/text-texte/10.aspx?lang=eng ).

Folk interested in seeing whether what George Monbiot says about Canada and NAFTA is accurate might usefully peruse the Department of Foreign Affairs, Trade and Development (DFATD) page at http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/gov.aspx?lang=eng . Such perusal will find no basis for any particular trepidation on the part of Canadian officials on account of the threat of investor-state challenge. And let’s face it, folks, sometimes, the investor is in the right – as when Canada, on supposed health grounds, banned imports of a gasoline additive but allowed its continued production within Canada and use. It was the kind of clearly discriminatory action nobody but those absolutely opposed to any agreements to open markets to foreigners should have any qualms about.

It’s not as thrilling going over these things as reading the Guardian article (and the Guardian is one of the few media outlets I have much time for) but I think folk need information and there is much more at hand than George Monbiot’s article would have folk think. Having that information, I don’t find the stuff he’s raised in the article linked above as alarming as he does.


Bruce Wilder 03.06.15 at 3:13 pm

So what do you think, folks? Nothing to see here? Just move along, folks?


Cranky Observer 03.06.15 at 3:18 pm

= = = Bruce Wilder 03.06.15 at 3:13 pm
So what do you think, folks? Nothing to see here? Just move along, folks? = = =

Have the major copyright interests lost a significant congressional or court battle since Bill Clinton took office? I think we’re going to get the TPPA no matter what we say, write, or do, the unconstitutional nature of secret corporate star chambers notwithstanding.


TM 03.06.15 at 3:29 pm

Monbiot (in http://www.monbiot.com/2013/11/04/a-global-ban-on-left-wing-politics/, already dated) quotes “one Canadian government official” as follows:
““I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law. Virtually all of the new initiatives were targeted and most of them never saw the light of day.”” The quote is from an old article in The Nation. Monbiot doesn’t say anything about the position of the current Canadian government, which is well known to be extremely right wing and extremely pro-corporate an anti-environment. It is totally unclear what your references are supposed to prove and it is also totally unclear why the national courts should be unable to deal with truly discriminatory regulations.

It’s not rocket science. Do we want secret tribunals staffed by corporate lawyers, lacking any legitimacy and totally unaccountable to the public, with the power to invalidate national legislation enacted by democratically elected governments?


Mike from Ottawa 03.06.15 at 8:09 pm

@ TM: Certainly your approach is not rocket science where actually paying attention to the details and making an effort to inform yourself would be de rigeur. Your approach of eschewing effort in favour of just taking a jouralist as authority certainly is easier than rocket science.

Had you bothered, you’d have found that in Canada, of the 11 investor-state disputes that got to a final order (more than a dozen have been abandoned many without the actual complaint being filed), the government won 8 and in one of the three losses, the investor was successful only on a minor point and got abut 1% of what they’d originally claimed. In the gasoline additive case, the government lost in a case where it obviously should have. That leaves one case out of 11 that might support your alarm. But 1 out of 11 is thin gruel. And it is perhaps telling that Mr Monbiot didn’t mention any actual cases that have produced a result yet, referring only to cases still in progress and which may ultimately fail to support his alarm.

Also, if you’d looked at the texts I linked to, you’d have found the norm is not for secret tribunals but for an open process and if you’d looked at the cases page, you’d have found the essential documents there on line. You might also find that the tribunals, at least in Canada’s NAFTA cases, have generally been professors (generally in international law). And, of course, the results of the cases are not what one would expect from your “secret tribunals staffed with corporate lawyers.

As to why parties to these agreements don’t just rely the courts of the country they allege is breaching the agreement, well, that answers itself.

So, basically, you and Mr Monbiot appear to be wrong on most of your alleged facts regarding how these tribunals work and what their results are and thus the outrage you are feeling is unwarranted at this time. Now, I don’t expect anyone to just take my word for it, but I’ve supplied some evidence and done some of the work. Let’s see you do something more than wave Mr Monbiot around some more.


John Quiggin 03.06.15 at 8:11 pm

Folk keen to be reassured by Mike from Ottawa might check out the attempt to stop plain packaging of cigarettes in Australia. The tobacco industry ginned up a string of trade actions from such major cigarette producers as Ukraine and Hong Kong. They knew they had no case – the purpose was to scare off poor countries that might follow the Australian example


MPAVictoria 03.06.15 at 8:19 pm

Man I so wish I could post on this thread as it touches my work. But that is EXACTLY why I will not post anything. I need money for food and shelter.


Billikin 03.06.15 at 9:16 pm

“In the US, the TPP like all other recent trade agreements will be a strange animal called a congressional-executive agreement, not a treaty. So it needs only a simple majority of both houses of Congress to pass.”

If so, then perhaps some of its odious provisions might be unenforceable on the states? For instance, if California passes a regulation that a foreign corporation deems hurts its profitability, and brings a suit for compensation before an arbitration panel, and wins, the US gov’t might not be able to force the state to pay up? What say legal scholars?


purple 03.07.15 at 3:53 pm

It’s an imperialist document that is locking out China, India, and Russia. It’s going to wall up a sphere of influence for shrinking US global economic power. Nothing good can come out of that mindset.

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