By: Jedediah Purdy | Professor, Duke Law School; Author, 'A Tolerable Anarchy'
Democracy is the problem with the Trans-Pacific Partnership (TPP) trade negotiation. It's the problem for TPP supporters because the trade deal has been secret so far -- known to the public only through leaks and rumors -- and because the Fast Track authorization that the Obama Administration wants would box Congress out of meaningful input on the treaty.
As Yale Law School international trade scholar David Grewal has pointed out, the TPP is about national regulation of domestic economies, issues like environmental, labor, and consumer safety law that are at the core of self-government. It's outlandish that this sovereign power is being bargained away in secret, with the final deal dropped before Congress in a take-it-or-kill-it package. So TPP critics have found that democracy is by far their easiest argument. In fact, given how much of the negotiations remain secret, just about the only informed argument they can make is that the secrecy itself is a problem. And it is a terrible problem. It should make the whole backroom arrangement illegitimate, at least until we all know what is in it.
But democracy is also a problem for TPP opponents, and in a subtler way. Consider: Who actually thinks the US Congress would be able to hold a reasoned debate on a complex trade agreement and deliver a sound judgment reflecting the will of the people? Who even believes that Congress holds reasoned debates, ever, or that there is such a thing as the will of the people, rather than fleeting gusts of public opinion and internet mobbing? If you think the TPP is a good thing, you definitely do not want to put it through the political process. TPP supporters don't, by and large, believe they are trying to put one over on a wise but unwary public: they believe democracy is broken, the public is ignorant and renders irrational decisions, and that Congress is no better (though sometimes teachable, thanks to lobbyists).
And who, honestly, doesn't believe something like this about US democracy today? Who really wants to submit their highest value, or the project they have worked on for decades, to this democracy? Really?
The press to fast-track TPP is a sellout of democracy, but it is also a symptom of a deeper collapse of faith in American self-government. Increasingly, people who want to get something done find ways around democratic lawmaking: private investment, nonprofit social mobilization, executive actions, lawsuits in the courts, anything but going to Congress. The TPP sellout of democracy has attracted so many supporters among well-intentioned, sophisticated, realistic people because, frankly, such people are used to disregarding democracy when they want to accomplish something important.
Acting like we have no democracy to protect -- in fact, believing we have none -- has vicious circular effects. The deep reason to be skeptical of the TPP isn't just that it an unlabeled pill; it's that once we swallow it, we surrender some of the power to shape our own economy to advance our own ideas of fairness, safety, solidarity, sustainability, and so forth. The life and aspirations of a democratic community should come before its economy, and give their shape to the economy -- not the other way around. That was certainly FDR's view during the New Deal, and LBJ's when he proposed the Great Society. But who really believes it now? Who wants the regulatory laws that these guys, the politicians now in power, and the people they listen to, would make?
From what we know of the TPP, it works as an economic policy straitjacket, locking its members into a shared set of market rules. It even brings in "investor-state dispute settlement" -- a fancy term for allowing foreign corporations to sue governments whose lawmaking interferes with their profits, outside the courts of law, in suits resolved by private arbitrators. All of that is fundamentally anti-democratic. It reverses the basic and proper relationship between a political community and its economy. But plenty of Americans are seeking just that reversal. Not all of them believe the market is perfect and magical; but they believe it works, more or less, and that democracy does not. They are more than half right that this democracy, "our democracy" (a phrase that's hard to say without irony), does not work. And that is the reality that makes their anti-democratic agreement so plausible.
So the movement against the TPP has to be more than that. It has to be organically and explicitly linked to a pro-democracy movement: one that works against money in politics, for stronger antitrust laws to reduce concentrated economic power, against the economic inequality that pulls Americans apart and isolates them in their insecurity, and for access to good education and political empowerment for everyone in this country.
It needs to be said that, although this is easy to type on a laptop, it is obviously very hard to do. There are constitutional barriers -- the current Supreme Court loves money in politics and seems to despise Congress -- and big structural drivers of inequality. Strengthening democracy would mean building organizations of working people for mutual education and advocacy -- unions, that is, but they are mostly too broken and hard-pressed to play that role today. It would mean finding ways to close the gap between US citizens and the millions of illegal immigrants who work in this economy with no protection, and to make citizenship itself less divided between black and white, insider and outsider. But most basically, it would mean finding ways to make self-government, including economic self-government, worth defending for ordinary people, and credible and muscular enough that elites would not congratulate themselves on their sophisticated realism while selling it out.
It's one of the famous clichés of American life that Benjamin Franklin, asked what the Constitutional Convention had created, replied "A republic -- if you can keep it." Anyone asked what the TPP's opponents are fighting for should reply, "A democracy -- if we can build it." Defeating the TPP would keep open the space for that building. Of course, then we would still have to build it.
Originally Published: Huffington Post