The Rule of Law demands corporations be subordinate to government

June 20, 2013

The Trans-Pacific Partnership is a global corporate coup that undermines democracy and makes corporations more powerful than government.  It creates a “trade tribunal” system that allows corporations to sue governments for expected lost profits resulting from environmental, labor, health, consumer protection and other laws. The judges in the tribunals will be corporate lawyers on temporary leave from corporate job in order to rule on cases brought by corporations and then returning to their corporate job.  This rigged rule of law system will prevent countries from acting in the public interest and for the protection of the planet.  The TPP undermines the rule of law.

Article 1, Section 8, Clause 3, of the Constitution empowers Congress “to regulate Commerce with foreign Nations. . . .” The Obama administration has turned this constitutional power on its head by negotiating the TPP in secret without any congressional involvement but including 600 corporate advisers in the proces.  The Obama administration not sharing its proposals with the Congress or American people, and is not releasing text as it has been negotiated being less transparent than any previous president.

The Obama administration seeks to make this constitutional violation even worse by passing this secretly negotiated trade deal under “Fast Track” provisions, also known as Trade Promotion Authority, which would undermine the role of Congress and destroy the checks and balances of the Constitution.  Fast Track would allow the president to negotiate and sign the TPP and then Congress would only have an up or down vote with no committee hearings or amendments.

For too long people have been serving corporations, rather than corporations serving the people. If the TPP becomes law countries will be subservient to corporations under rules that prohibit many forms of regulation, require ever-green patent protections for pharmaceuticals, and create a rigged legal system that favors corporate profit over people and planet.  In addition, public services are defined as “state-owned enterprises” and because they receive benefit from government – as they are part of government – corporate interests will be able to sue claiming public services are unfair competition. Neoliberal economics seeks to privatize public services so that corporations can profit from governments that provide clean water, healthcare, transportation, retirement and other necessities of the people.

People who feared a “new world order” should fear the TPP because it creates a corporate rule of law that empowers transnational corporations and weakens democratic rule.  Rather than the people ruling through elected representatives, corporations will rule through the power granted to them by trade agreements.

Other trade agreements have had similar provisions and the results have been devastating.  In one case brought under NAFTA  a US company Lone Pine Resources is suing the Canadian government sued for more than $250 million due to lost profits from Quebec's moratorium on fracking, which prevents Lone Pine from fracking under the St. Lawrence River.  This is one example among many, “. . . corporations such as Chevron, Exxon Mobil, Dow Chemical, and Cargill have launched 450 investor-state cases against 89 governments, including the United States. Over $700 million has been paid to corporations under U.S. free trade agreements and bilateral investment treaties, about 70 percent of which are from challenges to natural resource and environment policies. Corporations have launched attacks on a range of public interest and environmental regulations, including bans or phase-outs of toxic chemicals, timber regulations, permitting rules for mines, green jobs and renewable energy programs, and more.” Even limits on the cigarette industry have been undermined by trade agreements and resulted in trade tribunal litigation against packaging requirements.

Expanding the right of corporations to sue in rigged trade tribunals further undermines the rule of law, democracy and national sovereignty.  Rather than “free market” trade agreements like the TPP, NAFTA and WTO, we should urge fair trade that empowers people and puts the planet and people before profits. 

The “Trade Trade Reform, Accountability, Development and Employment Act” is a more balanced approach that shifts toward improved trade that is fair.  It seeks to protect wages, health, the environment, human rights, food and consumer safety and essential services provided by governments.  It seeks to reverse the loss of jobs due to offshoring, the race to the bottom in wages, the damage to the environment as well as to family farms and the food supply.  The time is now for people to join together to stop the TPP and work toward a trade regimen that serves the people and planet, not corporate interests.

As immediate steps three steps are required:

  1. The Obama administration should release all propoals it is making as part of the TPP negoations.
  2. The Obama administration should release the text of all TPP sections that have been negotiated.
  3. The Congress should refuse to enact fast track, Trade Promotion Authority, so that the normal congressional process of committee hearings, testimony from witnesses and amendments can be followed.

The reason the TPP is being kept secret is because its provisions will be unpopular with the American people.  As the former trade representative, Ron Kirk, said the TPP would raise such opposition that it could make the deal impossible to sign. If a law is so unpopular that it must remain secret to pass then, in a democracy, it should not become law.

Kevin Zeese serves as Attorney General in the Justice Branch of the Green Shadow Cabinet.  This statement is one of over a dozen issued in support of the Green Shadow Cabinet's June 17th call for action against the TPP.