Secrets and influence in trade negotiations: Stephen Jacobi discusses the role of non-governmental advisers in US trade policy-making.

• Author: Jacobi, Stephen
• Position: Report

US trade policy has been criticised for giving undue weight to the views of advisers from outside government. The formal advisory system dates back to 1974 and today draws on representatives of business and civil society, The system is tightly regulated. Advisers are appointed by the US government and must be security cleared to receive access to confidential information, Advisers do not receive access to the negotiating text. Registered lobbyists are excluded. The advisory system has assisted the effective development of US negotiating positions. Such a system is unknown in New Zealand but some aspects could usefully be implemented here.

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In June 2013 similar op eds appeared in at least two major US papers on consecutive days taking issue with the 'wall of secrecy' involved in the Trans-Pacific Partnership (TPP) negotiations. The writers took exception to the undue influence wielded by a group of some 600 trade 'advisers ... dominated by representatives of big businesses, who enjoy privileged access to draft texts and negotiators'. Who are these trade advisers and what influence do they really wield over the trade negotiating process? (1)

The somewhat inconvenient truth is that these trade advisers actually exist but they are not all from the private sector or even from big businesses. Drawn from larger companies, small-and medium-sized enterprises and industry associations, they exist alongside an admittedly smaller number of representatives from unions, environmental and community groups as well as academics and think tanks. They participate in what is a highly developed formal advisory system. What is more, the influence they wield is tightly regulated by federal law and overseen by the relevant agencies. The influence of federally registered 'lobbyists' is also tightly controlled, although the Obama administration has come under some intense criticism for exduding from the formal advisory system the contribution that could be made by well-placed industry advocates who come within the definition of 'lobbyists'.

Public consultation

Public consultation has long been a part of trade policy formulation. Governments have recognised that the private sector has a particular role to play as the generator of commercial opportunities to which successful trade negotiations may give rise.

As the trade policy negotiating agenda has become increasingly sophisticated, the need for more in-depth consultation with the private sector has increased. This has also required trade negotiators to confront a range of policy issues with which they are not accustomed. In this context the need for a properly informed basis on which to make policy decisions for translation into trade and economic agreements is critical.

At the same time non-business stakeholders, including groups representing labour, environment and more general interests, are demanding an increasing role in trade policy and for greater 'transparency' around the negotiating process. Those advocating for greater transparency claim it is a pre-requisite for more democratic governance and this has given rise to demands for release of draft negotiating texts and for representation at the negotiating table. (2)

Constitutional context

In the United States the framework for stakeholder consultation on trade negotiations cannot be separated from the constitutional context in which US trade policy is enacted. Trade policy is a shared responsibility between the administration (the executive branch headed by the president) and the Congress (both House of Representatives and Senate).

The authority to negotiate the reduction of tariffs...