"With cat-like tread upon our foes we steal." So boasted Gilbert and Sullivan's Pirates of Penzance as they decided to try a little burglary for a change. And "steal" is the appropriate word.
It's hardly a surprise that Republican congressional leaders and their cadre of Democratic allies spurred on by Barack Obama are resorting to a bagful of parliamentary tricks to put the Trans-Pacific Partnership on a "take it or leave it but you can't change it" fast-track to enactment by Tuesday.
No sooner had the first round gone to pro-democracy forces than Speaker Boehner -- forever remembered as the man who handed out tobacco lobby checks to members on the House floor -- promptly scheduled a new vote allowing time to bring pressure on naysayers.
Remember when Tom DeLay, the former House Republican majority leader used to stop the clock of a legislative day at five minutes to midnight, the lobbyists' favorite witching hour? That way he could whipsaw doubters into line behind something President George W. Bush wanted but couldn't get through Congress in the open.
Boehner learned a lot from watching DeLay, and now he, Senate Majority Leader Mitch ("Mr. Dark Money") McConnell, and assorted cronies are consorting to deliver to Mr. Obama the goods he has promised multinational conglomerates in the laughable name of "free trade." And they are doing it the old-fashioned congressional way: hocus pocus.
The bill was reintroduced last Thursday, unaccompanied by a controversial provision to assist workers displaced by the pact, and passed 218 to 208. It now returns to the Senate for approval in its new form and there its opponents will make a last stand on Tuesday.
What a terrible contraption it still is, conceived in secret with the imprimatur of multinational corporate attorneys and dedicated to the proposition that American workers are expendable, the environment is mere foodstuff to swell profit margins, and sovereign American laws are subject to second-opinion lawsuits by foreign companies. "What looks like a stone wall to a layman," a humorist of an earlier century once wrote, "is a triumphal arch to a corporation lawyer."
This bag of tricks is full of deceptive arguments. Fast-track proponents claim that expanded trade will be good for everybody by creating plentiful new jobs here in the U.S. Unfortunately, specific examples and illustrations are conspicuously lacking.
International Business Times has just published a new report examining the known text of the TPP treaty that shows it would provide special legal rights to corporations that it denies to unions, small businesses and other public interest, environmental and civic groups. Specifically, while President Obama keeps repeating the misleading promise that the deal would "level the playing field," instead, the TPP would let corporations sue in international tribunals to try to overturn labor, environmental and human rights laws while prohibiting public-interest groups from suing in the same tribunals. How's that for a "level playing field?" Please, Mr. President, how about you leveling with us?
They say that without the treaty, America will be pushed out of its strong role in the world's economy by China and a potential list of Asian satellites. If so, why is it we only know about the terms of the treaty through leaks, or a carefully condensed and edited online site, or a version available to Congress only on heavily restrictive terms. And why an end run around the Constitution by giving the president a sovereign power to deny the members of Congress their right to offer amendments against provisions that they believe harm the interests of their districts? What on earth would the Founding Fathers think?
Let's go back to 1787 and 1788 for some answers.
To begin with, the idea of secrecy appalled them. It's true that the Constitutional Convention deliberated in secret, but that was for the very practical purpose of allowing members freely to take or change positions as the document was put together, piece by piece, until the final draft was completed. Then it was immediately released to the public and to the state ratifying conventions for debate that actually resulted in post-adoption changes (that's how we got those first 10 amendments, the Bill of Rights.)
Even so, the secrecy troubled many. Thomas Jefferson wrote to his friend John Adams: "I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members. Nothing can justify this example but the innocence of their intentions and ignorance of the value of public discussions."
The writer of a letter to a Philadelphia newspaper in 1787 -- who self-identified as a former officer in the Continental Army and presumably had earned the right to speak out even against the framers of the government that his patriotism and sacrifice helped make possible -- was furious:
"The injunction of secrecy imposed on the members of the late Convention during their deliberations was obviously dictated by the genius of Aristocracy... Whatever specious reasons may be assigned for secrecy during the framing of the plan, no good one can exist, for leading the people blindfolded into the implicit adoption of it. Such an attempt does not augur the public good. It carries on the face of it an intention to juggle the people out of their liberties ... the unaccountable SUPPRESSION OF THEIR JOURNALS [was] the highest insult that could be offered to the majesty of the people."
What do we know of the anonymous draftsmen of the TPP treaty now slithering through the back corridors of Congress? What's the reason for taking the right of consideration away from both Senate and House? According to TPP's defenders, it's that other nations will refuse to participate in the treaty unless there's a guarantee that its terms will not be changed by some future action of Congress.
Think about that for a minute! The Congress of the United States -- that's our elected representatives, folks -- has to guarantee forever and a day that future elected governments won't be able to alter or even repudiate decisions made in 2015? Nonsense! When has that ever deterred sovereign nations from making good faith agreements with each other? Come to think of it, what sovereign would ever tie the hands of his descendants and future generations of his people in that way, much less a democratically elected leader?
Getting back to the framers, above all, any clear and careful reading of the debates in Philadelphia confirms that they were as suspicious as a veteran detective of any exclusive power given to the president that had a whiff of royalty about it -- like, for instance, a right to bypass congressional consideration of a measure. Some of the hardest and longest struggles on the floor were over the presidency -- who should elect him, for how long, with what compensation and with what causes (if any) for removal. Endowing the chief executive of government with enough energy and freedom to do a competent job, but keeping him on a long leash was the conundrum that has hung over almost every presidency since Washington's.
In The Federalist No. 75, Alexander Hamilton, (who personally favored monarchy but knew it was impossible to impose on Americans who had just thrown off a king) put it with his usual powerful logic in explaining why the president had to get the Senate's advice and consent to a treaty. Certainly the president should not have a crowd of pesky lawmakers criticizing his every move while actually dealing with foreign nations -- and yet:
"The history of human conduct does not warrant that exalted opinion of human virtue, which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world, at the sole disposal of a magistrate created and circumstanced as would be a president of the United States. ... It must indeed be clear, to a demonstration, that the joint possession of the power in question, by the president and senate, would afford a greater prospect of security than the separate possession of it by either of them."
So once again: Why the secrecy and what's the hurry? Why the snatching of power from Congress and the assault on U.S. sovereignty in the defense of corporate interests? Why the threats of disaster if there's any delay? Why the bum's rush to hand to any president -- especially one as pro-corporate as Barack Obama -- such complete power over so vital a matter as trade? This country can have expanded trade and laws that guard the environment, the rights and economic health of American workers, and the competition of small entrepreneurs. This treaty can be worked out by debate and compromise. But not if the fix is in -- not if Boehner, McConnell and Obama put a fast one over on us.
Resistance is crucial. Pass the word. Write, call, e-mail, visit or communicate with your senators by whatever means available. Alert friends and kin. With apologies to Gilbert and Sullivan, the cat burglars of Congress are back -- with yet another stealth attack on democracy.