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Gordon Campbell on the last rites for the TPP

Gordon Campbell on the last rites for the TPP

First published on Werewolf

Sorry. I know that the TPP is the reggae of political issues…in that it can be endlessly boring, samey sounding and obsessed with the same things ( Jah, ganja and investor state disputes) but believe me, there are some fascinating bassline variations if you can really get into it. Most of the time, Prime Minister John Key tends to bet on the boredom factor canceling out any need for him to touch base with reality when he talks about the TPP. Who cares? Who’s listening? Is it dead yet ?

Here’s this morning’s latest take on the TPP’s chances of survival. They’re not good. Not even the Peterson Institute, hitherto the source of the most rosy estimates of the TPP’s likely economic gains, thinks the TPP has much chance in the short term.

“The TPP is probably dead for the rest of the Obama administration, but that doesn’t mean it can’t rise again in one or two years, with a little goading from the other countries that are members of the pact, says Gary Hufbauer, a senior fellow at the Peterson Institute for International Economics.

“The path for resurrection is ratification by New Zealand, Malaysia, Australia, Mexico, Canada and conceivably by Japan,” Hufbauer said during a recent panel discussion at American University, looking well past the election. “The U.S. is out of the party while President Clinton devotes her time to other issues. Then in 2018, 2019, she rediscovers the global security imperative for going with TPP and she gives it a new name. New coloration, new name, and the U.S. comes in. That’s the path to resurrection.”

If that prognosis is accurate, then New Zealand’s ongoing ratification of the deal in Parliament still matters a lot. At the same link, US Trade Representative Michael Froman was gamely talking up the chances of the TPP passing Congress during the ‘lame duck’ sitting period that will be held after next Tuesday’s US election. Key’s comments in the TPP at Monday’s post Cabinet press conference showed similar optimism. According to Key (a) the TPP has a 50/50 chance of passage during the lame-duck session (b) keeping the TPP alive depends on the Republicans and on House Speaker Paul Ryan in particular and (c) Tim Kaine, Hillary Clinton’s running mate is a TPP supporter.

None of this is very credible. No one else watching the TPP process is rating its survival chances as high as 50/50. Slim chance at best, or no chance at all is the general consensus. Moreover – and I hope this is a little bit interesting –the only way the White House can even get close to cutting an acceptable deal with the Republicans over the many issues to which the GOP objects (eg data localization, pharmaceutical patent terms, tobacco regulations, currency manipulation etc etc) is by conceding to a 12 year market exclusivity term for biologic medicines.

BTW the key player here isn’t Paul Ryan, but veteran Senate Finance Committee chairman Orrin Hatch, who has been pressuring Us President Barack Obama for months to insert a 12 year patent term into the TPP, instead of the 5 year TPP patent term that New Zealand and Australia thought they’d signed in Auckland in February. Reportedly, Obama has been edging closer to total capitulation on this issue.

Which is where (I promise) this latest slice of TPP reggae starts to get interesting. In essence, the Republicans won’t sign a TPP that doesn’t contain a 12 year patent exclusivity term for biologics. Yet at his September 12, 2016 post-Cabinet press conference, John Key ruled out accepting that provision when I asked him about it. If you’ll bear with me, here’s how the exchange went.

Me : During his recent visit did vice-President Joe Biden raise the question of whether New Zealand might be amenable to increasing the market exclusivity term for certain pharmaceuticals ?

Key : No. I mean, look, well and truly, we’re in a debate about the preferences of the United States for that period to be eight years, and not five. New Zealand, as we’ve made the case when the negotiations were taking place, is very confident that our law – the way its set [at five years] – achieves what, actually, the parties would want, is fair and balanced, in consideration, on the whole package. So he didn’t lobby for that and we’re not –

Me : So twelve years is completely out of the question for New Zealand ?

Key : Sorry ? Eight years, did you say ?

Me : No, Twelve.

Key : Oh, twelve. No. Yeah. [ie. Yeah, it is out of the question.]

So….the only way the TPP is going to win a successful Congressional lameduck vote is if Obama and Hatch agree that a 12 year patent term for biologics will be inserted into the TPP. Yet John Key has already explicitly rejected New Zealand accepting that option. Will Key now commit to our Parliament voting down any such proposal ?

Even more strangely, if Hatch gets his way and that 12 year exclusivity term does become part of a TPP package passed during the lameduck period, this would reportedly lay the US open to being sued under the investor-state dispute mechanisms if a President Hillary Clinton ever tried in future to vary the exclusivity period in an effort to reduce high drug prices. This is a live, and quite bi-partisan issue. On the campaign trail, Clinton has proposed a seven-year patent exclusivity period. Legislation has also been introduced by Senators Sherrod Brown (Democrat of Ohio), John McCain (Republican-Arizona) and Rep. Jan Schakowsky (Democrat, Illinois) to cut biologics exclusivity back to seven years. Given these circumstances, it would be very hard to imagine a stampede by Republicans and Democrats to hot weld Orrin Hatch’s 12 year proposal into the TPP.

But wait, there’s more

In passing, lets dispense with the two other TPP points that Key made on Monday : (a) that the lame-duck passage depends on Paul Ryan and (b) that Tim Kaine can be counted as some kind of closet TPP supporter. Since August, Ryan has been saying that the TPP shouldn’t be put before the Congressional lame duck session and that it would fail if it was brought to a House vote. Ryan repeated that position on October 7, in an interview with right wing media personality Laura Ingraham.

Paul Ryan said Friday there would be no lame duck attempt to foist the Trans-Pacific Partnership on the American people.“We’re not going to bring this up in [the] lame-duck [session],” Ryan said Friday morning during an appearance on “The Laura Ingraham Show.” I can say that safely because even if we wanted to … we don’t have the votes,” Ryan added. Ryan stressed that he and the House GOP do not want to resurrect the TPP in its current form. “We think it’s not where it needs to be,” Ryan said. Obama has “got to fix this deal,” said Ryan. “There’s real problems with it.”

Not much wiggle room there. So, what part of Ryan’s categorical “No” does Key not understand? As for Kaine, his opposition to the TPP was a pre-condition for him securing the vice-presidential slot, and his prior enthusiasm for free trade became irrelevant at that point. At the time of his change of tack, Kaine explained it as being based on his problems with the investor state dispute resolution provisions contained in the pact.

I see much in the TPP draft — which has now been public and apparent to everybody for quite a while — that I like,” Kaine said then [in July] . “There’s one piece that I’m still really digging into is the dispute resolution.”[Later] Kaine stressed that he still had a “lot of concerns” about ISDS.

In October, Kaine repeated his belief that a new Clinton administration would be open to revisiting free trade issues. But back at the Peterson Institute – where this column started – they’re pretty sure that any revisiting won’t be done under the banner of the TPP.

Jeffrey Schott, a trade analyst at the Peterson Institute for International Economics, said he expected a Clinton administration would try to convince TPP nations to add provisions barring the manipulation of currency and drop dispute resolution panels, which critics say give corporations a way to avoid local courts. “From what Tim Kaine said, it sounds like they’re open to a trade deal but it would have to be restructured and rebranded.”

We’ll soon find out the TPP’s fate. In the lame-duck period it would take about a month to get a TPP vote on the rails and passed through all of its necessary stages in the House and Senate - so the deadline for the Obama administration to signal whether it has sufficient votes in its camp to risk proceeding to a vote at all, has been estimated (by the Wall Street Journal) to be November 18. See you again around then.

Lambchop Return

Kurt Wagner’s veteran Nashville indie band Lambchop has taken on an electronic incarnation this time, on their new album FLOTUS. Not many bands would publicise their new work with an 18 minute long single, but Wagner has done just that. Here’s “The Hustle” – the album finale, and the first FLOTUS track to see daylight :

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