Wikileaks Disclosure of Trade Deal Chapter Shows It Will Kill People and Internet; House Opposition is Widespread

We posted on the New York Times news story that opposition in the House to authorization of “fast track” authority to the Administration on its pending Pacific and Atlantic trade deals was stiffening right just before a related story broke: that Wikileaks had disclosed the end of August draft of one of the critical chapters of one of the deals.

We wrote yesterday that this deal, the Trans Pacific Partnership, already looked to be in trouble given both Congressional and foreign opposition. The Administration has conducted the talks with an unheard-of degree of secrecy, with Congressional staffers in most cases denied access to the text and even Congressmen themselves facing unheard-of obstacles (Alan Grayson reported that the US Trade Representative created an absurd six weeks of dubious delays in his case). But perversely, 700 corporate representatives got privileged access so they could influence negotiations. It’s not hard to see whose interests are really being served in these deals.

The Wikileaks disclosure could well have struck the fatal blow to this toxic pact. As we’ll see below, it may have been dead anyhow. Obama’s relationship with his own party is already on the rocks as a result of Obamacare (not just the rollout but the increasing recognition that the program has more fundamental flaws), so he has limited political capital available to whip Democratic Congressmen back into line. The opposition is more deep-seated and broad-based than I had realized (for instance, 18 of the 21 ranking full committee members in the House are against it). So the TPP looked to be on the Syria incursion path.

But it’s hard not to believe that the Wikileaks revelations will galvanize opposition among the other prospective members of the pact. It’s hard for democratic countries to agree to a deal that has been revealed will kill their citizens in order to enrich America’s Big Pharma incumbents. And that statement is not an exaggeration. Wikileaks disclosed the end of August version (apparently two drafts behind current text) of the intellectual property chapter, which includes the section on drugs and surgical procedures.

The intent is to strengthen America’s aggressive patent regime and require foreign countries to comply with it. For instance, the FDA considers minor changes in existing drugs, such as developing an extended release version so that a medication need be taking only once a day, to be a “new drug application” and will extend patents based on that. The draft also would severely limit the use of generics. Higher prices will restrict drug use and is certain to have adverse health consequences for some, potentially many, citizens. And although people overseas will suffer the greatest consequences, Americans will be affected as well. As Public Citizen wrote, “The U.S. Trade Representative (USTR) has proposed measures harmful to access to affordable medicines that have not been seen before in U.S. trade agreements,” and elaborated:

Screen shot 2013-11-14 at 6.15.53 AM

Another medical-industrial complex rent-extraction technique is by covering surgical methods . No, I am not making that up. See this section of an excellent discussion by Knowledge Ecology International:

An interesting example of how the US seeks to change national and global norms are the provisions in the TPP over patents on surgical methods. The WTO permits countries to exclude “diagnostic, therapeutic and surgical methods for the treatment of humans or animals.” The US wants to flip this provision, so that “may also exclude from patentability” becomes “shall make patents available.” However, when a version of the IP Chapter was leaked in 2011, the US trade negotiators were criticized for ignoring the provisions in 28 USC 287 that eliminated remedies for infringement involving the “medical activity” of a “medical practitioner.” The exception in US law covered ”the performance of a medical or surgical procedure on a body.” The US trade negotiators then proposed adding language that would permit an exception for surgery, but only “if they cover a method of using a machine, manufacture, or composition of matter.” The US proposal, crafted in consultation with the medical devices lobby, but secret from the general public, was similar, but different from the U.S. statute, which narrowed the exception in cases involving “the use of a patented machine, manufacture, or composition of matter in violation of such patent.” How different? As Public Citizen’s Burcu Kilic puts it, under the US proposal in the TPP, the exception would only apply to “surgical methods you can perform with your bare hands.”

I’m not sure how this would work in practice, but I imagine it would be ugly. For instance, Johnson & Johnson dominates the market for replacement hips and knees. They also provide tools used to perform the surgeries on those hips and knees which surgeons need to buy (as in no one had the incentive beside J&J to make these implements, and surgeons would be unlikely to scrimp on a secondary cost when it gets billed back to the patient anyhow). So it looks as if J&J would also somehow be able to charge additional fees on each operation, say if it introduced a new hip replacement which required some change in how the hip was installed (a new surgical method). How this would be enforced is over my pay grade.

The pact in its end of August form would also, as we had discussed based on concerned raised by the Electronic Freedom Foundation, interfere with basic Internet operations. The International Business Times summarized the EFF’s concerns:

Here’s the text of the relevant section of the TPP’s intellectual property chapter leaked Wednesday:

Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).

The EFF wrote in a July analysis of the language — which has not been amended in the intervening months — that the provision “reveals a profound disconnect with the reality of the modern computer,” which relies on temporary copies to perform routine operations, during which it must create temporary copies of programs and files in order to carry out basic functions. This is particularly so while a computer is connected to the Internet, when it will use temporary copies to buffer videos, store cache files to ensure websites load quickly and more.

“Since it’s technically necessary to download a temporary version of everything we see on our devices, does that mean—under the US proposed language—that anyone who ever views content on their device could potentially be found liable of infringement?” the EFF wrote. “For other countries signing on to the TPP, the answer would be most likely yes.”

Another way the TPP will harm the Internet is, similar to SOPA and PIPA, is to obligate internet service providers to act as copyright police. Now, as Dean Baker explained on Bill Moyers, if a website posts material improperly, the site owner and the host are obligated to remove it as soon as the publisher is notified (in practice, if the publisher does not comply pronto, a nastygram to the webhost will get the entire site taken down). ISPs are extremely low margin businesses. Forcing high-cost monitoring on them would lead them to increase their staffing considerably. The resulting hosting increases would force the closure of most small independent sites. The increased oversight of ordinary users (they’d be required to monitor ongoing communications for piracy, which sounds like an NSA wet dream) would also likely lead to higher access charges for consumers.

I attempted to read the draft, which was largely over my head (as in you need to know extant intellectual property provisions in order to be able to see how this treaty language stands relative to it). However, even a casual reading shows that much of the language is still under negotiation, with many passages having numerous TPP parties on each side of an issue. So the negotiations looked to be fraught even before the Wikileaks disclosure.

On the US side, Rosa DeLauro and George Miller are leading the opposition to the use of fast track authority altogether. This is the key section of their letter, which already has 151 signatures:

Congress, not the Executive Branch, must determine when an agreement meets the objectives Congress sets in the exercise of its Article I-8 exclusive constitutional authority to set the terms of trade. For instance, an agreement that does not specifically meet congressional negotiating objectives must not receive preferential consideration in Congress. A new trade agreement negotiation and approval process that restores a robust role for Congress is essential to achieving U.S. trade agreements that can secure prosperity for the greatest number of Americans, while preserving the vital tenets of American democracy in the era of globalization.

Twentieth Century “Fast Track” is simply not appropriate for 21st Century agreements and must be replaced. The United States cannot afford another trade agreement that replicates the mistakes of the past. We can and must do better.

Let’s hope that lame duck Obama overplaying his hand on the “trade” front will indeed rouse Congress to pull back authority that it has over the years allowed the Executive to abrogate. If so, this will be an unexpected and welcome important side benefit of blocking these toxic trade deals.

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  1. guabin

    But for posts as this, those who rely mainly on the likes of the NYT for information and analysis would have fallen for its pro-TPP editorial, based on either no information or on privileged information for a deal being negotiated in secret.
    The irony is the WikiLeaks leak on intellectual property (IP)rights confirmed suspicions repeatedly expressed, here and at Beat the Press, on the intended beneficiaries of such secret negotiations. In other times the term ‘Fast Track’ would never have implied excluding citizens or legislators from the process. And,surely, there is more to come from WikiLeaks, with a possible further delay in confirming the official corporate President.
    Nothing like a ‘look backward’ to receive today’s news.

    1. be'emet

      when last I looked, about 24 hours after the wikileaks/tpp story broke – and I had discovered it in an NC comment – Google news had hundred of references, and no links to any US MSM coverage. NYT search provided a precise rubric but showed 0 items. WSJ no better. Total blackout. I wrote to NYT Public Editor, no response as yet.

      Could be that anything connected to Wikileaks is censored? or to TPP? (but NYT has covered both previously.) I think there’s an interesting story here, and I anticipate we will hear about it first from Nakedcapitalism.

  2. Doug Terpstra

    Wow. Change you just can’t believe. The TPP-SHAFTA scheme is surely Barack’s most audacious lie yet. From promising to renegotiate NAFTA to pimping NAFTA on steroids, in secret, he’s plunged head-first into the dark side. From the medical provsions, this appears to be the fascist imposition of ObamneyCare worldwide:

    “Let me be perfectly clear: if you like your [single-payer system], you can keep it. Trust me.” Makes me nostalgic for Nixon. Here is a classic “domestic enemy of the constitution” and still no “serious people” raise the ‘I’ word?

      1. Woody in Florida

        For me the litmus test of our political parties is easy to see. I consider myself mostly Libertarian, and certainly more Republican than Democrat, yet the only person that I trust when he speaks is Grayson, and I don’t like his basic agenda as I understand it. But I do trust him to tell me what he believes to be the truth. The rest of the congress critters seem to just be a smoke-screen, or distraction. In the end, there may be some differences between them, but mostly they just do whatever their ma$ter$ are telling them.

    1. sleepy

      Obama 2013 is reminding me of Bush c. 2005 after Iraq blew up in his face and his social security privatization scam fell flat. That was the beginning of the end–at least for a few years–of the repub brand.

      Maybe Obama is destroying the dem brand electorally. Good. What comes next, who knows, but hopefully not Hillary. I’ll go all pollyannaish here and suggest that just perhaps, neoliberalism has reached its high water mark, just as, again perhaps, neoconservate foreign policy reached the same with the recent Syria fiasco and the hopeful signs of rapproachment with Iran.

      That’s my positive thought of the day.

    2. steelhead23

      Obama himself benefits directly from U.S. patent and copyright law. He reportedly receives about $80k annually in royalties for his Audacity of Hope book and likely a lesser but significant amount from Dreams from My Father. Once you’ve tasted Cristal, its hard to enjoy two-buck Chuck.

  3. Foppe

    Medicins sans Frontières also weighed in on the topic of affordable access to medicine, and what this pact will do, a few months ago:

    In the field of health, generic competition saves lives. As a medical treatment provider, MSF relies on affordable generic medicines to treat a wide variety of diseases, including tuberculosis, malaria, HIV/AIDS and other infections that afflict the poorest and most vulnerable populations. And we are not alone in this – the major treatment initiatives, including the Global Fund to Fight AIDS, Tuberculosis and Malaria, the US government’s PEPFAR programme and many others depend heavily on affordable generics.

    But the TPP is threatening to cut off the lifeline that generic drugs provide for people living with HIV/AIDS and many other diseases. The availability of generic medicines in a particular country depends on a complex structure of national rules and regulations governing patents and other intellectual property rights. Trade pacts and other international agreements can impact these domestic regulations, and governments have long recognized the need to balance public health interests with intellectual property (IP) demands when negotiating trade agreements. In fact, multiple multilateral commitments have reaffirmed the importance of this balance, including the 2001 WTO Doha Declaration on TRIPS and Public Health and the 2008 WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property.

    However, despite these commitments, the US government is pushing policies in the TPP that represent the most far-reaching attempt to date to impose aggressive IP standards in a trade agreement with developing countries – policies that further tip the balance towards strong IP regimes favoring commercial interests and away from public health.

  4. Cocomaan

    I find myself increasingly relying on republicans to stop the executive from damaging the country. What the hell is that all about?

    1. ambrit

      Dear Cocomaan;
      I’d parse it this way. The more radical Republican Party types, (not to be confused with the Tea Party cadres, they have often shown a distinctly populist bent,) want to “drown government in a bathtub.” To that end, they have a standing aversion to Executive Office encroachment on previously Legislative rights and duties. They see any expansion of Executive Office prerogatives as an ‘expansion’ of government. At a tactical level, this can be seen as an opportune convergence of interests. At the strategic level it trends towards disaster. Ideologues, of any stripe, have self defeating blind spots. Like the drunk man at the crash site remarked; “D–n! I ain’t never seen no tree jump out in front of me like that before!”

    2. savedbyirony

      Actually far more Dems have come out against the TPP and fast track treatment so far. WHERE are the the GOPers, ect.?! If Obama wasn’t really just one of their true believing pack, they and their pressure press would be all over the TPP!

      1. Yves Smith Post author

        Correct. 151 Dems have signed the letter above, 22 Republicans have signed a similar letter, and as of yesterday, 40 to 50 other House members were opposed. So here, it’s the Democrats who are much more in opposition than Republicans.

        1. sleepy

          Any leftward lurch of the congressional dems, if not outright rebellion against Obama, is certainly welcome, but . . . . . . I know fool me once shame on you, fool me 329 times, I’m a moron.

          1. savedbyirony

            No, we are citizens and we have serious responsibilities in all this. These people are politicians, not miracle workers. When they lurch or even just put on an act, WE have to be behind them pushing and threatening them to follow thru! as well as actually non-cooperatively, ect. fighting back against the special interests they are opposing. (By-the-way, this site has been complaining about the proposed cutting of Social Security, that’s good, but is it following up and supporting the Dem.’s who have shot back with a bill to Increase S.S. payments and funding instead??) I don’t think the majority of these politicians actually appreciate having to be such Corporate creatures, but what exactly are they suppose to do if the American people won’t use the avenues of power, which they have, to give them cover and support to fight such elite interests?

            1. anon y'mouse

              I still say they owe us fiduciary duties to keep us properly informed, and act on our behalf. and we should be able to sue/penalize them for non-performance. why should the average Real Estate agent have more responsibility to their clients than politicians due to their constituents?

              this will never fly in Lobbyist Land, though.

      2. Carla

        With Fast Track and the TPP as in everything else, let’s watch what the Dems actually DO, not just what they SAY. Time and time again, what I’ve seen is:

        The Republicans tell you they’re going to F*** you over, and then they F*** you over.

        The Democrats tell you they’re going to help you, and then they F*** you over.

        Glad you’re “saved by irony,” BTW. Wish I felt that way, but the way I feel is definitely not “saved.”

        1. OIFVet

          No no no, the rationale is that since they use some KY jelly we are not being f*****d over but helped not to feel the pain. The way I look at it this is what the duopoly is arguing about: whether to spring for some KY jelly or not.

        2. savedbyirony

          (in these hard times, i am often saved by having a sense of humor and being around others who do as well, even if it is at times highly ironical and rather dark) I know the political situation is bleak, but i also know that change is inevitable and that that change is no more certain to be towards ever increasing positive progress than it is towards complete devistation and gloom. People here often talk as if no nation has ever before faced such troubles (including our own) and rebounded from them. History would show that that view is wrong and an incorrect accounting for both human nature and the courses of societies. At the beginning of N. Kleins talk about her book “The Shock Doctrine” she tells of FDR meeting with social and economic activists, listening to what they had to say and then telling them that he agreed with their ideas so now what they had to do is go out there and make him do it. Senators Brown, Warren, ect. are no saints but i think they and many members of both parties sincerely do want to clean up banking in this country, but they need us to help make them do it. As if we think these individuals and politicians should be the one’s to take all the risks. They need us to quit simply complaining because they can’t and won’t fix all our problems by themselves. So if you want Democrats to act like Democrats and follow thru on many of their campaign “promises” quit complaining about the poor jobs they do and get actively involved in actually making them do it! Form a union or join one, work with , join the people preparing to boycott large under-paying chain stores this coming Black Friday, run for any public office yourself, ect. ect. Win or loose is not the only point about such actions. But claiming “all is lost, everyone is a complete sell-out, it’s a done deal even though it’s no such thing until the deal has been inked” is completely foolish and utterly counter-productive.

  5. ambrit

    As an aging Western Male I am using several compositions presently available in generic form to deal with my condition. (Some things aren’t amenable to lifestyle changes. D—-d genes!) I had to fight with my medical providers for access to several of the generics over the years. (Don’t trot out the “just change doctors” mantra. Some of the more sparsely inhabited regions have very limited choices. Even then, most if not all the practitioners can be reading from the same script. Around here, in the Deep South, several practitioners in the more rural parts have started moving to the Pre Pay, annual retainer business model. [Therein lies the crux of the matter: Treating medicine as a business in the first place.] Very much like what I’ve read the old Chinese model of health care, (pre-Revolution) looked like. The new Capitalist twist is that you still have to pay per procedure or diagnosis, unlike the old Chinese model.
    If I have to suffer the effects of a rolling back of hard won benefits, (and the removal of bankruptcy from the side effects listed on the package is a major benefit,) then I am going to be a fully p—-d off old man. Multiply me by a few million other men and women, and you’ve got a voting bloc! Organization is the key. I’d join an organization named the American Association of Really P—d Off People, (AARPOP). Wouldn’t you?

    1. ambrit

      Good heavens! My wife has just, after she stopped laughing, pointed out to me a much less seemly version of my putative Non Profit Lobbying Association. It entails the addition of one appropriate word to my version. Zounds! My unconscious is regressing today.

      1. Antifa

        A neighbor in my neck of the woods suffers from a couple of chronic health issues, which have always made her “uninsurable” — either rejected by health insurers or offered a monthly quote way beyond reasonable as their way of saying “please go away.”

        Still, she works 15 hour days on her place. She’s a farmer, self-employed, widowed, and pays cash for her medical care, which involves occasional doctor visits and several prescription meds.

        But her meds are really expensive in these fifty states, for no good reason. Last spring she was looking into selling her fully paid for home and farm just to afford a couple of medicines that run a bit over $5 per pill here in America. The full annual cost for these two medicines ran over $11K.

        She said she was looking at a choice between her life or her property. She couldn’t hang on to both at once.

        It didn’t take long to find generic versions of the same meds for pennies per pill from overseas, and her annual cost is now about $520, with shipping. She happily told the mortgage broker who was “helping her with her unfortunate situation” to go enjoy oral congress with a rodent, or something to that effect. She kept the farm. The $11K per annum in ‘pills bills’ was what was sinking her operation. Now that $11K is getting sunk into more crops and more livestock and more savings for her future.

        Who knows what the future will bring, but as long as Americans can import generic “medicine for personal use only” through US Customs, they can keep their homes and savings and health.

        Note that the FDA has already ruled this kind of medicine importation illegal on the basis that generic medicines that are perfectly fine for many tens of millions of human beings worldwide are somehow unsafe for Americans, but they have yet to have the cojones to enforce the rule at our borders.

        There’ll be some real blowback the day they try it. It will be received as a direct assault on their lives and property by a great many ill or elderly Americans. No wonder they tried to slip it into the TPP without anyone knowing. Even then, they got a very negative response from other nations around the Pacific who don’t fancy their constituents paying $5 per pill for American medicine they’ve always bought at home at two pills for a nickel.

        But you can be sure they will try enforcing their rule one of these days. The American pharmaceutical outfits want their fair share of profits, and that share is ALL of it.

        Now my neighbor has been trying to sort out her options in the ACA labyrinth. She doesn’t do computers or internet, so we’ve been through it together on my laptop for several long sessions, and found it’s not remotely possible to find her any affordable options. She’d have to pay $16K or so in premiums and deductibles before anything she needs is covered, so what possible use is the ACA to her?

        If she ever comes down with a mortal illness, she knows the house and farm are gone. That’s understood. But why give them up now just to pay for health insurance she doesn’t dare use?

        Here’s a campaign slogan for our next President: “It’s the high premiums and deductibles, stupid!”

        I don’t know if one of the Clintons said that, but I betch they will.

        So my neighbor will continue paying cash for doctor visits and importing generic medicine, and let the IRS keep some of her annual tax refund as a fine for not buying health insurance.

        A tax refund she never accrues, by the way.

        She’s one of those lazy, shiftless, good for nothing, layabout 47% of Americans who don’t pay income tax, so how the IRS plans to punish her is an open question.

        Maybe they’ll seize some of her chickens, or a couple milk goats. Or one of the wheels off her ’47 Ford tractor. Or walk all over her vegetable garden.

        That’ll learn her to deny people their profits, by golly.

  6. Banger

    This is an interesting political moment. If TPP fails, as I think it will, this will mean we are at a turning point and it will be a vote of “no confidence” in the system we are operating under. We have to remember that the entire Mighty Wurlitzer went into one of its thundering choruses over Syria not too long ago–meaning every major news organization was literally howling for war and nothing happened except Putin spoke a few sensible words and everything stopped.

    In the same way, I suspect, the TPP will be stopped–anyone who knows about it and isn’t part of the mafia that runs the country doesn’t want it whether on the right or left.

  7. Jackrabbit

    Congressmen themselves facing unheard-of obstacles

    Congress hasn’t yet approved ‘fast-track’ for TPP and other trade deals. Absent such a formal Congressional-Executive Agreement, it is unclear how forthcoming the Executive is required to be.

    perversely, 700 corporate representatives got privileged access

    ‘Fast-track’ includes a provision for bringing the private sector (mostly corporations) into the discussions and providing a level of protection for the information that they provide. There is nothing ‘perverse’ about this – US negotiators need this info.


    The problem here, is that the Obama Administration (as usual) appears to want it both ways: They want to PASS trade deals under ‘fast-trak’ while excluding Congress from negotiations.

    ‘Fast-trak’ is SUPPOSED to be agreed in advance of negotiations. Congress is SUPPOSED to be deeply involved in negotiating the trade agreement(s) that are ‘fast-trak’-ed. ‘Fast-trak’ creates a working relationship between Congress and the Executive.

    What is really ‘perverse’ here is the Obama Administration’s attempt to circumvent Congress’ Constitutional authority.

    1. Yves Smith Post author

      No, I stand with my “perversely” as written. Corporate advisors could see the text. But virtually all Congressional staffers can’t see it (and then, the ones that can are if I understand it correct, limited to seeing sections relevant to committees on which their boss sits) and the text was withheld from individual Congressmen unless they made a stink, and even then the USTR dragged its feet in every way possible in letting them see it. And even THEN, all they’d see were summaries of proposed terms, not the current version of treaty language.

      1. Jackrabbit


        I agree with ‘perverse’ but in a different way.


        I think it is important to know exactly where Obama and Congress stands on ‘fast-track to ensure utmost credibility.

        I know that’fast-track’ has not been formally approved by Congress. But does Obama has an informal agreement with Congressional leaders? … or has he said that he would follow fast-track procedures unilaterally?????

        Under fast-track rules, Obama has an obligation not to simply inform Congress but to CONSULT as part of a working relationship where Congress is theoretically an equal partner.

        If Obama has obligated himself to follow ‘fast-track’ procedures then you should be aware that fast-track rules call for the trade representative’s office to bring the private sector into the discussion and allow the President to guard their info with whatever level of secrecy he wants to provide.

        Lastly, it may be that the President can have secret discussions with corporations and not yet have obligated himself to follow ‘fast-track’ procedures. But in this case, it seems abundantly clear that he is usurping Congress’s Constitutional authority.

    1. John Mc

      I think this misses the point. Americans can prevent this fast-tracking trade agreement from occurring. This is what NC, Yves and the thousands of bloggers are here to do — resist.

      And if you have not noticed (Bill Moyers recent interview with Dean Baker and Yves), there is real head-way being made which is making a difference in the conversation.

      We need to limit our pity, there is no time for it. Skepticism yeah… Pity ney…

  8. jfleni

    We are all indebted to WikiLeaks for the TPP information, which we would never have known otherwise.

    But the head of that group is still confined trying to avoid being imprisoned for life over the case of two flaky Swedish chippies(??) who complain very unbelievably about one broken condom! The “prisoner” was very foolish, but we all still owe him, and he is being quite unjustly “railroaded”.

    The Brits are still kissing the hindquarters of their former friend (??) rather than solving their own real and difficult problems. In 2014, other Europeans and the almost certainly newly independent Scots should take very careful notice.

  9. anon y'mouse

    patent surgical procedures….isn’t this like patenting how you drive a car?

    you’re going to have to pay for that ‘hands at 10 & 2 o’clock method’ every time you use it, now.

    as you say, how to enforce? ope! no choice, gotta have the NSA spycam in the doctor’s office now, to make sure he isn’t doing something specific with his hands that he hasn’t paid the ‘creator’ to do.

    will they patent ‘flipping the bird’ next?

  10. ex-PFC Chuck

    Derailing the TPP and TATIP runaway trains is going to be a lot more difficult than people think. Although I suspect that many in the Democratic Party nomenclatura had clued in to the fact that Barrack Obama is a right wing mole, they themselves are deeply compromised by the “dependence corruption” of which Lawrence Lessig wrote in Republic, Lost: How Money Corrupts Congress–and a Plan to Stop It. Until recently they thought that they could limit the damage to the party and, in the case of elective office holders, to their own prospects for reelection. But in the face of the steady drip, drip, drip of the Snowden-NSA revelations, followed by the one-two punch of the launch clusterfuck of Obamacare and the fact that first major leak of TPP text is showing that the worst fears about the negotiations are more than justified, that confidence is dissolving.

    The challenge inheres in the differences between the grass roots voters of the two legacy parties. I’m not talking here about the people who actively work in campaigns at the local level but those whom the activists try to influence to get off their butts and go to the polls on election day. The Republican voters tend to be older, more issue driven (especially on issues that are now widely popular nationally), and tend to turn out on election day through thick and thin. Those who usually vote Democratic, by contrast, aren’t as committed to specific issues; they just want the government to function and, hopefully, make their lives a little bit easier and not screw things up as they do their jobs, raise their families and plan for enjoyable retirements. When Republican voters see things not going their way they tend to redouble their electoral efforts. People who are disappointed supporters of the Democratic Party, by contrast, tend to vote with their butts; by sitting on them on election day. The 2010 mid-term election was a classic example of this phenomenon, and among the results were Republican takeovers of many state legislatures that enabled gerrymandered reapportionments that gave the party a huge advantage in the US Congress.

    The Democratic Party now faces a huge challenge in motivating its likely voters in 2014, because more and more of them realize that the party no longer advocates for their economic interests. The multifaceted fiasco that is Obamacare has just begun rubbing voters’ noses in that fact in unprecedentedly personal ways that cannot ignored, and it will dominate news coverage right up until November 4 of next year. While the TPP and TATIP have seized the attention of communities like this one at NC, as well as a niche or two on the right, coverage will be minimized in the corporate media. Where are these disappointed and enraged once-Democratic voters going to go? Given the baked-in-law advantages the two legacy parties have, third parties are still seen as wasted votes. (Although the truly wasted vote is one for a legacy party in the expectation anything will change for the better.) Thus, 2014 has all the makings of a repeat of 2010, and perhaps more so. Republicans will gain seats in both houses of Congress. Even though there are rumblings of TPP protest among the party’s House members, the party is both even more wholly owned by the elites than the Democrats are, and better at herding cats when it comes to delivering its members on legislative votes on issues those elites really, really want. Even if the Republicans don’t regain control of the Senate, there are almost certainly more than enough Democratic senators who will put their owners’ interests above their oath of office. In short, all Obama has to do is to kick the can down the road past the 2014 election.

    1. savedbyirony

      There are plenty of Dem. pols who aren’t Obots, and Obama’s polling numbers are sinking like stones. People are fed up with voting for the lesser of two evils, and know that when they do it all they are ending up with is more evil. Plenty of professional Dem. politicians are and will continue to speak out and act up against the the GOPer in donkey clothing, who is Obama, and the important part of the equation is that they will WIN political races for doing exactly that. (As for what you are saying about the Dems., the TPP and the politicians’ Corporate bedfellows; not all business folk are seated at these secret negotiating tables. It’s hardly as if all of Corp. america gets an equal place at the priviladged tables and like-it-or-not, and weakened-or-not Politicians still need to contend with other interests groups outside of the big multinational Corp. world. There are winning coalitions to be had outside of completely kowtowing to Koch Bros., Wall Street and strictly Corp. interests, and ambitious politicians will go looking for and organzing them as they continue to see that there is alternative power to be had there. (One such area i would suggest is looking to build from the environmental interests groups. Sooner-rather-than-later, an organized critical mass will form around these issues as there destructive impact transcends even most economic divides. We are not there yet, but it will come.)

      1. bh2

        You don’t seem to fully understand that anyone ascending to significant political power is bought off. The ones elected and not bought off don’t gain higher political power.

        It isn’t one party or the other. They are both corrupt to the core. The periodic charade of “elections” is intended only to fool the rubes and encourage a divisive “good guys/bad guys” mentality among the electorate. The people really in charge couldn’t care less who wins because the real power brokers can be so cheaply bought.

        1. savedbyirony

          I understand that 1.)they are not all “bought off” by the same interests, 2.) wealth/power come and go so the interests doing the buying change and are changing over time 3.) people who go into politics by nature want power and becoming complete corporate studges does not meet that desire very well 3.) the American people at large (regardless of political and cultural, ect. affiliations) have some very serious and compelling common interests -such as real banking reform, real campaign financing reform and environmental issues- and they also have vast economic and social powers in this country if and when they are willing to work together and use them; and that overtime by necessity they will do so because basically they will have no choice and that 4.) we still have elections in this country, to which these politicians -bought off or not- have to face the general citizenry. (Granted, our elections are extremely corrupted by money,gerrymandering, voter suppression, rigged vote counts, ect.)The political situation in this counrty is quite dire, but if it was as hopeless as you suggest, there would be no TPP fight at all. It would sail right thru. That clearly is not the case, and i see no reason to make the argument for telling Americans (or any peoples for that matter) not to become politically involved no matter where the current propaganda or realpolitik situation may peg them on the ruling ladder.

        2. Code Name D

          I would also add to this the nature of how laws like TPP are brought to the floor. This is a long term game. With opposition stiffening in the House, they will simply extend the negotiations. And there it will hover, year after year, for decades in needs be. Then once polling numbers for congress look like it will pass –shwoooom!!! Through it will go.

          The nature of politics makes it certain that there is no way to ever vote it down. Opponents will never get the chance. Once we turn our back, it will pass and pass quickly.

  11. Jim S

    Glad to see this (both the leak itself and the analysis). Perhaps there’s still hope that Wikileaks will release the material it has on Wall St.?

  12. LAS

    We’ve scarcely recovered from a suit to patent genes/genetic code concluded (maybe) this past summer.

    Most corporations don’t invent medical devices and drugs. They acquire the know-how to produce them. Then the patent is extended as kind of a reward for performing expensive safety research conforming to FDA requests. How we let these corporate entities succeed from this to status of high priests over all of us is a caution to lazy thinking. The hubris of mankind is at its zenith in the corporate structure and its legal dept, which would like us to forget their own flimsy evolution.

  13. Vedicculture

    Obama is irrelevant in this. There is no fast tracking nor will the TPP ever come to light under his watch. Most of what your talking about, already occurred. It is political game to see how much work they have to do to manage Congress.

    Hilliary Clinton is the one to watch as she will try and push the Dino’s into it and force a passage in 2017, probably under a new name.

    1. Yves Smith Post author

      That’s not how deals get done. Extended negotiations fail. Look at the Doha round.

      Plus look at the text TONS TONS TONS of unresolved issues in this chapter alone. You act as if the US in in the drivers’s seat and its trade partners will roll, but they were already concerned re this deal when it was being kept under wraps. The Wikileaks exposure will strengthen the hand of the countries who don’t want to be in this deal (Malaysia and Chile are fence sitting) and want cover to push harder or get out.

  14. Hugh

    Obama is an anti-progressive corporatist. He will be pushing the TPP and the whole neocon/neoliberal agenda on the way out the door of the White House for the last time in January 2017.

    We live in a kleptocracy. It isn’t like the Democrats in the House are any less anti-99% than Obama, but they are feeling a lot more exposed. Obama is never going to run again, but House Democrats face not one but two elections before Obama’s gone. They could blow off the NSA and Snowden scandals, but the bombing of the Obamacare rollout on top of that, the fact that insurance cancellations could repeat next year at a rate a couple of magnitudes higher than what is causing the current uproar, Obama still angling to gut Social Security, and now the brazen corporate play of the TPP is all proving a bit much for them. I mean they are used to conning the rubes but because House members have the shortest election cycle, they have to calibrate the amount of BS they can lay off on their constituents, and at the moment, they know they are wildly in excess of it.

    1. James Levy

      Hugh, you are a consistently insightful poster here, so I ask you–how can people at The Nation, Salon, and other places, people who I don’t think are CIA moles or anything like that, consistently defend Obama and swear it’s all the Republican’s fault and our unfair expectations rather than any issue with Obama himself? Is it just liberal guilt and a morbid fear of being called a racist by the Afro-uber alles crowd? What do you think is behind these efforts to whitewash and defend Obama by ostensible “liberals” and “progressives”? Hugh, anyone, what gives?

      1. savedbyirony

        The Nation has been covering the TPP for quite some time. (They published a harsh critique last fall titled something like “TPP-NAFTA on Steroids”. I hear you that in a pinch they seem to always run to Obama’s defense, but they are a Dem. establishment magazine, so i wouldn’t expect them to act otherwise (and Bill Moyers tends to do this as well). But without coming out and saying blatantly that Obama is a complete sell-out (and how could they do that without condemning most of the other Dems as well), they publish plenty that is quite damning of Obama’s/the Dems policies and actions. People have to read between the lines sometimes, and they have to think for themselves no matter what the editors opinions are. Reading comments, however, on their website and in their magazine, i find their readers often very openly critical of Obama and at times trying to push the magazine in the direction of the Greens.

      2. OIFVet

        Battered Wife Syndrome? Disclaimer: be careful when using this comparison on progressives/Obots/democrat party loyalists, good friends might not be as good a friends afterward. I speak from personal experience.

      3. Hugh

        It is an interesting question and likely has several answers. First, it reminded me of one of my favorite quotes from John Jay Chapman’s Practical Agitation which he wrote in 1900:

        “How gradual has been the process of emancipation from intellectual bondage! How inevitably people are limited by the terms in which they think! A generation of men has been consumed by the shibboleth “reform within the party,” —a generation of educated and right-minded men, who accomplished in their day much good, and left the country better than they found it, but are floating to-day like hulks in the trough of the sea of politics, because all their mind and all their energy were exhausted in discovering certain superficial evils and in fighting them. Their analysis of political elements left the deeper causes mysterious. They did not see mere human nature. They still treated Republicanism and Democracy—empty superstitions—as ideas, and they handled with reverence the bones of bogus saints, and the whole apparatus of clap-trap by which they had been governed.”

        Second, I have tried to push a class analysis (despite knowing how we have all been trained to be dismissive of them). I often talk about Establishment liberals. These are people who criticize certain wrongs and injustices, perhaps superficial, perhaps more, who back the idea of reform, but who never question the system itself and the Establishment to which they belong and which is the major support of that system. Elitism is about the establishment of professional, and more importantly personal ties and the formation of a class (the Establishment). The conferring of privileges is a big part of this, but it is more than mere credentialing. It is about validation. To understand an Establishment liberal like Krugman, for example, you have to understand that he owes his career to Ben Bernanke who hired him at Princeton. If not for that, Krugman would have finished his days as a prof at a university some place, known to a few in the profession and nobody outside it. It wouldn’t have been a bad gig, but he would never have been a star. Now of course, Bernanke no doubt chose Krugman precisely because he knew Krugman was never going to be a system challenging radical, but it also validated Krugman, it made him, and it established a powerful personal connection between Krugman and Bernanke that precluded Krugman seeking to overthrow a system or turn on a man that had treated him so well.

        Katrina vanden Heuvel is another take on this story. She was born into the Establishment. Her father was a big time New Deal attorney who helped put together the Roosevelt Institute. She is an editor at the Nation because she is a part owner of it. She was born into privilege with deep family connections to the Democratic party. Is she liberal? Does she believe in reform? Yes, but only within the confines of the system into which she was born and whose privileges she has enjoyed all her life.

        For many, a third reason is tribalism. They identify as liberal and Democrat in much the same way as people do who identify as supporters of Green Bay or as Steeler fans. Or they will embrace the lesser evil of the Democrats to forestall the greater evil of those crazy Republicans, and by doing so, think they have accomplished some good.

        A fourth reason is what lambert calls career progressivism and others have called the veal pen. There are many who derive personal and career benefits from rocking the boat but only in carefully prescribed and nonthreatening ways. They oppose certain wrongs but never enough to actually challenge them or put their progressive livelihoods on the line. And the question naturally arises as to how cynical they are about this.

        Now the thing to realize is that Establishment liberals and career progressives can partake of some or all these traits. They all will go only so far in their criticisms of the way things are but no further, and they will stop well before rejecting the system, their class, and their party.

  15. rps

    “Let’s ‘hope’ that lame duck Obama overplaying…”

    Really??? Hope, change and believe are Obama buzzwords. Let’s ride the wayback machine to the year 2007 and there’s that Obama stylized (warhol like) poster with the heavenly upward gaze drenched in red white and blue with the word HOPE???

    To be frank, or should I say franklin, “He who lives upon hope will die fasting” -I’m done with the Obama starvation diet of hopey-changey platitudes designed to placate the masses.

  16. jrs

    They have declared war on us. One could say that about many things, but the TPP is a very clear declaration of war. Though we might wish for a peaceful coexistence with reasonable patent terms that protect inventions AND balance social welfare – instead pharma, device manufacturers, the entertainment industry is planning to drop a nuclear bomb on us so to speak. Since they have forced us into a war time to decide what side one is on, I am on the 99%s. Fight back. Pirate.

    1. The Commentator Formerly Known As A Real Black Person

      Corporations are legally required to maximize their profits. The number of customers in high-value sectors who can pay the full cost for products is limited. The average person, doesn’t pay for the full cost of drugs, hire architects, computer engineers, or invest in derivatives. For obvious reasons, the number of affluent customers who can absorb any price increases isn’t increasing very quickly at ALL, so they are going to extract as much money as they can out of the current market for their products–just to keep from getting sued by investors– for not maximizing their profits. If income for all workers, was rising as fast as corporate earnings or let’s say college tuition costs–this would not be a problem but there are not enough new customers so the corporations are going to charge more for each unit of every intellectual product or service they charge.

      1. Yves Smith Post author

        No, corporations ARE NOT “legally required to maximize profits.” That’s utter bunk. They aren’t even required to maximize shareholder value. You are selling PR used by corrupt capitalists to squeeze labor and damage the environment. See here for details:

        Companies are legally obligated to honor all their legal obligations (which includes regulatory compliance and paying taxes) before thinking about profit. If they can’t do that, they should go out of business. In fact, under British law, companies are required to liquidate if they can’t meet their pre-profit legal obligations. If they are found to be “trading insolvent” as in operating when they can’t pay their bills, directors are PERSONALLY liable.

        1. The Commentator Formerly Known As A Real Black Person

          Thanks for the link.
          All right. There isn’t a legal clause that forces corporations to maximize profits but act of maximizing profits is what they consistently accomplish.
          It’s hard to accept the argument that corporations are more worried about following the letter of the law when the laws can be rewritten in their favor, they can move operations to an area with fewer regulations,and when CEOs are routinely replaced for not being able to meet growth expectations. If short-term profits and growth are not the most important things to a corporation, a lot of behavior by lobbyists and free market enthusiasts doesn’t make any sense.
          It’s not that corporations don’t consider the law but it’s that laws are not all made equal. The regulatory agencies that enforce some laws are either too weak to make themselves a top priority to a corporation. In finance, for example, the financial penalties given by the SEC are sometimes smaller than the net profit gained by violating certain rules. On the other hand, we have strong laws on labor, which are enforced. Consequently, a large corporation , in finance may be more likely to be worried about a civil lawsuit than not paying enough taxes.

          I think Douglas Levene in that link you posted comes best to representing my views.

  17. Fiver

    Even if the badly-damaged Obama can’t “get this deal done”, it is virtually certain that the next President will have another go unless the entire thrust of globalization is thoroughly discredited – a tall order, in my view, given there is bound to be a huge backlash from the “deep State” and its corporate allies with respect to independent media.

    It is crucial, then, for someone with full access to the corporate ‘wish list’, proposals, drafts etc., to get all the information out. For example, I read some time back (sorry, no link) that this deal would allow oil companies to sue any country, province, state, etc., that tried to ban fracking, even to limit some of the hundreds of toxic chemicals used in the process. We’re talking about poisoning the underground water supplies of hundreds of millions of people.

    Foiling Obama is not enough. We need to know every sick proposal any of these vampires has put forward. We need someone from Congress, or the Admin, or an opposite number in another country to find the courage to put it all on the public record, even if Obama backs off.

    The corporate globalists have been working on this Project for decades. They’ve had setbacks before, bided their time, and struck when opportune. They will do so again. It is vital that “trade deals” crafted by corporations be killed outright, not stalled.

  18. Bob

    The practical way to beat the stupid IP laws is to give influence to the lobbies for companies that hate IP laws like this. Companies like Google and Microsoft are on our side on this.

  19. Anonymous

    The medical provisions allow for the absurdity of Lance Armstrong patenting the “superathlete like me” procedure of doping. In that case he would be able to sue the living sh_t out of any athlete caught for doping – and get all his money! This danger of lawsuit might actually clean up sports more than any sport governing body ever could.

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