Whose Fault Is It Anyway?

Fair warning: rant coming on. Last week politicians from both ends of the spectrum—Elizabeth Warren (D-MA), J.D. Vance (R-OH), Josh Hawley (R-MO) and others—objected to Office of the U.S. Trade Representative (USTR) personnel (Ambassador Katherine Tai and USTR staffers) actually talking to representatives of “Big Tech,” which means Amazon, Google and others, about the digital trade provisions of the Indo-Pacific Economic Framework (IPEF). Apparently, talking to people who disagree with these senators is not allowed. The senators also seemed particularly upset that the individuals being consulted from these companies were former USTR employees, some at senior levels. A popular term on the left, “revolving door” came up, although for most of the people criticized, the door didn’t revolve; it simply opened. They were in government, and then they left and have not returned. One would think listening to the critics that the only acceptable post-government occupation is in a monastery—or the unemployment line.

This is indicative of how low our politics have sunk. Government officials have a duty to talk to stakeholders, and if the topic is digital trade, I can’t think of more obvious stakeholders than companies that provide digital trade services. The fact that they have a stake in the government’s decisionmaking—which is why they’re call stakeholders—should not disqualify them from giving advice. They also have a constitutional right to petition the government, just like all the rest of us, which the senators seem to have forgotten.

The real issue here is this particular group of stakeholders is probably telling USTR things the senators don’t want them to hear, but that is hardly a reason to shut them out of the process. Beyond the constitutional argument, they are also the ones with actual expertise. The companies in question provide the services that are at issue and are in the best position to explain the impact of anything the government proposes and whether it is technically feasible—not a small issue in this sector.

Of course, they have a built-in bias in favor of their companies’ interests, but it is government officials’ task to unpack that and make a decision in the broader national interest. And there, I think you have to count on the integrity of the officials in question who, at senior levels, were subject to Senate confirmation. In this particular case, I don’t have a lot of confidence Ambassador Tai will do what I think is in the country’s best interest, but I have complete confidence she will do what she thinks is in the country’s best interest, regardless of pressure from outside parties. That is exactly what she is supposed to do, and it is really all we have a right to ask her to do.

But I’m not finished, because the underlying debate is rant-worthy as well. The issue on the table is which provisions on digital trade USTR should propose to include in IPEF. The recommendation of both the right and the left is not very many. They fear that any provisions that commit the United States to taking—or not taking—specific actions will tie Congress’s hands in the future.

This is a reflection of the unfortunate fact that in many digital-related areas, there is no national policy—for example, on privacy, data localization, content moderation, protection of children, and rules for competition. The senators are concerned that a trade agreement that addresses those issues may make it more difficult for Congress to act in the future. That, of course, ignores the rather messy fact that we don’t have those national policies because Congress, including the senatorial critics, has failed to act. In fairness, it is not for lack of effort on the part of some members of Congress. These are hard issues, and agreement has proved elusive. However, they are hard everywhere, and that has not prevented the European Union, the United Kingdom, Japan, and many others in Asia from moving forward. The United States’ failure to do so is an embarrassment for Congress, compounded by their efforts to prevent the executive branch from acting on its own.

As usual, there is a subtext here. The senatorial critics would not be so upset if they believed USTR was going to advance positions they agree with. So, this is really a policy argument masquerading as a process issue. USTR should not be allowed to engage in the normal, constitutionally permitted consultation process because it might lead to the “wrong” outcome. I suspect that if it were going to lead to the “right” outcome, the process would be fine.

The irony of this is that USTR has done a pretty good job of doing exactly what Congress has told it to do, at least since the Trade Act of 1974—do your best to embody U.S. law and practice in trade agreements. If you talk to our IPEF negotiators, they will tell you that is precisely their objective. The critics’ problem is that they don’t like current U.S. law and practice, particularly on competition policy. Their dilemma is they don’t seem to have the votes to change it—and disagree amongst themselves on what changes would be appropriate.

The result is they are making USTR and some of its former staffers whipping boys for their failures. This is particularly distressing on the personal level. I know the people who have been criticized, and they were highly competent public servants who served their country well while in office. I have no doubt they are continuing to do that in the private sector. We should expect the same from our elected officials—who, by the way, will sooner or later return to the private sector themselves. Thus far, in this area, they have been a disappointment.

William Reinsch holds the Scholl Chair in International Business at the Center for Strategic and International Studies in Washington, D.C.