Harry Shearer interviews Yves Smith: Corporate Pillage Part 1 - secret "worst of both worlds" trade agreement negotiations
Yves Smith of Naked Capitalism spent the hour with Harry Shearer on Sunday's Le Show. In the first half of the program they discussed the new international trade agreements being worked up in secret. Corporations are invited; guess what, congresspeople and you and I are not. In the second half, she takes apart JP Morgan Chase's "screaming deal" $13 billion settlement.
Yves blogs about the interview here, Your Humble Blogger Discusses the Pending Trade Deals and JP Morgan on Le Show!
Listen to the podcast here. Transcript for the first half below fold.
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Harry Shearer interviews Yves Smith
Le Show, November 3, 2013
Transcript - Part 1
Interview recorded October 28, 2013
Here it is! From deep inside your radio.
HARRY SHEARER: This is Le Show, and there is something that has been hanging in the air not known to most people but placed on the fast track by the Obama administration with a certain amount of alacrity, if I’m not being redundant, and if I am I’ll repeat myself. It’s a set of free trade agreements, so called, with Japan and with the European Union. There’s been very little coverage of it in the mainstream media so I thought it might be a fun idea to spend some time today with the person I know who has been writing about it with, again, as usual, deep knowledge, Yves Smith, the creator of the Naked Capitalism blog, who spent a good couple of decades in the financial industry and is now doing penance for her sins by telling us what this stuff is all about. Yves, welcome back.
YVES SMITH: Thanks so much, Harry.
HARRY SHEARER: So these are called free trade agreements, so we’re supposed to think this is like another NAFTA, like that’s supposed to be a good thing, but what you have been writing suggests that it may have even more insidious consequences than NAFTA has had, if not for jobs in this country, for other things.
YVES SMITH: For regulations, basically. I mean in fact you’re correct that it’s a real misnomer to call this a free trade agreement. The purpose of these two agreements, and so as you pointed out correctly, there are two separate ones but they are believed to be highly parallel in structure, the European deal and then the one that involves Japan is called the Trans-Pacific Partnership. But very little is known about them despite the fact that they, if approved, would actually have quite dramatic and you might almost say cataclysmic consequences. And the only reason we know anything about them is that certain parts of them have been leaked. The U.S. trade representative is refusing to release anything, even to congressmen. They are only allowing congressmen themselves to read basically summary terms, and if you’ve ever worked on any contract, summaries really don’t tell you what the detailed terms are. I mean a lot of the art in the agreement lies in the exact language.So it is specifically to create a legal structure that supersedes national law. And in the particular parts that are most disturbing, what it would do to environmental regulations, labor regulations, intellectual property - the whole construct is that if national regulations inhibit the ability of corporations to profit, they as investors can sue for the lost profit opportunity.
But to give you an idea of what the implications are, the operating clause of the Trans-Pacific Partnership – and this is part of some of the leaked text. Admittedly it may have changed, but this was in the first chapter. “Each country shall ensure the conformity of its domestic laws, regulations and administrative procedures with these agreements.” So it is specifically to create a legal structure that supersedes national law. And in the particular parts that are most disturbing, what it would do to environmental regulations, labor regulations, intellectual property, and the way that it works technically – this was something that was in NAFTA but becomes even more powerful under these deals is there’s a notion under NAFTA that investors basically have rights too if they suffer a profit opportunity. Now under NAFTA it’s more circumscribed, but for instance in Canada the Quebec government has a prohibition to protect the St. Lawrence River valley against fracking. And some of the fracking companies are trying to sue the Quebec government for 250 million dollars because they are foregoing profit opportunities. So the whole construct is that if national regulations inhibit the ability of corporations to profit, they as investors can sue for the lost profit opportunity. They don’t have to go through national governments to sue for the lost profit opportunity.
HARRY SHEARER: Okay, let me unpack – I hate that term, but let me get into the weeds – another cliché – on some of this stuff. First of all, what you just finished saying seems to wipe away the whole concept of sovereign immunity. We have been told, particularly in the context of the flooding of New Orleans by virtually the incompetence of the United States Army Corps of Engineers in constructing a so-called hurricane protection system, that you can’t sue the federal government. So people who had their homes and their businesses and perhaps their fathers and mothers washed away in a flood of manmade origin cannot sue the federal government for that misfeasance and malfeasance, but a corporation deprived of a profit opportunity can? Is that what you’re saying?
YVES SMITH: That’s correct. Actually it has to do with regulations and rules that interfere. I’m not sure that incompetence by a specific body would qualify. Again, because we don’t have the text.
HARRY SHEARER: Yeah.
YVES SMITH: We don’t know what’s in this deal.
HARRY SHEARER: Okay. Now secondly, what you’re saying sounds like something that would in days of yore have the right wing in the United States up on its hind legs and screaming about world government. Where are they?
YVES SMITH: That’s a good question. I mean, it’s amazing that they’ve kept it so much under wraps, and the belief, you know, among a lot of people that I’ve been – the few people who are covering this, is that if the right understood, the right would be every bit as upset as the little bit of the left that’s been upset about this too. But the Obama administration has done a tremendous job of keeping this all under wraps. You know, at the very top of this show you commented how very little has been written about it, and that’s because of these extreme secrecy provisions, that only little bits of the text have been leaked, nobody really knows what’s happening, even the congressmen who’ve read the text have been told they can’t talk about it in any meaningful way. I think the only one who squawked about it a bit is Alan Grayson. And even then he said it took him six weeks of fighting with the trade representatives office to even sched– they were basically stonewalling him on scheduling a time for him to read what they’d allow him to read.
HARRY SHEARER: When did this whole process begin of introducing these treaties or agreements and the negotiating process? Has this been going on for like the past year or two?They now have 11 nations in the TPP, and the Trans-Pacific Partnership is basically an everybody-but-China deal that they want in Asia.
YVES SMITH: It’s been going on for about the last couple of years, although they’re try– and I don’t think they’re going to get it done – with the Trans-Pacific Partnership, it enlarged significantly earlier this year when Japan agreed to join. They now have 11 nations in the TPP, and the Trans-Pacific Partnership is basically an everybody-but-China deal that they want in Asia. It’s also got a geopolitical aim of isolating China, so it’s sort of a two-fer. But they’ve been underway for roughly a two-year period. They are trying to wrap up the TPP by the end of this year. They had a meeting in Bali that Obama missed, and there was a really funny State Department briefing. I mean, and that’s the other thing which is weird. They’ll do these briefings and it’s like an unnamed State Department official. I mean, it’s a roomful of journalists, and the fact that, you know, they won’t officially publish who gave the talk is really kind of appalling. But he –
HARRY SHEARER: But that’s standard Washington procedure, isn’t it?He got up there and he just kept maintaining, “We’re going to get this done by the end of the year,” and everybody in the room is saying, “This isn’t happening because of X, Y, Z.”
YVES SMITH: That is standard, but that’s – no, that’s standard Obama administration procedure. This was not, this whole "unnamed administration official" is a bad Obama invention. But in any event, you know, he got up there and he just kept maintaing, “We’re going to get this done by the end of the year,” and everybody in the room is saying, “This isn’t happening because of X, Y, Z.” They just went down a list of, you know, parties to the deal that had significant problems that weren’t going to be resolved by year end.
And on the European front, there may be – I mean, knock on wood – but there may be some interesting blowback from the Snowden revelations in that, you know, it’s come out in the last week that the administration was tapping communications of 35 world leaders, and one of them is clearly Angela Merkel, who had her personal phone tapped. She’s got a secure, I guess, you know, some kind of secure phone she uses for business, but she just had a regular Nokia she used for personal communications. And the Germans are outraged. I mean, the Europeans take, you know, secrecy much more seriously than we do in general and they’ve already –
HARRY SHEARER: Well, she grew up in East Germany, so she should know.
YVES SMITH: Yes. She should know. And even though she hasn’t said anything, a very senior deputy who is slotted to become her new number two has basically said, “I don’t see how we can go forward with this deal. You know, we don’t regard America as a trust–" I mean, I’m exaggerating the language a little, but it was very close to that kind of statement. So it’s at least very seriously delaying the EU deal. Whether it’s going to derail it is an open question.
HARRY SHEARER: Let me get back to the basics of this. Both you and, under your influence, I have suggested that free trade may be a misnomer in this deal. What are the impediments to trade between the United States and the European Union? When we hear “free trade agreement,” I think we imagine, “Oh, there’s a bunch of tariffs that are going to come down.” Are there are a lot of tariffs between the United States and the EU right now?
YVES SMITH: No, there really aren’t. Trade is substantially liberalized internationally. I mean, in fact, ironically a lot of the remaining, quote, “restrictions” – because it’s not really tariffs, it’s subsidies – America’s agricultural subsidies. That’s what tanked the Doha round, which was going to be a global trade agreement, was a lot of the emerging countries said, “What do you mean? You know, we’re agricultural exporters and we can’t export our goods to the U.S. because of the way you subsidize a whole bunch of different products.”
HARRY SHEARER: Particularly sugar, right?
YVES SMITH: Particularly sugar. Sugar’s a really big one. So this deal basically, even though it’s got France in it, which also has large agricultural subsidies –
HARRY SHEARER: Yeah.
YVES SMITH: – they’ve sort of reconstituted this deal and are basically trying to sort of get something through in sort of two pieces with a subset of, you know, rather than a global deal, instead it’s going to be two big international deals with most everybody who counts in them.
HARRY SHEARER: Except for China.
YVES SMITH: Except for China. And each country’s got some specific objection. Like the French have objected around their cultural subsidies. And, you know, Joseph Stiglitz wrote a piece basically saying it’s ridiculous. I mean, the French film industry – you think, you know, French films running in American art houses are a threat to Hollywood? And yet that’s the kind of thing that they want to prohibit in this deal.
HARRY SHEARER: Mm.YS: Fast track is a specific authority that Congress can give to Obama, basically waive their right to look at a deal and approve it, and they actually have not yet given fast track authority on this. So there is an opportunity to intervene and tell your congressperson that this deal is really terrible and they should not give fast track authority.
HS: But that really, in reality, would only happen if the terms of the deal were made public.
YS: Yeah. Exactly. So, yes, people don’t know enough to be upset. It’s very hard to get people upset about something that’s being kept so secret. But everybody should really be extremely upset about this.
YVES SMITH: There are also some pretty just inept provisions around intellectual property. The Electronic Frontier Foundation came out last week and signed a letter against the deal, and one of the things they said was basically – aside from the fact that they don’t like it generally, they also basically said there are a lot of things that are basic to the operation of the internet, like being able to store temporary copies of things, that this deal would make illegal and that it would just create chaos. So even on the things it’s trying to do, it’s not terribly well thought out. You know, there’s another potential – I mean, again I don’t want to get hopeful because I think the real key is, and you mentioned at the top when you were sort of making a joke about fast track. In fact, the reason that the fast track language is actually important is that fast track is a specific authority that Congress can give to Obama, basically waive their right to look at a deal and approve it, and so they have asked for but actually have not yet given fast track authority on this. So this is actually, there is an actual opportunity to intervene and, you know, tell your congressperson that this deal is really terrible and they should not give fast track authority.
HARRY SHEARER: But that really, in reality, would only happen if the terms of the deal were made public.
YVES SMITH: Yeah. Exactly. So, yes, people don’t know enough to be upset. It’s very hard to get people upset about something that’s being kept so secret. But everybody should really be extremely upset about this.HS: But are there legitimate reasons, while this is in the negotiating process, for keeping the U.S. desired language so secret?
YS: No. Particularly since they’re actually sharing it with something like 600 corporate representatives.
HS: Any labor unions among them?
HARRY SHEARER: Well, let’s take as written, or take as read, the easy jibe that this is the most transparent administration in history, dot dot dot. But are there legitimate reasons, while this is in the negotiating process, for keeping the U.S. desired language so secret?
YVES SMITH: No. Particularly since they’re actually sharing it with something like 600 corporate representatives who are parties to this deal. So basically the corporations that have an interest in this deal going forward get to see the language. Why doesn’t the public get to see the language?
HARRY SHEARER: When you say they’re parties to the deal, are they – they’re not –
YVES SMITH: I mean, I’m sorry, they’re not formal signatories, but I’m saying that there’s some actual language they have that’s really peculiar. There’s like a defined term of art they’re using that’s close to that, and I don’t think I can lay my hands on exactly that language, but I was struck by how it was another one of these Orwellianisms, you know, in terms of these, you know, special 600 or so people who get to see the language.
HARRY SHEARER: Now, I’ll ask you a dumb follow-up question. Any labor unions among them?
YVES SMITH: No.
HARRY SHEARER: (laughs) Why is that not surprising?
YVES SMITH: Shouldn’t.
HARRY SHEARER: (laughs) Are these basically mirror images of each other, these two agreements?
YVES SMITH: They’re believed to be. Again, because there’s going to be some negotiation, they probably won’t be exactly parallel, but everybody’s highly confident that it’s in both agreements, that they basically started from the same template in both deals and the high concept is that the investors have rights and if investors feel the nation-based regulation has interfered with their ability to profit, that they can take it to this EU trade deal court or Trans-Pacific Partnership court and, you know, that they would be able to get awarded damages, that private parties can get damages.
HARRY SHEARER: Okay. And who would appoint the members of these courts?
YVES SMITH: Again we don’t know. We don’t know.
HARRY SHEARER: (laughs)Not only is this deal secret now, it was leaked in Japan that the signatories are required to keep the terms secret for four years, which will basically insulate governments that voted it in from the wrath of the voters for a little while.
YVES SMITH: Oh, and another juicy bit. It was leaked in Japan – not only is this deal secret now, it was leaked in Japan that the signatories are required to keep the terms secret for four years, which will basically insulate, you know, governments that voted it in from the wrath of the voters for a little while.
HARRY SHEARER: You mentioned earlier, among the kinds of regulations or laws that corporations could challenge under this agreement if it damaged their profit opportunities were financial regulations. Would this mean that the whatever value has been gained in a regulatory way via the Dodd-Frank law would go bye-bye?
YVES SMITH: Almost certainly yes, because you could basically they could look and find some country that had more liberal regulations and argue that relative – you know, it sure is a race to the bottom.
HARRY SHEARER: Well, British Virgin Islands has (laughs) less regulations.
YVES SMITH: Well, they’re not party to the deal.
HARRY SHEARER: Oh. Okay.
YVES SMITH: You would look to any country that’s party to the deal and say, you know, you know – so for instance right now one of the things that the banks are, you know, that they play it both ways. They’ll say, “Oh, America you can’t possibly impose tougher regulations on derivatives.” That’s been one of the big fights, because Gary Gensler at the Commodities Futures Trading Commission has been pushing under derivatives authority he has to impose much tougher standards, not just on American companies but on foreign companies that are doing business in the United States. Basically, the way it’s written, he can do that, and there’s just been all kinds of howling about that, and the excuse has been, “Oh, they’ll all go do it offshore.” “Oh, they’ll all go do it in London or some more permissive center.” And that actually could be a basis for argument: “We want to do this with a U.S. customer. We could route it through London but that would cost us more, or we couldn’t do it readily in the U.S. Well, now we’ll make you pay.”Another thing that this deal would prohibit is capital controls. For example, money laundering provisions, that’s a capital control.
Another thing that this deal would prohibit is capital controls. And the thinking on capital controls has really changed, because capital controls are not black or white when people think of, you know, if you say “capital controls,” people think of, “Oh, you can’t move any money in and out of the country at all,” when in fact things like, for example, money laundering provisions, that’s a capital control. The fact that you can’t move $10,000 without reporting somewhere, that’s a loose form of capital control.
HARRY SHEARER: Yeah. Every time you fly into the United States, you have to fill out a form that says, “Are you or are you not bringing more than $10,000 –”
YVES SMITH: Monetary, monetary equivalent, exactly. So one thing that the IMF has changed its view and a lot of economists have changed their view is that they realize in the wake – we had a financial crisis in Asia in 1997, and what the Asian countries did after they had, they had hot money flood in, quick, fast-moving international capital, and then it basically ran away, and that left their economies in a mess, and the IMF came in and bailed them out. And the IMF bailouts as what we’re seeing in Europe are extremely draconian, and the Asian countries said never again, and they built up – they set their currencies really low so they could build up these great big foreign exchange war chests so that they would never need to go to the IMF again. Well those have turned out to be very distortive for a whole bunch of reasons and the IMF has said basically, “Gee, this isn’t really such a good idea, and maybe it’s actually better to allow countries to have some capital controls to make it harder for this hot money to run in and out.” The IMF has now come around and said, “We actually think, you know, certain types of controls are actually probably a good idea.”
And Malaysia is one country that actually did pretty well in this last crisis, precisely because they had those kind of controls in place. Chile is another. And so both of them are objecting to this deal rather vociferously, and that’s also going to be really funny if we have the IMF come in and do – in fact, the IMF is now even considering those as part of their rescue programs, implementing capital controls. So then what happens if the IMF comes in and puts in a program and as a condition of its rescue says, you know, “We want you to restrict, you know, money going out.” For example, you’ve got these countries that have become, you know, basically, like Greece has become a tax haven. You know, what if somebody decided to go in a country and it’s got all this, you know, illicit foreign capital in there and they say, “Hey, let’s quickly do over a week–” you know, they do things over weekends now – “let’s do something fast over a weekend and we’ll like slam the gates down and keep this money that’s not paying any taxes in the country and, you know, hit it with the 5% tax,” which is a fraction of what they should have been paying all along. I mean, that could easily be the term of a bailout, and yet that will now be impossible under this deal.
HARRY SHEARER: Let me ask you a more theoretical question. Once you accept the notion of global corporations, and certainly as a part of that once you accept the idea, as we’ve seen in the case of Apple, that corporations who for tax purposes are stateless, domiciled nowhere in terms of a lot of their income, the income resides in no named jurisdiction, once all that becomes normalized, does not the terms as we understand them of these agreements almost follow necessarily?
YVES SMITH: I don’t – no, that I act– particularly with the case of Apple, no, because they’re a retail consumer product company and they have retail stores. If nothing else, you can hit them at the point of sale. You can always get people who sell end-to-consumer or end-to-business at the point of sale. So they can’t get around that very readily, and again, back to it’s sort of this lack– buying this free trade ideology. Again, if we had any will, you could say, “If you don’t pay taxes, we’ll tariff your goods.” You know? I mean, there are a lot of ways if there was any will – you know, “You either pay taxes somewhere or we won’t let your goods in.”
HARRY SHEARER: Mm.Free markets is kind of an incoherent ideology, because to have the conditions to get the benefits of a free market, you actually need a government to make sure nobody gets monopoly power and to make sure contracts are enforced, to make sure you don’t even have oligopoly.
Similarly with free trade, all the models are based on frictionless trade, you know, no financing costs, no shipping costs, nothing happens at the border, no foreign exchange costs, all that stuff. Well, you’re never going to get there.
YVES SMITH: But the thing which is very disturbing about – because it’s very similar to the free markets ideology – it’s similar but different. Free markets is kind of an incoherent ideology, because to have the conditions to get the benefits of a free market, you actually need a government to make sure nobody gets monopoly power and to make sure contracts are enforced, to make sure you don’t even have oligopoly. So you basically can’t have the bennies of the fantasy free market if you tear down all the regulations. Similarly with free trade, all the models are based on frictionless trade. They’re based on, you know, no financing costs, no shipping costs, nothing happens at the border, no foreign exchange costs, all that stuff. Well, you’re never going to get there. And there was a very good paper in 1953, I think it was, called – it’s a Lipsey-Lancaster theorem called the Theory of the Second Best. And they actually used trade as their specific example for this. They said basically the naïve assumption that economists use, if you can’t get to the idealized state, that the closer you get to it is better. And they basically said no. They said if you can’t get to the idealized state, you actually have to evaluate your specific second-best choices, and they used an example where getting closer to free trade actually made things worst for all the participant countries. So, yet everybody – but that’s part of the propaganda, that, oh, you can’t interfere with, quote, “free trade,” that going in the other direction – well you actually have to look at the tradeoffs. It’s not a given that more liberal is better and less liberal is worse, because you’ll never get to perfect.
HARRY SHEARER: Mm. Just in summary, the regulations and/or laws – right? This would apply to laws –
YVES SMITH: Right.
HARRY SHEARER: – national laws as well as regulations that perhaps would be endangered by this would include environmental, labor and financial laws and/or regulations.
YVES SMITH: Right. Oh, oh, and also include, and the other thing is it strengthens intellectual property rights. So for instance, generic drug makers. I mean, that’s been one issue that in a lot of countries they don’t like paying the American companies. For example, I think it’s India and Brazil have started basically making – and even Canada has got a lot of – they’re, they get permission to make generics. This would make it easier, much easier for U.S. companies to go against generic makers internationally, and kill people basically, because, you know, many of these drugs that cost almost nothing to make them –
HARRY SHEARER: Yeah, India has taken on itself to manufacture generics –
YVES SMITH: Right.
HARRY SHEARER: – with or without the permission of the pharmaceutical company that has the patent, is that right?
YVES SMITH: Right. That’s correct.
HARRY SHEARER: And so that’s what they’re trying to change.One thing that the pharmaceutical companies do in the U.S., you can extend the life of a patent – and again the labeling is Orwellian. It’s called a New Drug Application.
YVES SMITH: Yeah. They’re trying to squelch that. And in some countries the patent rules are not as indulgent as in the U.S. For example, one thing that the pharmaceutical companies do in the U.S. – and again you’d have to look nation by nation, but I would suspect a lot of other countries don’t permit this. It’s one of the things in the U.S., you can extend the life of a patent, but – and again the labeling is Orwellian. It’s called a New Drug Application. Like, for example, if you take an existing drug like – I’ll pick a dumb one, you know, Wellbutrin. Wellbutrin, it used to be that you had to take it – they had a version that you would have to take three times a day. Well then they made a version you only need to take once a day. Well that was actually a New Drug Application that permitted them to extend the life of the entire patent.
HARRY SHEARER: They did that with Nexium, too.
YVES SMITH: Yeah.
HARRY SHEARER: Nexium was The New Purple Pill because it replaced the old purple pill that, again, they’ve fiddled with the molecules and made something just slightly different with the same effect and the same purpose and the same color –
YVES SMITH: Right.
HARRY SHEARER: – and it got a New Drug Application.So here we’ve got, on the one hand, from a regulatory standpoint everything’s getting weaker, and on the intellectual property standpoint they want to make everything more corporate friendly, so it’s deliberately the worst of both worlds.
YVES SMITH: Right. Right. Right. Exactly. So they can extend the life of patents with these NDAs, and I would doubt that all countries – there may be some countries that permit that kind of patent extension, but I would doubt that all do, and I would doubt even that many do. So here we’ve got, on the one hand, from a regulatory standpoint everything’s getting weaker, and on the intellectual property standpoint they want to make everything strong– more corporate friendly, so it’s deliberately the worst of both worlds.
HARRY SHEARER: And would that also apply to copyright? I mean, there’s been this sort of slow-motion movement in this country, thanks to the Disney company and others, to extend the length of copyright protections so that nobody can draw a moustache on Mickey for more and more years. That would be –
YVES SMITH: Yeah. And again I would assume that that would shake out similarly, but I don’t know what what the – again, because everything is secret, but, you know, again one thing that the Electronic Freedom Foundation talked about was the fact that even the Supreme Court in the U.S. had found that you buy something abroad where they’ve got looser copyright restrictions – so copying is permitted, right? You know like here we’ve got, from Microsoft, they only let you copy something three times.
HARRY SHEARER: Mmmhmm.
YVES SMITH: You know, they only let you make three copies of your Microsoft disk. You buy something overseas and the rules are different. They’re more permissive in terms of copies. If you were to take that Microsoft disk you bought overseas in some country where the rules were more liberal and you did more copies here, there was a series of lawsuits trying to say that that wasn’t permitted here, and the Supreme Court basically said that’s ridiculous. You know, they bought that overseas, the rules are different, it’s okay. The EFF said this would be caught under the new rules, that that sort of copyright rule would be enforced.
HARRY SHEARER: So the more stringent of the copyright rules –
YVES SMITH: The more stringent standard would – so I would assume –
HARRY SHEARER: Would preempt all others.
YVES SMITH: I would assume. So, yes, I would assume on the copyright life you’re probably correct, but again, I just don’t know definitively because we don’t know for sure, but that would be my assumption, that what you’re saying is right.
HARRY SHEARER: Wow.
YVES SMITH: Mmmhmm.
HARRY SHEARER: All right. Let’s take a break and come back and talk about a more pleasant subject, JP Morgan Chase. This is Le Show with Yves Smith of nakedcapitalism.com.
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Part 2 of the interview is here