Is the Trans-Pacific Partnership a Danger to Public Banks?

Many people fear that secretive trade talks with corporate lobbyists may prohibit public rights to control common assets.

The United States Congress is very close to granting President Obama the authority to “fast track” negotiations for the Trans-Pacific Partnership, a trade deal largely negotiated in secret that could have profound implications on financial, labor, and environmental standards in the United States. Democracy Now! reports:

The top U.S. trade official has told lawmakers the 12-nation Trans-Pacific Partnership trade deal could be wrapped up within months and urged Congress to give the White House fast-track authority to approve the deal. Protesters with the group Flush the Trans-Pacific Partnership repeatedly interrupted U.S. Trade Representative Michael Froman’s testimony before Congress. The protesters -- Dr. Margaret Flowers, Kevin Zeese and retired steelworker Richard Ochs -- were all arrested after being removed from the hearing.

And, according to Barbara Chicherio, writing last year in Nation of Change:

The Trans Pacific Partnership (TPP) has the potential to become the biggest regional Free Trade Agreement in history. . . The chief agricultural negotiator for the US is the former Monsanto lobbyist, Islam Siddique.  If ratified the TPP would impose punishing regulations that give multinational corporations unprecedented right to demand taxpayer compensation for policies that corporations deem a barrier to their profits.

For at least the last two years, since activists have been expressing concern about the TPP, many commentators have speculated that the agreement poses an immediate, long-term threat to publicly owned banks like the Bank of North Dakota. The rationale for this concern is that public banks are “state-owned enterprises” that are seen as a barrier to private profits—something against which the TPP would throw considerable barriers. In an April 2013 interview on The Real News Network, Kevin Zeese called the TPP “NAFTA on steroids” and “a global corporate coup,” warning:

    No matter what issue you care about—whether its wages, jobs, protecting the environment . . . this issue is going to adversely affect it . . . .

    If a country takes a step to try to regulate the financial industry or set up a public bank to represent the public interest, it can be sued . . . .

The suspicion that publicly owned entities would be targeted by the TPP, and that public banks would be included in that targeting, is most notably detailed in a March 2013 analysis by Sam Knight, who describes trade lobbyists as specifically concerned with the “preferential financing” afforded to public services—possibly (though not decisively) services like those financed by the BND. According to Knight,

Publicly owned enterprises, for example, are being targeted by negotiators. One such entity in the United States that has been the subject of considerable interest in recent years is the Bank of North Dakota (BND) - the only fully publicly owned financial institution in the country. The BND, which is only allowed to lend wholesale, was a stabilizing force that helped keep the already energy-rich state insulated from the shock of the financial crisis (Alaska, for example, didn't fare as well). It has also brought a small fortune to the state's treasury - $340 million in net tax gain between 1997 and 2009. Legislators in at least 13 different states have proposed studying or emulating the North Dakota model - state-owned development of central-bank style institutions guaranteed by tax revenue. But if the TPP is passed, that option might not be available. Weisel said that State Owned Enterprises (SOE) are routinely “competing directly with private enterprises, and often in a way that is considered unfair.”

“Some of the advantages that can be conferred on State Owned Enterprises are things like preferential financing,” [trade lobbyist] Weisel said. “Those are things that wouldn’t be provided to private companies - preferential provision of goods and services provided by a government.”

She said that “State Owned Enterprises - which in some cases can comprise a significant percentage of an economy - can be used to undermine what we're otherwise trying to gain from this free trade agreement.”

A spokesperson for the BND declined to comment on whether or not this outlook was perceived by the bank to be an institutional threat. But, depending on the report’s language, foreign bankers could claim that the BND stops them from lending to commercial banks throughout the state.

These concerns led Kevin Zeese and Margaret Flowers to conclude:

These same provisions about state-owned enterprises will affect public banking too. North Dakota is the only state in the US to have a public state bank, although over a dozen states and cities are considering them. Public banks are used to hold taxes that are collected, administer payroll for public employees and provide loans for public projects. The advantage is that all public dollars are managed in a public institution rather than having to pay fees and interest to a private bank. But the TPP would consider public banks to have unfair advantages and therefore violate free trade.

The greatest indication that the TPP threatens to stymie or eliminate public banks comes from trade lobbyist Michael Wendell’s testimony to the Congressional Subcommittee on Trade:

SOEs [state-owned enterprises], by definition, are interested in promoting the interests of their home country, and are all too often guided by state interests, rather than commercial interests. Why does this matter? Let’s consider a Chinese SOE. Chinese SOEs benefit enormously from below-market-rate financing by state-owned banks at rates well below what American companies pay. Many of these loans may not have to be repaid at all. How does a commercial entity here in the U.S. compete with the U.S.-based operations of an SOE that sets up shop here? . . . There are many ways that disciplines on SOEs can be developed as part of the TPP talks. The best approach would be to ensure that all transactions are based on commercial considerations.

There is certainly no question about whether TPP advocates are eager to target, penalize, and discourage public entities. Even “liberal” American commentators take a negative view of state-owned enterprises, particularly government management of banking assets. Writing for the Center for American Progress, Sabina Dewan argues:

A number of Trans-Pacific Partnership participants—among them Vietnam, Malaysia, and Singapore—manage their economies through a state-capitalist model in which the government directly or indirectly controls many of the economy’s productive assets, formal financial systems, and activities. These enterprises participate in commercial markets but enjoy state backing. They benefit from preferred access to bank capital, below-market-rate financing, favorable tax treatment, capital injections, and other advantages that distort the playing field and put American firms and workers at a competitive disadvantage.

Similarly, in his analysis of the TPP, the Brookings Institute’s Joshua Meltzer perpetuates the assumption that there is an inevitable “trade distorting impact” when public entities “do not [operate] according to competitive market-based principles.”

Making what, to me, appears to be a typical recommendation, the decidedly anti-“statist” Dewan says that U.S. negotiators “should insist that state-owned enterprises be evaluated under the agreement as if they were operating solely according to commercial considerations.” Of course, we know that public banks may well have mission statements in their charters that mandate operations for the sake of non-commercial considerations. Given this divide, it’s easy to understand why many commentators are worried that public banks would be targeted by the TPP.

It is language and assumptions such as these that lead commentators like Les Leopold to worry that, under the TPP,

Depending on the final language, it is possible that the activities of the Bank of North Dakota could be ruled illegal because “foreign bankers could claim the BND stops them from lending to commercial banks throughout the state” . . .

 The assumption that state-run financial operations “distort” the free market, of course, ignores the fact that governments, including and especially the United States, currently prop up big banks to the tune of trillions of dollars, utilizing both bail-outs and, now, bail-ins, intervening at almost every stage of the game, and not necessarily in ways that are conducive to the interests of the majority.

Such assumptions ignore an important distinction made by Ellen Brown in The Public Bank Solution: the distinction between government ownership of the means of production (also known as socialism), and the philosophy of public banking:

. . . government oversight of the system of credits and debits that undergirds a functioning economy, ensuring that the system operates effectively, fairly, securely, and to the benefit of all. Banking, money, and credit are not market goods but are economic infrastructure, just as roads and bridges are physical infrastructure. Banking and credit need to be public utilities for a capitalist market economy to run properly. By providing inexpensive, accessible financing to the free enterprise sector of the economy, public banks make commerce more vital and stable. (The Public Bank Solution, p. 3)

So the real question is whether TPP negotiators and interpreters will see banking more as a market good, or more like a road or bridge (since it is unlikely that public infrastructure such as roads and bridges will fall under critical scrutiny in the regime of TPP trade complaints). Those opposing the TPP believe that nothing in the history or trajectory of America’s big bank-driven policy making suggests that trade representatives would interpret banking as a utility; after all, the very reason that we don’t have more public banks in the United States is precisely that banking is seen as a profit-making venture rather than a utility.

All of this is speculative, though, because the TPP is being negotiated almost entirely under a shroud of secrecy—and this uncertainty doesn’t make anyone concerned about the TPP’s effects feel any better about possible outcomes.

In the end, then, we will not know what the impact of the TPP will be on the BND and other potential public banks in the United States until long after it is negotiated. Given the tendency of trade negotiators to view banks as profit-making businesses, and to argue that state-owned enterprises should be evaluated through the criteria of pure “commercial considerations,” there is understandable suspicion that passage of the TPP will significantly complicate the implementation and existence of public banks.

It wouldn’t be the first time that public banks were challenged, though, nor would it be the only international agreement-based challenge to public banking: As Ellen Brown outlines in The Public Bank Solution, the Basel Committee on Banking Supervision created new global rules (called Basel III) raising the mandatory reserves banks are required to hold, ostensibly to avoid another 2008-style crisis. As Greg Keller and Frank Jordans argued at the time, the rules are a threat not only to community banks, but also public sector banks. Similar provisions are described in this comprehensive article, which also contains more information on the TPP.


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