The Bush administration is moving ahead with its underhanded effort to get governors to bind their states to the procurement rules in an array of new trade agreements including the Central American Free Trade Agreement (CAFTA), the proposed Free Trade Area of the Americas (FTAA), and many more. These rules rob state legislatures of their authority to decide how state tax dollars are spent and put an array of common purchasing policies at risk - giving closed-door trade tribunals the final word.
Common state purchasing policies that would be prohibited under these "trade" rules include preferences for recycled content and renewable energy, bans on products made with sweatshop labor, living wage and prevailing wage laws, and preferences for locally-produced goods and services - including the anti-offshoring legislation now pending in more than 30 states.
Here's how you can help ensure that your state is not trapped by the procurement rules!
Earlier this year, a letter from the Bush administration to state governors revealed a sneaky attempt was underway to get governors to "voluntarily" commit their states to comply with draconian constraints on domestic procurement (purchasing) policy included in all new trade pacts under negotiation. Governors were asked to commit states to comply with whatever procurement rules result from negotiations - effectively to deposit an open signature card for future pacts with unknown requirements. Among the pacts that were listed to be covered were CAFTA, the proposed FTAA, and a slew of bilateral agreements.
If a state signs up and agrees to comply with the procurement provisions of these agreements, the following policies are prohibited, meaning existing policies that do not conform must be changed, and states are prohibited from establishing such policies in the future:
Other nations that are party to these agreements are empowered to challenge a nonconforming state policy (no matter when it was established) as a violation of the agreement in a binding dispute resolution system established in the text. State government officials have no standing before these tribunals and thus must rely on the federal government to defend a challenged policy. The tribunals are staffed by trade officials who are empowered to judge if state policy has resulted in a violation. Policies judged to violate the rules must be changed, or trade sanctions can be imposed. As well, the federal government is obliged to use all constitutionally-available powers - for instance preemptive legislation, lawsuits and cutting off funding - to force state compliance with tribunal rulings.
To make matters worse, the process that USTR is using to seek "consent" from states is highly questionable legally. Setting government procurement policy and deciding whether to cede to policy constraints imposed by a trade agreement is within the realm of state legislatures, not the executive branch. A note from the Governor to the USTR on policy matters with such deep and broad implications should not be allowed to override the constitutional authority of state and local elected officials. Yet if a state is listed when an agreement is approved by Congress, that state becomes bound even if the initial sign-on process was not legal!
More and more people are becoming aware of the implications these pacts, and constituents in many states are demanding that their governors communicate to the USTR that their state will not be bound by the rules. State legislators are demanding notification and consultation regarding trade rules with such significant implications for their policy-making authority. The USTR has heard these initial rumblings. Yet, instead of rectifying the shortcomings of the process used to consult with states, it has continued its recruitment effort and is circulating yet more misinformation about what these rules actually mean for state sovereignty.
That's were you come in. It's a crucial time to make sure your state and local officials know that some "trade" rules negotiated behind closed doors without their input - much less their approval - are about to permanently shut down their right and authority to decide the conditions under which state tax dollars as spent.