Bringing Congress back to the negotiating table

Political science offers a new perspective on Washington gridlock.

By — on / Dealmaking

“I’ve always had a Republican partner, every time,” says former Democratic senator Chris Dodd, speaking of his legislative victories during his 30 years of service.

Members of Congress do not always need bipartisan support to push through their legislative agendas, yet some of the most significant initiatives passed by the U.S. Senate and House of Representatives were the product of intensive negotiations between the two major parties.

Yet bipartisan negotiation is rare in Washington these days. And in his January State of the Union address, President Barack Obama revealed that he will pursue many of his initiatives in the remainder of his second term by circumventing Congress altogether.

Many reasons for the recent inertia are familiar ones: fierce competition between the two major parties due to close elections, the pressures of fund-raising and special-interest lobbying in Congress, and redistricting, to name a few. As a result, lawmakers tend to view the pie of available resources as fixed and to ignore the other side’s perspective.

This is unfortunate, as Congress is well positioned to find integrative solutions to policy problems, given the power it has to address a multitude of unrelated issues simultaneously. By identifying different priorities across these issues, members have abundant opportunities to make value-creating trades.

In an effort to inspire Congress to take up the lost art of negotiation, the American Political Science Association (APSA) convened a global task force of political scientists and negotiation experts and recently published their conclusions in a report, “Negotiating Agreement in Politics.”

The task force identified four “rules of collective engagement,” summarized here, that might spur greater collaboration in Washington. Though the report is tailored to Congress’s unique challenges, business negotiators may find that the results apply to their own intractable conflicts as well.

1. Build unbiased advice into the process.
When debating approaches to reducing the national debt, each party typically enlists opinions from economists at the far ends of the political spectrum. With each party swayed by its experts’ clashing conclusions, it is no surprise that negotiation seems fruitless. The tendency for members of Congress to cherry-pick expert opinions when arguing their points of view contributes to the partisan divide.

By contrast, some nations build unbiased fact-finding into the negotiation process, assigning nonpartisan third parties to research solutions and propose recommendations for thorny issues. Nonpartisan fact-finding helps negotiators overcome self-serving interpretations of the “facts” and develop a common language. In 1995, for example, the Italian government launched a successful effort to address a crisis over government pensions by soliciting independent technical expertise on the issue and then negotiating closely with labor unions based on the results.

2. Mandate repeated interactions.
In 2012, a so-called Gang of Eight of U.S. senators—four Republicans, four Democrats—formed to tackle the hot-button issue of immigration reform. For months, the senators and their staffs met regularly to hash out an immigration bill covering issues ranging from border security to citizenship. The bill passed handily in a vote of 68-32 in the Senate, though it was rejected by the more partisan House of Representatives.

In its report, the APSA finds evidence that repeated interactions between opposing parties help them find common ground and take the long view. Congress could promote bipartisan negotiation by requiring the two sides to meet at regular intervals, as the member states of the United Nations and other international bodies do, and by strengthening the role of congressional committees.

3. Consider penalty defaults.
In Congress, inaction on an issue typically goes unpunished—and, indeed, is often rewarded by special-interest groups that prefer the status quo. By contrast, “penalty defaults” for failing to negotiate or failing to meet a negotiation deadline can impose real costs on Congress. A penalty default is an undesirable situation that all parties involved will seek to avoid.

Congress has adopted penalty defaults in the past, with mixed results. In 2011, the bipartisan Joint Committee on Deficit Reduction failed to reach a much-touted “grand bargain” even after setting punishing cuts to military and entitlement programs. The cuts, known as sequestration, failed to frighten lawmakers into reaching agreement because they foresaw little political fallout from inaction.

By contrast, the specter of a middle-class tax increase did motivate a compromise agreement in the “fiscal cliff” crisis at the end of 2012. To be effective, penalty defaults may need to impose political costs on individual members of Congress in addition to ideological costs on their parties.

4. Beware the “spectator effect.”
In the summer of 2013, when 98 of the Senate’s members met for a retreat, “there was no rancor at all,” reported Republican senator John Boozman. “I think if the American people were watching, the tone would have been quite different,” he said.

As this anecdote suggests, the “sunshine” laws that exposed congressional dealmaking to public view in the 1970s have been a double-edged sword. Greater openness promotes more ethical decision making and public accountability, but it can also cause lawmakers to negotiate cautiously for fear of antagonizing supporters due to a so-called spectator effect.

Politicians who meet behind closed doors have greater freedom to explore policy options that deviate from the party line. But privacy can be elusive: Bipartisan negotiations on deficit reduction in 2011–2012 were thwarted by leaks on both sides. Members of Congress need to recognize that the relative privacy of brainstorming sessions can spell the difference between a deal and no deal.

The Program on Negotiation at Harvard Law School
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