Negotiating in Public Doesn't Work
An underrated reason why our politicians do not get much done
We hear a particular story as to why big bipartisan legislation rarely gets passed anymore. Our politics, this story goes, are now polarized. Republicans and Democrats used to hate each other; now each side thinks the other is an existential threat to the Republic. Sometimes there’s a more partisan valence placed on it- the Republicans, it is said, have gotten so extreme as to be nihilistic.
There’s truth to these narratives. But there’s something else going on that I suspect not enough people realize. The modern political system, full of activist voices on social media, makes it extremely hard for politicians to negotiate legislative deals.
To understand this problem, we need to take a step back from politics and talk about negotiation generally. I’ll use my field, litigation, as an example. Let’s say I represent a client who is suing someone for $300,000. We feel we have a pretty strong case. The defendant denies the allegations and feels that she has a defense that could succeed in front of a jury. What has to happen for that case to settle?
Well, the judge could hold an on the record settlement conference. But the problem is, in open court, on the record, in front of the judge who will be trying the case, I can’t afford to show weakness, and neither can the other side. I can’t say “my client is willing to settle for $100,000”, because now I have admitted to the trial judge, and the other side, and the other side’s client, how strong I think the potential defenses are. And similarly, the defendant can’t say “I’m willing to pay you $125,000 to go away”, because of the same factors.
Now, the law does provide one tool for us that is useful, which is the prohibition on using settlement offers to prove issues relating to liability. In other words, if I offer $100,000, and the case does not settle, the defendant’s lawyer can’t cross-examine my client at trial and asked “how can we possibly owe you $300,000 when you were willing to take just $100,000?”. This principle- that settlement offers cannot later be used to prove or disprove liability- is an important, but limited, protection.
But there’s a more useful tool that exists in a lawsuit- confidential mediation. In a confidential mediation, I can go in and tell the mediator straight up “if you can get these guys to agree to pay us $100,000 or more, we can accept that”. And the mediator then keeps that confidential. The mediator also keeps confidential the other party telling him that she is willing to pay $125,000 to have us go away.
But knowing that information, the mediator is then able to talk to the respective clients and get them to slowly move towards the other side until we have a settlement- maybe it ends up at $112,000 or something. We end up avoiding the costs and uncertainties of the trial, because we are allowed to talk straight to the mediator. Why does that work so well? Because under the law, things we say to a mediator are treated almost like communications between lawyers and clients. They aren’t discoverable or admissible.
We are free to admit all of the weaknesses of our case. We are free to talk about our negotiating position. We are free to horse trade. Knowing that the person in that room is sworn to secrecy, and is also sworn to secrecy from us finding out what he says to the defendant and her lawyer.
And mediation works. Cases settle in mediation. The best mediators can even sometimes settle cases that I thought were hopeless to settle.
Now in the old days, something like this existed in politics. It wasn’t protected by any sort of law, but there was a gentleman’s agreement of sorts that political negotiations behind closed doors stayed behind closed doors. And as a result, all sorts of deals could be made to get people’s votes- everything from throwing in a bridge for someone’s district to including an unrelated provision to exempting a local business from a new tax or regulation.
We don’t have that anymore. One of the key aspects of the 24 hour news cycle and social media is that people demand to be informed of everything at all times, and there are tons of media sources out there who are pressing sources to provide this information. Plus, politicians themselves are asked to immediately bind themselves with public statements on bills pending before Congress.
If this were the way court cases worked, we’d never settle anything. Not only is there no confidential mediation, but there isn’t even the rule on using settlement communications to prove or disprove liability. It’s closer to a custodial interrogation under Miranda: anything you say can and will be used against you. So you best never say anything.
I have written about various legislative priorities of the Democrats, but right now there are two bills of particular interest because they potentially have some Republican support- the reinvigoration of the Voting Rights Act and the infrastructure bill. In both cases, any Republican who wants to come aboard needs confidentiality. Because the moment it comes out they are negotiating with the Biden administration, they will face accusations that they are giving away the store and demands that they take hardline positions from party activists. On the other side, Democrats in such talks face the same pressures. Look how when Joe Manchin announced that he supports the Voting Rights Act extension and opposes the broader messaging bill H.R. 1, the immediate reaction on Twitter was “how can we get him to support putting elements of H.R. 1 into the Voting Rights Act bill?” rather than “how can we help him bring some Republicans in so we can pass something?”. On Twitter, all partisans care about is purity.
The one big bipartisan success story of the last few years, the First Step Act which cut a lot of prison sentences, was an exception that proved my rule. For whatever reason, the First Step Act was not sexy and never became the domain and discussion point of online activists. As a result, the Trump Administration (most notably Jared Kushner) was able to negotiate in secret with congressional Democrats and Republicans. With no discussions leaking, they were able to horse trade, and when they finally announced the product of their work, they had already secured huge congressional majorities and President Trump’s support. It was a done deal.
We can’t have deals like that unless activists on social media stand down. Let Joe Manchin be Joe Manchin, and, even more importantly, let Chuck Schumer work behind close doors to seek Republican support and make deals, without fear that the negotiations will leak and he will be accused of giving away the store.
Bipartisanship still happens. Last month, Congress actually passed, and President Biden signed, several bipartisan bills on lower-tier issues (not as momentous as the First Step Act). Those bipartisan deals happened precisely because Twitter activists never made it their project to demand instant information and no surrender on them. But if enough people demand to know everything that is going on at all times, there can be no negotiations, and we are guaranteed gridlock.