How Not to Negotiate

by Dave Schuler on December 2, 2012

The most recent status report on the negotiations over the “fiscal cliff” certainly doesn’t give much reason for optimism:

(CNN) – House Speaker John Boehner painted a bleak picture Sunday when talking about fiscal cliff negotiations between the White House and Republicans.

“Right now I would say we’re nowhere. Period. We’re nowhere. We’ve put a serious offer on the table by putting revenues up there to try to get this question resolved, but the White House has responded with virtually nothing,” Boehner said on “Fox News Sunday.”

My understanding is that the president’s proposals rest on three legs:

  1. Raise taxes on the highest income earners while leaving the remainder of the “Bush tax cuts” intact.
  2. Leave Social Security and Medicare alone.
  3. Make raising the debt ceiling automatic.

I wasn’t entirely surprised at Senate Minority Leader Mitch McConnell’s reaction (he broke out laughing). My immediate reaction was that the president had opened with the insult price.

I must say that the entire proceedings in these negotiations look very childish to me. They’re a caricature of negotiations. Good faith negotiations, the kind that are intended to arrive at a resolution, aren’t the same as imposing terms on a vanquished foe. After all, Speaker Boehner won his own election. The president defeated Mitt Romney not the Republican Party.

The Harvard Negotiation Project outlined the following components of a successful, principled negotiation:

  • Separate the people from the problem.
  • Focus on interests, not positions.
  • Invent options for mutual gain.
  • Insist on using objective criteria.
  • Know your best alternative to negotiated agreement.

They’re doing the opposite of this. To my untutored eye it looks as though both sides are approaching the negotiations as though the only way to win is for the other side to lose.

{ 33 comments… read them below or add one }

jan December 2, 2012 at 11:58 am

In other words, so far the negotiations are an unbalanced approached to any sincere regard for the country’s fiscal health —- or, it’s all about political gain, per the usual.

steve December 2, 2012 at 12:10 pm

Query- In health care reform, Obama started out with a plan that was pretty much a combo of the 90s GOP plan and the plan of the GOP (presumed) POTUS nominee. Other than letting the GOP actually write the bill, how could they have been more conciliatory? How well did that work?

I tend to assume we dont really know what is being offered. Both sides are playing to the base while, I hope, having more serious negotiations. Volokh reported that the mortgage deduction is on the table. Others have reported that Obama offered $400 billion in Medicare cuts, on top of the $700 billion that already exist.

Steve

michael reynolds December 2, 2012 at 12:41 pm

Of course it’s about making the other side lose. This is politics. Politics is about power, and power is a zero-sum game. It could, in some alternate universe, be about governance, but Republicans don’t govern. After all, government is the problem, not the solution, right? If that’s your doctrine then you aren’t in the governing business, you’re in the winning elections business.

The president defeated Mitt Romney not the Republican Party.

This is silly. Of course Obama beat the Republican party. You might as well claim that Grant didn’t beat the Confederacy he just beat Lee. The issue of tax increases was front and center throughout the campaign, and by a margin of approximately 4.6 million American voters, the people said, “Yeah, let’s raise taxes on Drew and Michael.”

Republicans now have a choice: either raise taxes on everyone, or raise taxes only on the well-off. Given this, I don’t really see why Mr. Obama should be giving ground preemptively. And given the fact that you and many others have criticized Mr. Obama for “negotiating with himself” I don’t see why he would want to repeat that mistake.

Dave Schuler December 2, 2012 at 12:56 pm

This is silly. Of course Obama beat the Republican party.

There was more than a presidential election on November 6, Michael. There were also 435 House elections. The Republicans won a majority of those. Your analogy falls flat.

If the Democrats had won a majority of the House elections, I would agree with you. They didn’t and, as usual, most incumbents were returned to office. There was no Democratic sweep. There was no Republican sweep.

Under our system the branches of government are coequal. It’s a system in which winning the White House is an important thing but it’s not the only important thing. Further, the president is the president of the whole country not just the 52% of whatever that voted for him.

Don’t get me wrong. I’m not defending extending the “Bush tax cuts” for the highest earners. I was against them in 2002-2003, I was against them in 2010, and I’m against them now. However, the positions being staked out by both sides are incoherent. They violate the rules of a principled negotiation by concentrating on positions rather than interests. If the fiscal problem we face is not enough revenue, we can’t get that revenue just by taxing the highest income earners—all of the “Bush tax cuts” must be allowed to lapse. If the problem we have is not enough growth, taking money out of the economy by taxation is nonsensical whether it’s just the highest income earners or the top 10% of income earners.

Drew December 2, 2012 at 1:24 pm

In addition to Dave’s sober commentary (as opposed to Michael’s) in comment number four, I was left wondering how the conclusion was reached that the Republicans had mimicked the Democrats: “both sides are approaching the negotiations as though the only way to win is for the other side to lose.” Basically, the Democrats have said tax increases today and spending cuts tomorrow, cuts which we all know as an empirical historical fact, will never happen.

I negotiate for a living. My style, and our Firm’s style is win-win. I’ve seen others. Not pretty, or productive. We all know where we need to end up. Reagan got snookered on tax and cut. Bush I got snookered. I see no reason for Boehner to similarly get snookered.

I have to tell you, and I think I have about 35 successful serious business negotiations (acquisitions) under my belt – as opposed to Obama’s, oh, zero or maybe one – that he is driving a bargain only a fool would take.

Dave Schuler December 2, 2012 at 1:29 pm

Let me restate my position: I’m in favor of good governance and good policy decisions. I like approaches that move in the direction of good governance and good policies and dislike positions that move in the direction of poor governance and poor policies regardless of which political party benefits or is hurt. If Democrats benefit or Republicans are hurt by bad policies or vice versa, I’m not one whit happier.

michael reynolds December 2, 2012 at 1:41 pm

Yes, we have all kinds of elections and we can slice them up however we like. Democratic house members got more votes than Republican house members in total. Doesn’t matter. Democrats won Senate elections where they had no business winning — Montana, North Dakota, Indiana. And you can say that doesn’t matter. Democrats took all but one swing state, and even NC was within a point and a half. And yes, that’s just restatement of Obama’s victory. Democrats won the demographic groups of the future – youth, Hispanic and Asians. Democrats won the money war. Democrats took Silicon valley by astounding margins, both in terms of raw votes and in terms of dollars. The GOP presidential candidates lost all four of their claimed “home” states. IIRC not a single Democratic incumbent lost.

Here’s a fun fact to consider: Obama would have beaten any of the GOP primary candidates. He would have beaten pretty much any Republican, and he would have done it with 8% unemployment and sky-high deficits. There’s not even a plausible “what if?” senario for the GOP.

Exit polling shows Republicans losing on basically every major issue. They lose on abortion, taxes, entitlements, fairness, environment, foreign policy… They lost on gay marriage, and this time at the ballot box. Right now the Democrats have vastly superior technological capabilities and ground game. The Democrats have the issues. The Democrats have the demographics.

And right now the GOP has exactly two choices on the fiscal cliff: raise everyone’s taxes, lose their core issue and take 100% of the blame for that, or raise taxes only on the wealthy and risk being primary-ed in 2014. And there’s an extra dimension of beauty for the Dems: Democrats beat Tea Party extremists, even in red states. Democrats either get to run against the party that raised middle class taxes, slashed defense and possibly brought on a new recession, or they get to run against Tea Partiers, or incumbent candidates who’ve been beat up by Tea Partiers.

The GOP lost this election.

Now they have a choice. Either they can admit they lost and get on with adjusting to a future of making Toyotas and weird game shows, or they can hide out in the caves of Okinawa and watch the world move on without them. Their choice. But either way, Obama doesn’t have to give an inch.

michael reynolds December 2, 2012 at 1:49 pm

Drew:

I have to tell you, and I think I have about 35 successful serious business negotiations (acquisitions) under my belt – as opposed to Obama’s, oh, zero or maybe one – that he is driving a bargain only a fool would take.

Its good to see you haven’t learned anything at all, Drew. Have you noticed that your Business God was spanked by the Community Organizer? Have you noticed that he specifically beat Romney in all the areas Biz God should have excelled in? Organization? Technology? Fundraising? Personnel? Romney’s start-up tech effort has become a punch line. Data? Hah!

On election night Biz God was so fwcking clueless he thought he was going to win. That’s your data-driven, hard-nosed businessman, Drew. The entire world knew he was going to lose, and he never even saw it coming. If he wasn’t such a creep I’d pity him. The fact that you worshipped this clueless buffoon makes me wonder how good you are at business. I have to say that you have very poor taste in idols.

Dave Schuler December 2, 2012 at 2:00 pm

Michael:

By my reckoning in the general election for incumbent Democrats, the re-election rate was 78.6 percent in the House and 100 percent (four of four) in the Senate.

For incumbent Republicans, the rates were 94.3 percent of representatives and 90.5 percent of senators.

That’s incumbents only. My conclusion from this is that there’s a great advantage to incumbency.

PD Shaw December 2, 2012 at 2:06 pm

steve, your query is premised on negotiating from positions, not interests. And worst yet, its premised on the positions of non-negotiating parties, _some_ Republicans from the early 90s plus the Heritage Foundation.

Negotiating from interests would mean asking current Republicans to identify their interests and then finding points of agreement (or points of ambivalence).

michael reynolds December 2, 2012 at 2:15 pm

PD:

The “interests” of the Republicans, memorably stated first by Rush Limbaugh and then in marginally more civilized terms by Mitch McConnell, was to destroy the Obama presidency.

Hasn’t worked. So far. But Obama is still black, so they’ll be climbing right back on that hobby horse. If you think anything has changed for Republicans you’re showing a very commendable but unrealistic optimism. They won’t change. Jindal and Christie will be shouted down. They’ll spend the next four years trying to find a way to impeach.

jan December 2, 2012 at 2:36 pm

If the fiscal problem we face is not enough revenue, we can’t get that revenue just by taxing the highest income earners—all of the “Bush tax cuts” must be allowed to lapse. If the problem we have is not enough growth, taking money out of the economy by taxation is nonsensical whether it’s just the highest income earners or the top 10% of income earners.

A beautifully and simply stated analysis.

So, what would happen if you let the tax cuts lapse for everyone, and then create some serious spending cuts elsewhere, along with a focus on tax and entitlement reform for the future?

jan December 2, 2012 at 3:08 pm

he is driving a bargain only a fool would take.

Hopefully, the republicans will find some granite in their negotiating bottom lines.

Regarding Obama winning the POTUS — I see it as a begrudged win, one that had him crossing the finish line ahead, but in a less than an exemplary way — mostly by smearing his opponent rather than earning the win on touting his own record. While it was brilliant in it’s strategy, it was dirty and off-putting to many in it’s implementation, much like Sherman’s punishing march through the south.

Obama can look in the mirror every day, saying ‘I won.’ However, there are more people out there who are angry and disillusioned by his reelection, based on such futile policies and thin successes, than I can ever recall. He is not going to get the cohesive cooperation of these republicans, conservative dems, or indies unless he takes a broader look at the country, and a more humble one dealing with this latest election.

So far, though, his smug and arrogant demeanor is only causing more to give him the finger than a nod of approval. And, Obama’s continuation of being on campaign mode, focusing on besmirching his republican counterparts (now that he has finished off Romney), rather than tenaciously convening with the congressional leadership, is meant to beat his opponents down, not negotiate a balanced agreement. Such tactics of coercion and demagoguery, though, will only produce more resentment, chaos and alienation — which in a way is how he was groomed, via his experience with the Chicago political machine and mentoring as a community organizer under the Radical Rules of Saul Alinsky.

It’s just going to be one big arm twist to the finish line.

steve December 2, 2012 at 3:10 pm

PD- Who would you ask? There was no official GOP person to ask. The GOP generally ignore health care policy until they need to oppose a Dem plan. (I have read health care policy in some form or another for years almost every day.) Given that, why was it unreasonable to start with the plan that was formed by the, presumptive, next GOP presidential candidate and was supported by much of the GOP in the 90s?

What you could do, and certainly I have done, is look at proposals by long term writers on health care policy who write from the conservative POV, like Mark Pauly. The ACA actually included many of their ideas, like large deductibles, exchanges and the individual mandate. Indeed, as has been noted before, the latest iteration of the Ryan Medicare plan is remarkably similar to the ACA. The infamous death panel was actually a clause put in based upon the idea of a GOP congressman.

So, they actually did identify interests and incorporated them, at least long term interests as articulated by well respected writers. What I will readily concede is that they did not identify the interests of the Tea Party. How do you identify the interests when they are so enmeshed in incoherent anger?

Steve

steve December 2, 2012 at 3:11 pm

“If the fiscal problem we face is not enough revenue, we can’t get that revenue just by taxing the highest income earners—all of the “Bush tax cuts” must be allowed to lapse. If the problem we have is not enough growth, taking money out of the economy by taxation is nonsensical whether it’s just the highest income earners or the top 10% of income earners.”

What if it is both?

Steve

jan December 2, 2012 at 3:23 pm

This is the mood of the job-creating engine — small business owners — after the election —> Small business owners pessimistic post election, which is why, if Obama wanted to be a truly concerned, fair-minded leader he would take note of this and proceed with caution and an open mind as to the upcoming economic tango he does with all members of Congress.

jan December 2, 2012 at 4:32 pm

Tweet of the day:

Brad ThorVerified‏@BradThor

#Obama like angry spouse who wants everything: house, car, kids, & only scorched earth for other side. Did we have a divorce or an election?

Dave Schuler December 2, 2012 at 4:50 pm

What if it is both?

That’s where the suggestions I’ve been making for quite some time come in: you replace inefficient things with more efficient things. Rather than taxing income or employment, you tax consumption. Rather than spending money subsidizing contracting industries with few or no prospects for expansion, you subsidize areas that can reasonably produce future growth. You go to war only on the basis of national interest. And so on.

PD Shaw December 2, 2012 at 5:39 pm

@steve, an “interest” is a matter of general description, not a specific policy. The Democrats expressed an interest in universal care, there are a lot of ways of doing that. The Republicans expressed more of an interest in cost controls. Republicans are interested in lower taxes. They appear to be interested in cutting the growth of SS and Medicare, but don’t want to tell the voters that.

You negotiate first with the leadership, and you make it continuous. Talk and talk and talk some more. You pick out ten or so Republican senators to engage directly in talks. The ten or so who voted for Wyden-Bennit in committee, plus moderates like Snowe. Snowe’s support was obtainable, if they had taken time to work with her. (A conflicting interest, time) Someone needs to break the institutional problem that many of these people don’t appear to talk with each other.

steve December 2, 2012 at 6:18 pm

“. You pick out ten or so Republican senators to engage directly in talks.”

They all backed away when Wyden-Bennett was mentioned as a possible plan. Bennett was challenged, and lost, for his support. In 2008, when the only GOP office holders came from the most secure, conservative districts, why would any of them participate? Even Snowe, who still wanted to hold office at that point knew that. Besides, they actually did that with the Gang of Six (Eight?). Went nowhere and, TBH, it looked mostly like an attempt to delay the bill until the Dems no longer had 60 votes.

I think that you have identified the wrong problem. It used to be that incumbents were largely safe from a challenge within their own party. Now, with heavily gerrymandered districts and polarized states, it is a challenge from the extremes of the party that threaten these people and drive their decisions. To be fair, this is also going on with the left.

Steve

Andy December 2, 2012 at 6:19 pm

Pretty much everything you cite regarding data is irrelevant. The GoP controls the house. The fact that Obama won the WH does not mean that the GoP or the house must cede him advantage in any negotiation. As Dave noted, these are two co-equal divisions of government and when it comes to taxing and spending, the House is always in the drivers seat because they have the most Constitutional power in that area.

Steve,

I tend to assume we dont really know what is being offered. Both sides are playing to the base while, I hope, having more serious negotiations.

That’s my take/hope as well. I think both sides, politically, need to appear to “stand tough” to the base in order to justify a compromise later on. And, at the end of the day, I think there will be a compromise that involves a lot of kicking the can down the road.

Andy December 2, 2012 at 6:21 pm

Oops, the first paragraph in my comment above was directed at Michael.

steve December 2, 2012 at 7:10 pm
Zachriel December 3, 2012 at 7:27 am

Andy: As Dave noted, these are two co-equal divisions of government and when it comes to taxing and spending, the House is always in the drivers seat because they have the most Constitutional power in that area.

Perhaps, but most of the American people see the election as an Obama win, and expect that his policies should be given preference, especially those policies on which he specifically ran and won on. With the so-called fiscal cliff looming, the Republicans are the ones who will most likely be blamed if it goes awry.

Andy December 3, 2012 at 8:05 am

Zachriel,

Maybe, maybe not. I think it’s hard to say with any certainty “what the American people want.” I see a lot of political analysis that is little more than assumption and wishful thinking. Even if the GoP is, in reality, in the weaker position regarding the debt ceiling, that does not mean they will do what Democrats want because “caving” carries political cost too. Also, it’s entirely possible the GoP will do what Nancy Pelosi did with Obamacare – which is sacrifice their majority in the house.

Regardless, the reality remains that the House remains the primary body regarding tax and budget issues and there is simply no way for the other parts of government to steamroll them into passing something they don’t want to pass.

Drew December 3, 2012 at 11:39 am

Dave @ 1:29

Agreed, and fair enough.

Michael

Drivel. Just drivel.

Lexington Green December 3, 2012 at 1:19 pm

He is treating the GOP as a vanquished foe, because they are. Boehner is checkmated. Obama has no reason not to make a maximal demand and stick with it. The narrative is GOP intransigence and that will continue to be the narrative. Failure will be 100% blamed on the GOP, which is to Obama’s advantage. Obama wants the negotiations to fail. There is on upside for a deal on his side. He can then blame the GOP for every bad event which occurs for the next four years. If the GOP capitulates to an over-the-top demand, that is second best.

Zachriel December 3, 2012 at 4:27 pm

Andy: I think it’s hard to say with any certainty “what the American people want.”

We’re willing to cede that there is a great deal of uncertainty, not to mention opinions may change in the interim; however, there is reason for Republicans to be wary.

Steve Verdon December 3, 2012 at 5:56 pm

Yes, we have all kinds of elections and we can slice them up however we like…..

This is the smug arrogant side of of the winners in an election. Good policy? F*ck that, we won and we’ll risk a recession if necessary and blame the other side.

I should also add there is a strong streak of ignorance there as well. Of course, that isn’t isolated just to the winners; it is just more noticeable with them.

That’s incumbents only. My conclusion from this is that there’s a great advantage to incumbency.

Exactly. It isn’t that Obama was awesome, it is that he was the incumbent. Incumbents have a huge advantage in elections. This is why Obama’s election was historic…he won, but badly by historical standards. Of course, he is acting like he has a substantial mandate.

Zachriel December 4, 2012 at 8:15 am

Andy: I think it’s hard to say with any certainty “what the American people want.”

While polls are hardly certain, they can be revealing.

POLL: Americans Fear The Fiscal Cliff, Expect The Fiscal Cliff, and Blame Republicans For The Fiscal Cliff
http://www.slate.com/blogs/moneybox/2012/12/04/fiscal_cliff_poll_the_public_is_afraid_and_blames_republicans.html

Mr. X December 6, 2012 at 4:52 pm

Is Michael really oh so certain Obama would’ve beaten Ron Paul or a younger, even less easy to caricature version, i.e. Rand Paul? At least we may see an acid test of that thesis in 2016 with Hillary in the role of Obama and Boehner and the mainline Repubs finding themselves locked out by the hated ‘Ronulans’ and ‘Tea Party’ extremists rather than the other way around. It’s time for score settling WITHIN the GOP, I hate to say it. Starting with firing Boehner from the Speakership.

Mr. X December 6, 2012 at 5:00 pm

Second there’s the matter of hard fiscal reality. Even Michael knows our current deficit is something like over a trillion dollars per year. Obama wants a trillion in tax increases phased in over ten years, Boehner has reportedly said he wants several hundred billion.

All of this is tossing a few buckets a raging forest fire of U.S. insolvency to the tune of adding $8-9 trillion to the national debt over the next four to five years (since even a Republican president cannot simply turn off the spigot on January 20th, 2017). In other words these ‘negotiations’ are a farce and doomed to failure if by failure we define as continuing to make the country poorer through overspending.

To those who say we always have Bernanke’s e-printing press and foreign capital has no where else to go due to demographics (The Atlantic Smug-monthly bipartisan Establishment and ‘the rest of the world is dying demographically’ neocon crowd), I say you’re dead wrong. The world will not simply keep buying deteriorating dollars and pay the Treasury to lose money simply for ‘safety’ or because the euro sucks worse. Alternate currencies will arise, they always have, starting with real physical bulleon despite the frantic efforts to introduce as much conterfeit tungsten into circulation as possible while massively shorting the trillions worth of rehypothecated ‘virtual’ gold.

And to back up my earlier statement about the liberty movement/Paul, I can point to the total number of votes in the millions, including from registered Democrats, that Ron Paul picked up in the primaries despite his rather uncharismatic looks, sotto voice, aging 76-year-old small frame and the mostly neocon fabricated ‘racist newsletters that were actually written by Lew Rockwell’ controversy. 3 million votes and some change, plus tens of thousands of mostly young people everywhere the guy went? And he still ‘lost’ GOP primaries to a Mormon? Really? The sad fact is that the same tactics the Rove mainline GOP used to defraud Ron Paul out of at least making a serious contest at the convention were used on a much broader scale nationally to make darn sure Mitt Romney didn’t won almost any swing state. Michael’s suddenly large (but in fact 1-2% Democrat) ‘majority’ was well padded through fraud. So what will happen if a Republican Governor arises whose name is not Paul, who kicks the TSA out of his state, who introduces gold and silver as legal tender, and who legalizes marijuana? A second Goldwater? Why then, my friends, you will see Establishment panic on a scale you’ve never seen before. Washington fears the Westerner on a white horse and the libertarian majority who could get behind him.

Mr. X December 6, 2012 at 5:03 pm

This is the scary part. The commenters points above about how we’re supposed to have three co-equal branches of government seem to be undermined by the zombie look on Roberts face when he switched his Obamacare vote, Congress refusing to do anything and even rubber stamping giving the president the power to indefinitely detain American citizens via the NDAA, and now Obama essentially demanding the unilateral right to raise the debt any time he or the next president pleases, thereby making Congress irrelevant even from the point of the ‘power of the purse’ (it is already irrelevant for war powers since the Panetta told Sen. Sessions that NATO and the UN determine when we go to war, not Congress). Essentially we’re well on our way to becoming the United States of Kirchner Argentina with Obama in the Kirchners role and the TSA as the state secret police.

Leave a Comment

Previous post:

Next post: