Why Can't Congress Negotiate?

Why Can't Congress Negotiate?

Created: 27 January, 2014
Last update: 15 October, 2022
 explains the Captain in the 1967 film,

Cool Hand Luke.

Communication is at the root of any successful negotiation. When we fail to communicate, we fail to negotiate: no compromise; no consensus; no collaboration; no action.

The U.S. Congress has shown a complete breakdown in its ability to negotiate differences. Popular opinion tells us that the problem is polarization, and that the solution is to end the hyper-partisanship which is so prevalent in politics today. Yet, despite attempts to address the problem with structural changes such as reforms in redistricting, primary systems, and campaign financing, we find the solution is not getting closer.

A group of political scientists offer another solution. Partisanship, they tell us, is here to stay; yet there is a way to do an end-run around it. That playbook involves skillful negotiation and basic principles of communication, arts practiced by few in Washington today.

Last month, the American Political Science Association (APSA) released a report from its task force on Negotiating Agreement in Politics. The group included over 50 political science experts from major colleges and universities in the U.S., Canada, and Europe. They were tasked with finding ways to improve the negotiation process and enhance positive results in the political arena.

The APSA report spans a wide range of topics covering the causes of polarization, the consequences for deal-making, and how Congress can more effectively negotiate lasting solutions to the problems our nation faces. Its conclusions are an impressive blend of theoretical and practical solutions to help move the nation away from high-level dysfunction.

The task force points out that "political negotiation is often essential to democratic rule, yet negotiating is difficult to do." Polarization is too firmly ingrained to make progress. The obstacles include a strong separation of powers and intense competition between two equally matched political parties. These and other barriers allow for little opportunity for cooperation, and even less incentive for the sides to work together toward common goals.

The task force uses the term "negotiation myopia" to describe the inability of opposing parties to see the joint benefits of solutions reached through compromise and consensus building:

"Given this dreary outlook, it is entirely appropriate that we turn our intellectual energies to exploring ways to negotiate and govern despite growing partisan differences.”

In an interview with the the two co-chairs of the APSA task force additional perspective was given regarding several areas of their findings and conclusions. Cathie Jo Martin, professor of Political Science at Boston University, also served as co-chair of a previous APSA task force, called Getting to Yes in Politics. Jane Mansbridge, professor of Political Leadership and Democratic Values at Harvard’s John F. Kennedy School of Government, is also the author of Beyond Adversary Democracy.

Professor Martin explained how repeated interactions, combined with reliance on nonpartisan expertise and consequences to inaction, are critical in successful negotiating. She said that the current situation in Congress is complicated by extreme competition and focus on short-term interests. Martin spoke of the benefits of long term planning on policy issues with a focus on broader gains and delayed gratification: ""

Other countries, particularly the Scandinavian nations, she claims, are much better at long term outlook and planning than what is typical in the U.S. which has "fewer rules and institutions that foster deliberative negotiation."

However, she added, legislators in the U.S. are sometimes able to "recognize a mandate for action" and go through a time-consuming sharing and information gathering process to work through a difficult policy problem. In these situations, both sides often meet in "secret bipartisan gangs" which have historically been very important to congressional deal-making.

"Yet, despite the institutional odds against it, political negotiation sometimes works in the U.S.," the authors claim.

Professor Mansbridge expanded on the barriers to negotiation, particularly on separation of powers which she says are stronger in the U.S. than most other democracies, and extreme polarization which is at it highest level in the last 100 years.  These two factors create a “recipe for ineffective government.”

To overcome polarization and negotiation myopia, the APSA task force suggests that parties must engage in sharing of information and joint problem-solving to create and discover new solutions "for the good of citizens of both parties and for the country."

“The framers made it necessary to negotiate,” Mansbridge adds.

The basis of effective negotiation is an understanding of one's own self-interest along with that of the other side, and how both sides benefit when all interests are satisfied. Yet, our national leaders lose sight of this too often.

Political negotiation is not a one-time event; it must be part of a larger, long-term effort to build consensus. Past winners and losers return to the negotiating table with the fresh memory of a previous result. The winners seek to reinforce the taste of victory; the losers are determined not to repeat a difficult loss. Rather than being conducive to forming real, permanent solutions, this has led to an environment where no one wins, dysfunction prevails, and gridlock is the outcome.

The alternative, where both sides leave the table with a positive perspective on the result, fosters, and rewards continued negotiation and consensus building. A win-win mentality leads to not only a positive outcome to an individual effort, but an ongoing relationship which promotes future negotiations. Failure to reach agreement leads to more failure, while APSA offers that success "generate the trust among opponents necessary for the next agreement." In Congress, that next negotiation has often already begun.

Negotiation myopia can be overcome by deliberative negotiation, a method which produces agreements which “encompass the interests and values of broad majorities as well as the kind most compatible with democratic ideals." Deliberative negotiation is characterized by "mutual justification, respect, and reciprocal fairness."

The more common fixed-pie, zero-sum approach to negotiating, where gain is only realized through a corresponding loss by the other side, can be transcended to some degree. It is possible to "even occasionally devise a solution that is good for all with no loss to any," according to the task force. This is where consensus building and cooperation must be viewed from the perspective of mutual benefit.

"We Americans preach cooperation and sharing to our children, but in the political sphere, we have forgotten the lessons of our childhood," the task force observed.

The task force recommends four “rules of engagement” which are effective to overcome myopia and other barriers to negotiation. In some countries, systems that support these tenets are incorporated into their political structures. But, elements of these practices can be adopted even where they are not in place institutionally.

The rules of engagement for successful negotiation:

Optimal negotiation includes open sharing of information and reliance on trusted, nonpartisan experts and task forces who can study policy issues long before congressional debate even begins. "Instead," the task force reports, "political parties have developed dueling facts and contested narratives about policy problems, and they are quick to challenge one another's motives and data." According to Professor Martin, groups such as the Government Accounting Office and Congressional Budget Office should be better utilized in congressional negotiations. Madeleine Albright once said: "...in order to be a really good negotiator, you have to try to figure out what the other person on the other side of the table has in mind." This level of understanding can best be achieved where opposing parties get to know one another personally and develop long-term relationships. Longer incumbencies help foster this. The result is increased respect and trust, along with better awareness of what each side is willing to trade to achieve larger goals. These are all key elements of deliberative negotiation. Deadlines to reach agreement can be helpful, especially those which, if missed, will result in a penalty that all parties wish to avoid. Congressional negotiations over the federal budget and debt ceiling limits are recent examples where these penalties have been attempted. However, even threats of unpopular outcomes like government shutdowns and sequestration have not always been enough, on their own, to lead to agreement. Yet, in combination with other mechanisms, deadlines and penalties of inaction remain important incentives for success. Public negotiation can be counterproductive. When in the public view, negotiation is often tainted by rhetoric and demagoguery; compromise and sacrifice may be seen as potential signs of weakness by voters. As an alternative, the task force suggests greater reliance on private negotiations which encourage “pondering rather than posturing."In a democracy, however, closed door interaction can be at odds with transparency, accountability, and trust. While there are "serious democratic hazards" to be considered, the task force addresses these with specific ways of making reduced transparency acceptable to the public. 

Overall, Professor Martin holds some hope about the outlook, primarily due to a turn in public opinion against legislators who actively work against progress. She sums this up:

"When you see the Chamber of Commerce threatening to do primary challenges against tea party legislators, you know that folks favoring stalemate have overreached."

Professor Mansbridge sees great promise in work being done by groups which encourage repeated interactions in Congress, such as the No Labels Problem Solvers coalition. This, she claims, is a “key ingredient to ongoing successful negotiation.” She does not anticipate great breakthroughs in the short-term, however.



Is the "do-nothing" Congress here to stay or is there hope for change? Time will tell whether Congress can learn the art of deliberative negotiation. While not all issues can be resolved through negotiation, small steps can bring us a long way. Other alternatives do not offer a promising outcome.

Cool Hand Luke cannot be broken; both he and his prison guards refuse to yield. Neither sees the mutual benefit of learning one another's respective needs, of seeking compromise.

"What we got here is a failure to communicate..." Luke repeats the Captain's words, just before he is shot near the end of the movie. All attempts to negotiate have collapsed, with the outcome no one wanted.

In Congress, it's time to write an alternate ending.

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About the Author

Glenn Davis

My hope is that bipartisan and nonpartisan solutions will become the new ideal in American politics. I founded The C-Plan in 2013, a movement to help overcome partisan divisiveness: "C" for Civility, Cooperation, Collaboration, Compassion, Consensus & Compromise. Join me at http://www.TheCPlan.org/join. When not writing or advocating the cause, I am a quantitative researcher and own a survey management firm, DataStar, Inc., in Waltham, MA.