Negotiating the Shutdown: A Failure in Leadership and a Better Way Forward

January 23, 2015    Blog

By Bill Senft, Attorney Mediator, Baltimore Mediation

Everyday as mediators and teachers in negotiation and conflict resolution we witness and study the dynamics of difficult high-stakes negotiations. We see people stuck in impasse and know that, when they have the strength and humility to engage in mediator-facilitated dialogue and to listen deeply to the other(s), they can overcome any barriers. When facing impasse, true leaders choose to take this path of strength and humility. Unfortunately, President Obama, Speaker Boehner, Senator Reid, and the other 500+ legislators engaged in the current wrangling known as the “government shutdown” refuse to take this path, and this is a failure in leadership.

Let’s take a look, through a negotiation lens, at what is going on and what could be done differently. This will require leaving aside and basically ignoring all of the rhetoric being publicly exchanged between the two sides. For the most part, from a negotiation perspective, the rhetoric is irrelevant. Essentially, we have a struggle between two very different visions for government that result in very different policies on legislation and executive action. Both sides have lost sight of the fundamental teachings of relational negotiation practice and are negotiating entirely based upon their political power – a classic power struggle, a battle of wills – which has led to impasse.

The Democrats, holding both the Presidency and a slim majority in the Senate, are in a stronger negotiating position. They can block any legislation and control the agenda in the Senate. The President controls the Executive branch of the government and can effect policy greatly through regulations and Executive Orders. The Republicans are in a weaker position, but have the ability, if unified, to control the agenda in the House, which means no law can be passed without their consent.

In a power-based negotiation, the weaker party will look for any way to gain power. Often that is found in situations where the weaker party can thwart the will of the stronger party by refusing to consent or cooperate – think of Rev. Dr. Martin Luther King and civil disobedience. As legislators, the House Republicans have no power to affect policy except by refusing to consent and cooperate with regard to legislation. They also know that there are very few laws that must be passed and so, in order to gain power, they choose to refuse to cooperate and consent in the passage of those must-pass laws. The only laws that must be passed to keep the lights on in government and prevent great economic disruption are the Continuing Resolution to fund government and the Debt Ceiling Increase authorization. Given this reality, in this power struggle, if the Republicans wish to affect public policy, it should be no surprise that they have chosen these laws as their battleground. So that’s how we got here and it is unrealistic to expect Republicans easily to surrender this battleground with only the promise to “sit down and discuss everything after the CR and Debt Ceiling bills have been passed.”

So let’s look closer, again through a negotiation lens, at what is going on internally for each of the players. This view of the parties and their motivations looks not at the depth of their conviction in the rightness of their beliefs, but at practical realities and individual personal concerns. From this perspective, the Senate is not really in the center of this struggle. It is controlled by the Democrats and will cooperate with the President. The great majority of its members do not face reelection in 2014 and are secure and not concerned about re-election. Representatives in the House, however, are greatly concerned about re-election and are very much in the middle of this negotiation. Let’s look at their situation.

First, there is a large group of Republican members of the House, that are newly elected and who were elected specifically to resist and oppose the Democrats and President Obama – the “Tea Party” Republicans. By withholding their consent and cooperation they are doing exactly what they believe that their constituents want them to do. They believe that they risk losing re-election if they appear weak and fail to gain any ground on their agenda and they do not want to lose face with their die-hard supporters. They believe that if they compromise or surrender they will lose in the 2014 Republican congressional primary to a more strident opponent. They are being driven not only by the depth of their convictions but their real fear of losing re-election and becoming failed one-term members of Congress. In large degree, as of October 9, Day 9 of the Shutdown, they have very little room to do anything but be stridently against compromise. That will change as things become more drastic as I will discuss.

Next consider Speaker Boehner. He is in a quandary because he is trying to hold together the House Republicans and he must not lose the support of the Tea Party wing of the party. If he does he risks losing his position as Speaker. So he must gain some meaningful concession from the President and the Democrats. He will lose Tea Party support if he brings a “clean” CR or debt ceiling increase to the floor. He cannot be expected to do that – it’s political suicide. Wisely, I think, he is begging the President and Senator Reid to engage in private dialogue. He is trying desperately to keep from being viewed as too extreme. He quietly has stopped talking about “defunding Obamacare.” He is trying to hold the center by offering numerous piecemeal funding authorizations to minimize the pain of the shutdown – things like funding for monuments to be kept open, for NIH, etc. Not surprisingly, Senator Reid has shot down all of these offerings because he knows that any laws that minimize the pain of the shutdown will also decrease the pressure on the Republicans to surrender.

Which brings us to the “swing vote” in this controversy, those Republicans in the House that are from more moderate districts, those who are concerned and constantly calculating, “Am I more at risk of losing re-election if I surrender and end the shutdown or if I stand firm and demand a concession?” These members also do not want to break with their party and risk becoming party pariahs: powerless and excluded from any meaningful role as representatives. So right now, those members are remaining relatively quiet and letting Speaker Boehner take the lead. But as time passes and the effects of the shutdown become more painful, these members may become more vocal and form their own coalition. They would do well to do that and to demand mediator-facilitated private dialogue with all of the meaningful factions at the table. By doing that, as time passes, they will likely be viewed as “wise” and “problem solvers” instead of “weak compromisers.” The extremists will be marginalized in the debate at this point.

Now consider the posture of the President. He is not concerned about re-election, but he is greatly concerned about his legacy. He has a strong interest in being viewed positively by the American people and history. In addition, I would argue, he has a great interest in appearing a strong leader, particularly in the wake of the Syria chemical weapons flap, which resulted in his appearing indecisive and weak in leadership. Like any leader and person in a position of power, the President has a strong ego, has great pride, and does not want to lose face with his ardent supporters. He may fear that, in this era of highly polarized politics, any compromise will be seen as weak. Apparently, he also feels that even engaging in private dialogue with House Republicans will appear weak. His pride and ego is getting in the way of his being an effective leader.

So what does good leadership in the midst of intractable conflict look like? First, it steps away from fanning the flames and escalating the conflict with public statements through the media that are mere “shots across the bow” of the other side. These serve no purpose but to inflame the passions of both sides. Get behind closed doors in meetings with all of the meaningful voices represented: the President, Senator Reid, Speaker Boehner, House Tea Party Leaders, and House Moderate Republicans. Balance the number of voices on both sides by adding Democrat Senate and House leaders if that helps.

Second, bring in a well-respected professional mediator to facilitate dialogue and encourage the parties to deeply listen to each other. Why? Because we know from experience that when people are locked up in high-stakes conflict, they are unable to engage constructively with the other and they need a neutral third party mediator to give all those present both the space and the time to speak fully and be listened to deeply. That is how shifts occur and barriers are destroyed. We see it every day in our practice.

So you may be thinking – is it really “good leadership” to bring a neutral facilitator into the middle of a very high stakes negotiation? What if I lose control of the process? Will I appear weak if I put myself in the posture of a “participant” and not the “star” performer? The answer to these questions is that a good leaders do what is necessary to resolve problems in a relational way that does not compromise their moral integrity and does not sow the seeds of future vengeance by merely using power to trample and exploit the other. That takes real strength, not power, but strength – the strength of character to put aside ego and pride and make a great effort to listen deeply to the other. Giving the other full recognition as a person that you are fully connected to not only as an American, but as a human, and who, like you, is made in the image and likeness of God. It also takes the strength to put aside ego and pride, to have the humility to recognize that you, yourself, are deeply in the conflict and unable to effectively dialogue without help. Having the strength to bring in a neutral facilitator to ensure that the process of dialogue, under the hallmarks of good mediation practice: voluntariness and confidentiality, is one where all those present have both the space and the time to speak fully and be listened to deeply. It takes strength and humility. Let’s hope our leaders find those qualities soon.