Negotiating Past an Impasse Over “The Wall”
As I watched the negotiations stall over what became the longest government shutdown in American history, I wrote a short article on January 10 suggesting a way out—that would have ended this costly and painful impasse. I published it in The Hill, a Washington DC publication avidly read by members of Congress, their staffs, the administration, and assorted other political and policy types. My suggestion drew on two broader negotiation:
Perhaps paradoxically, intractable, single-issue, win-lose negotiations can sometimes be resolved by “adding issues,” thus creating a package of greater value to each side than continued stalemate. This negotiation advice aligns with a sage observation by Dwight Eisenhower: “if a problem cannot be solved, enlarge it.” For business disputes where negotiation fails, a lawsuit is often brought on what appear to be the strongest legal grounds. Tons of time and money can be spent defending and attacking on those narrow grounds. Yet if you can get senior execs involved directly—so it is not just a lawyer to lawyer negotiation—they can sometimes craft a much broader business deal that embeds a solution to the legal issues, but as part of a bigger, mutually beneficial package.
As popularized by my friend William Ury, a key to resolving tough deals can be to craft an outcome that lets each side give a (genuine but differently spun) “victory speech” to its constituents. In advisory work, I have used this “victory speech” concept in any number of nasty business and public disputes.
Although my first article got a lot of attention, the impasse persisted for 35 days. Here we are again with a February 15 deadline for government negotiators to avoid a shutdown, a presidential “declaration of emergency,” or who knows. My ideas on getting past another possible impasse over “The Wall” have evolved and I just published a second piece in The Hill. The editor shortened it a fair bit and chose more of a partisan title than I had intended—“Dems can negotiate and avoid another shutdown by reframing and adding issues”—but I hope you find the new published article or the fuller version (below) worthwhile. Feel free to pass it on to others who may find it interesting and/or useful.
Negotiating Past an Impasse Over “The Wall”
(fuller version of The Hill’s adaptation on 2/8/19)
With House support on December 20, the Senate delivered a spending bill—minus Wall funding—to President Trump, who refused to sign, triggering the shutdown.
Thirty five disruptive days later, after an $11 billion cost to the economy, Trump signed a spending bill—minus Wall funding—similar to what he vetoed. This trauma could simply have been avoided by a December “yes”.
Back to square one? Hardly. Democrats now face a president who, with turmoil up and polls down, capitulated in round one. With a chastened Trump, the odds of avoiding shutdown 2.0 should rise. But will they?
A replay looms, with a vengeful Trump now threatening a February 15 shutdown if no Wall. Now, as then, positions starkly diverge. Pelosi: "We're not doing a wall." Trump: the government could be closed for “months or even years” without Wall funding. Or he could declare a national emergency despite Mitch McConnell’s reportedly warning him against it given Republican opposition in the Senate (not to mention precipitating a constitutional crisis). Net-net, the Wall could again become a dealbreaker.
Given bipartisan support for border security and Trump’s softening characterization of the Wall, including milder-seeming demands in his State of the Union, normal hard bargaining should produce a sensible agreement. Example: “The Wall” would transform into some kind of physical barrier erected only in cost-effective places, perhaps triggered when 95% of separated families were reunited. A compromise on money would include humanitarian provisions, more border agents and immigration judges, plus other border-securing measures (e.g. drones, sensors).
But times are not normal. Ongoing talks still risk becoming mired in a win-lose, single issue negotiation over the Wall. Trump could again play to his base, blaming soft-on-immigration Democrats who, empowered by their earlier win, could dig in, trapping the parties in a downward spiral toward shutdown 2.0.
Yet in a bit of wisdom, Dwight Eisenhower suggested a counterintuitive out: “if a problem cannot be solved, enlarge it.” How? By transforming the “Wall v. No Wall” single-issue battle into a multi-issue deal, equipping each side with a “victory speech” that would persuasively justify to its constituency why it got more than it gave. (Here, many negotiation experts would side with Ike.)
Suppose the parties hit the wall (sorry!) and can’t negotiate a sensible compromise but one or more really want to avoid another shutdown or emergency declaration. Eisenhowser’s possible advice?
Adding DACA to the mix has been a natural since Trump hugely values getting his Wall while Democrats hugely value a permanent, legislated path to citizenship for the Dreamers – those brought here before age 16 with clean records, in school, working, or in the military.
Although rejected before, a “Wall for Dreamers” package could form the kernel of a deal. Supported by Trump as part of an earlier proposal, he also offered temporary DACA flexibility after his January 8 primetime address, but added poison pill immigration provisions. How could this package be enhanced to give each side enough value to declare victory?
Modest reframing could render DACA concessions more palatable, perhaps rebranding it with slight modifications as “LLPTC,” “Limited Legal Path to Citizenship?” (Remember how small changes to the “failed” NAFTA gave way to the “amazing” but similar USMCA?) While a win for the Democrats, the blow would be softened for Trump since 80% of the public supports it. And, as he tweeted “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?”
To enhance a DACA/LLPTC-Wall trade, Eisenhower might counsel adding further issues that both sides want but that neither has been able to get, best proposed by a bipartisan Congressional group such as the “Problem Solvers Caucus” so none of the negotiators appears weak.
Example: give the federal government, with vast buying power, the right to negotiate prescription drug prices with pharma companies, an option denied to Washington since George W. Bush’s prescription drug plan. Save money, strengthen Medicare, and gratify the 92% of the public who prioritize lower drug prices. Much greater negotiating complexity, but added value for the package (except to the pharma lobby). Some drug savings might even be earmarked for border security.
But what do pharmaceutical prices have to do with the Wall? No substantive link as with DACA, but these shutdown negotiations actually concern the wholefederal budget, not just Trump’s focus on the Wall. If a largely consensus policy issue—the right to negotiate with Big Pharma—linked to that budget adds value for all and lowers the chance of costly impasse, it would be a good idea.
Another consensus sweetener: more infrastructure spending by the federal government, popular among 84% of the public. This would not have to include Trump’s full $1.5 trillion infrastructurepackage, only some of its most salient, widely supported provisions.
Victory speeches for all! Trump, vindicated as the Great Dealmaker: “Huge! I got my beautiful Wall over bitter Democratic opposition. I won improved infrastructure, cheaper prescription drugs, and kept the government open. All this for a ‘legal path to citizenship’ for a small, carefully vetted group.
The Democrats: “We’ve shown we can govern. We avoided a shutdown, took care of the Dreamers, guaranteed refugee family unification, improved national infrastructure, and got cheaper prescription drugs in a blow to big pharma. All for a limited version of an illusory Wall that, even if built, won’t detain or mistreat anyone.”
Illusory? The Democrats could note that, since all but about 100 miles of the 1,954 US-Mexico border is in private hands, years of Wall-focused eminent domain lawsuits would ensue, which conservatives hate. Even the border fence Congress approved in 2006 has been tied up in litigation, especially by ranchers who detest government encroachment on their land.
This approach hardly guarantees success. Seeking revenge for prior humiliation or preferring to go to the mat for his base, damn the consequences, Trump may stonewall or declare a national emergency. Alternatively, emboldened by their victory in shutdown talks 1.0, the Democrats may play to win this new game of chicken, unable to stomach any Trump win, or they may overplay their hand, killing any deal by demanding that it also include a $15 minimum wage, Medicare for All, and so on.
But with smart play, the Democrats can avoid blame for shutdown 2.0 or a constitutional crisis from an emergency declaration. They would have very publicly agreed to a sensible version of the Wall, gotten DACA/LLTPC, reunited families, cheaper drugs, and infrastructure. They will have shown willingness to compromise, positioning themselves for 2020 as the “party of governing” versus the “party of no.”
