Legal Analysis and Commentary from Justia
Posted In Politics

Republicans Need to Understand That It Is Possible to Negotiate Without Taking Hostages

NegotiationsIn my most recent column here on Verdict, I asked whether there is anything that the most extreme conservatives who are currently running the Republican Party could do that would finally convince the slightly-less extreme conservatives to leave the party. There is, after all, plenty of room for genuine conservative views in the Democratic Party, notwithstanding media tropes that continue to paint Barack Obama’s center-right agenda as “liberal.”

There are those who believe that the Republicans’ ultra-extremism will be self-correcting, with Republicans’ losses of Senate seats and governorships providing an incentive for party leaders to rein in the crazies who have nominated unelectable candidates. The problem is that, every time we hear about the “adults” retaking control of the conversation in the Republican Party, we discover that those supposed mainstream conservatives are often as shrill and inane as are the people they decry for destroying their party.

A good example is Bobby Jindal, the Republican governor of Louisiana. Jindal, who is still trying to recover from his mockable response to a 2009 speech by President Obama, garnered approving commentary after the 2012 election by saying that his party could only win future elections if the Republicans decide to stop being “the stupid party.” Ever since making that sensible suggestion, however, he has apparently decided to prove that he can out-stupid everyone.

The most recent case in point is Jindal’s response to a comment by President Obama in a speech last week. On a visit to Louisiana, the President called on that state to accept the Medicaid expansion that is part of the Affordable Care Act (ACA), which Jindal has refused to do.

Jindal’s response? “We will not allow President Obama to bully Louisiana into accepting an expansion of Obamacare.” As the late-night comedy shows pointed out, it is hardly “bullying” when the federal government agrees to pay 100% of a plan for three years, and 90% forever after. But even if there were no federal money involved, how does this comment from the President amount to bullying: “Even if you don’t support the overall plan, let’s at least go ahead and make sure that the folks who don’t have health insurance right now and can get it through an expanded Medicaid, let’s make sure we do that”?

The supposedly reasonable Republicans are so blinded by their hatred of President Obama that they describe even an utterly non-combative suggestion as some kind of tongue-lashing. And it is especially notable that Jindal’s absurd comment was barely even noticed, because of how many even crazier comments come out of the mouths of Jindal and other high-profile Republicans nearly every day.

Does Anyone Really Want to Negotiate? Should They?

Given that the Republicans’ big complaint during the October government shutdown was that President Obama and the Democrats would not even negotiate with them, it is certainly worth noting that they scream like five-year-olds when the president simply states a policy position with which they disagree. This is not the reaction of people who are interested in making a deal, or even in simply distancing themselves from their own party’s extremists.

Nonetheless, it is possible that even the people who do not make public embarrassments of themselves are not truly interested in reaching the compromises that Beltway insiders so dearly desire. In a recent commentary, a New York Times writer reported that both Democrats and Republicans have privately admitted the “dirty secret” that neither party actually wants to do what it claims to want to do, in order to reach a compromise on the federal budget.

The party’s current baseline negotiating positions, at least as understood inside the Beltway, are that Democrats insist on tax increases on the wealthy (especially through the elimination of tax deductions that are mostly used by higher-income people), while Republicans insist on major cuts in Medicare and Social Security benefits. Neither party, under this view, is willing even to give an inch to the other side, making progress toward a compromise impossible.

According to the Times’s reporter, however, Republicans would never actually be willing to vote to cut Medicare and Social Security, while Democrats equally recoil at the idea that they might one day cast votes to increase net tax revenues. Republicans evidently do not want to alienate older voters, while Democrats do not want to alienate their wealthier donors.

It is worth remembering, as I have argued many, many times (for example, in this Verdict column), that the case for a Grand Compromise to rein in “runaway deficits” is hopelessly weak. There simply is no reason to allow panic about the long-term (or medium-term, or short-term) budget situation to lead us to take self-defeating actions today. Even so, belief in budgetary orthodoxy is the basis of the Obama Administration’s deep commitment to long-term budget cuts.

It is also important to bear in mind that the storyline in which “Democrats are for tax increases, and Republicans are for spending cuts” is extremely misleading. Republicans are opposed to any tax increases, whereas Democrats have regularly agreed to proposals that are overwhelmingly weighted toward spending cuts.

As a matter of economics, therefore, the country is actually better off because the two parties cannot agree on just how much austerity they are willing to impose.

Nonetheless, the argument in the Times article is not that either side is rethinking the wisdom of their views regarding taxes or spending. It is that both Republicans and Democrats are guilty of political cowardice, unwilling to do what they believe in their hearts to be right, for fear that voters would punish them for doing so.

Expanding the Range of Possible Policy Tradeoffs, Without Taking Hostages

While it is hardly news that politicians sometimes do not have the courage of their convictions, it is still interesting to ask whether there are any circumstances under which Republicans would be willing to compromise, in order to achieve some of their goals.

I point the finger at Republicans specifically, because their approach in the last two years has amounted to trying to get something for nothing. The reason that they have rightly been accused of “hostage-taking” is that they have used the debt-ceiling statute as a bludgeon to try to force Democrats to give ground. If Republicans do not get their way, they threaten to allow the federal government to default on its obligations.

Although Republicans screamed about the Democrats’ purported unwillingness to compromise, President Obama was correct to say that the debt ceiling is a nonpartisan issue. The government has made commitments, and the debt ceiling must not be used as an excuse to refuse to make good on those commitments.

The Republicans seem afraid actually to negotiate. That is, they have not found any area of policy in which they are willing to say, “If you give us this, we’ll give you that.” On the federal budget, they are not willing to say, “If you give us $X of spending cuts, we’ll give you $Y of tax increases,” no matter how much bigger X is than Y.

But the federal budget is hardly the only area in which the parties could try to find an acceptable deal. What is required is for the parties to think about what they care about most, and then to decide how high a “price” they are willing to pay in order to get what they want.

This is hardly a novel or difficult concept. In their daily lives, people make easy and difficult choices all the time. I would like to spend a year in Europe, but in order to do so, I would have to give up my job. That means that the price is too high. I want to watch a good TV show, but in order to do so, I am not able to go out to dinner. That means that the price is acceptable. Cancer patients decide to undergo chemotherapy—introducing poisons into their bodies—because they view doing so as the less-bad path. Making such choices is how life works, and it used to be how politics worked.

Occasionally, Republicans have been able to understand this simple concept. For example, when a reporter pointed out to a Republican Congressman earlier this year that repealing the ACA would increase the deficit, the Congressman responded that a small increase in the deficit was a small price to pay for getting rid of “Obamacare.” Even though Republicans claim to hate deficits, this was a refreshing statement that not everything is equally bad.

Even if one disagrees with that particular Congressman’s views about the ACA, therefore, he is finally onto something. If the Republicans really and truly think that the ACA is the worst law ever (or, in the immortal words of one Republican congressman, “one of the most insidious laws ever created by man”), then they should be willing to pay a high price to make it stop. If, on the other hand, they think that tax increases are the worst thing in the world, then they can trade off other issues to reduce taxes. They have to decide what matters most to them, and negotiate appropriately.

As I noted recently on Dorf on Law, after all, the Republicans could have agreed to replace the ACA with a single-payer health care system for the United States. Republicans, of course, also hate single-payer systems, but if the ACA is truly an assault on the fundamental freedoms of America, why not make that hard call?

For that matter, there is nothing requiring Republicans to offer only health care-related alternatives to Democrats, in exchange for repealing the ACA. Democrats want to increase spending on education, infrastructure, and other investments to increase the nation’s future living standards. Some Democrats want to strengthen labor laws, protecting workers from discrimination, and allowing workers to certify unions more easily. Most Democrats think that the estate tax’s exemption of the first $10.5 million of a couple’s wealth is too high, and that the estate tax rate should be increased as well. Democrats want Republicans to stop filibustering the President’s judicial nominees. And so on.

Republicans think that all of those things are bad, but how bad are they, compared to the ACA? Republicans tried shutting down the government in an effort to defund the ACA, but they took a political beating for doing so. Maybe they can find some combination of concessions that would bring the art of compromise back to Washington.

There are, moreover, compromises that would count as “big deals” politically, but that are still smaller than the Grand Compromise that President Obama still seeks regarding the long-term budget and taxes, and that are smaller than my suggestions above to have Republicans trade the kitchen sink in order to repeal the ACA.

For example, the White House has proposed an increase in the minimum wage, and to adjust it in the future for inflation, which Republicans rejected out of hand. Republicans, on the other hand, have long complained that the capital-gains tax is not indexed to inflation. Why not make that a package deal, adjusting both the minimum wage and business taxes for inflation? For that matter, why not agree to index everything in the tax code to inflation, which would have effects that appeal to both sides (and other effects that are unappealing to both sides)?

To return to the broader point, the notable fact about this juncture in America’s history is that one of the two major parties has staked its future on the belief that everything the other side stands for is unacceptable, and that every unacceptable policy proposal is equally unacceptable. The result is that Republicans have seized on extreme strategies like the government shutdown and threats not to increase the debt ceiling, because they are willing to inflict pain on everyone rather than accept the political fact that they cannot get their way on everything.

People make difficult choices all the time. When they vote in elections, they often hold their noses while they vote for the less objectionable politician. The politicians who win those elections should be able to do the same, acting like adults and understanding that it is necessary to give something to get something. If Republicans really want to stop being “the stupid party,” they need to offer smart, difficult combinations of policy ideas that might achieve the goals that they care about most.

Neil H. BuchananNeil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at DorfonLaw.org, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
Posted In Politics
Print this page
  • Ted Harvatin

    When has Obama ever negotiated in good faith unless he has a gun to his head? Answer: Never. And then we get train wrecks like Obamacare

  • T39Driver

    Professor. I wonder if this is what you instill in your students. Is it always better to negotiate and compromise principles than to stand for what you believe? If you impart to your students that taking a position, extreme or not, that illustrates and demonstrates what you truly believe in somehow subordinate to an obligation or duty to negotiate for something less than should/could/would be achieved, then shame on you. My guess is that, however, you really don’t disdain the fight…except when the fight comes from those with whom you disagree. But this too is shameful.

 

Access this column at http://j.st/ZSKf