by Rob Oldham
President-elect Donald Trump prides himself on being a deal-maker and has said that he hopes to negotiate deals with Congress on trade, immigration, and gun regulations, all of which were non-starters with President Obama and the Republican-controlled Congress. If we are to take the new president seriously, it is worth looking at how negotiations in Congress have played out recently and whether changing the way we negotiate could break partisan gridlock.
The most notable negotiation failure during the Obama years was the president’s inability to reach a grand bargain with Republicans on tax increases and reforms to entitlement spending. In his book The Price of Politics, Bob Woodward recounts the 2011 negotiations between President Obama and House Speaker John Boehner. While it seems that Obama and Boehner both genuinely wanted to reach a significant, long-term deal, they ultimately did not because of dissent within Boehner’s Republican Conference and the fact that both sides used the negotiations as partisan messaging opportunities.
Scholars have zeroed in on this episode, seeing it as a poster-child for why negotiations on policy deals often fail. Boehner was unable to hide the fact that he was considering tax increases from the House Republicans, triggering an uproar from conservatives elected in the 2010 Tea Party wave. The media was involved at every step of the way, as both Obama and Boehner updated them through press conferences and leaked details of their discussions to undermine the other side. Some scholars think the openness of the process was the problem. They contend that transparent lawmaking—an idea that few Americans would disagree with—might be causing negotiation breakdowns, especially in an era of political polarization, where there are strong incentives to use negotiations to attack the other party.
Political scientist Jane Mansbridge agrees that too much transparency has made it more difficult for Congress to make deals. Although she acknowledges that many different institutional factors and social trends have contributed to gridlock, Mansbridge thinks that negotiation myopia, a collection of human errors in consensus-forming, has prevented Congress from striking deals that address controversial policy issues. She challenges several widely-held beliefs— more transparency in government is a good thing, legislative turnover is healthy, and side payments to legislators equals corruption—and shows how these can inhibit deal-making.
According to her, transparency destroys privacy and, without it, negotiators are less free to explore a full array of options in deal-making. She says that the public deserves transparency in rationale, but not necessarily transparency in process. Mansfield also stresses the importance of repeated interactions among legislators to foster trust in negotiations. If legislators are constantly being replaced through elections or retirements, then there is less opportunity for relationship-building (something President Trump might want to note before pushing ahead with a congressional term limits proposal). Finally, she questions whether side payments like earmarks or other “logrolling” tactics are really such a bad thing. Although there is not full agreement on whether earmarks help Congress pass more legislation, Mansfield makes the point that they can provide an extra incentive in the negotiating room.
Unfortunately for Congress, its approval rating is abysmal, so there is probably not much of an appetite from constituents for a less transparent negotiating process, especially if “career politicians” and “wasteful pork” are thrown into the mix. To ease the suspicion, Mansfield suggests that Congress take steps to improve public trust. If citizens felt that their members were representing “the people” and not special interests, then they might be more likely to stomach secret negotiations. The trust gap could be addressed through campaign finance reform or by passing more lobbying regulations.
Mansfield is not alone in criticizing transparency. Sarah Binder and Frances Lee argue that curbing transparency might allow legislators to forge “integrative solutions.” Congress has full discretion in mixing policy areas together when writing legislation, so it possible to make non-zero-sum deals where both parties benefit, just on different policy issues. An integrative solution could be legislation that provides tax credits for businesses (a Republican priority) and also funds a public rail system (a Democratic priority). Combining partisan priorities that are not necessarily in competition into a single bill makes the proposal more likely to achieve majority support on the floor. According to Binder and Lee, integrative solutions are best explored in secret negotiations rather than ones exposed to the public and the media. This is because secret negotiations allow lawmakers to entertain policies that may be unpopular with their fellow partisans. If members do not have to worry about the backlash from supporting a single unpopular policy, they are better able to forge grand bargains that could encompass multiple policy areas and be generally palatable when presented in their final form.
Despite these compelling arguments in favoring of rolling back transparency, there is some concern that Congress is not transparent enough as is and that further steps in that direction would be harmful to democracy. In his book Legislating in the Dark, James Curry examines the House of Representatives and finds that there are already significant informational inequities between rank-and-file members and the party leaders and committee chairs who would be negotiating secret deals.
Curry says that leaders currently draft bills in secret, change their contents before consideration, and exploit the complexity of language to put themselves at the center of the legislative process. Members rarely have a full understanding of what is being passed, as their main source of information is party leadership. With the time constraints put on members and the resource advantage in staffing enjoyed by leaders, it is probably true that, even without secret negotiations, much of the legislation that passes is disproportionately influenced by a handful of influential actors. Less transparency might further cut out rank-and-file members from involvement in policy-making.
Curry also says that the opposite extreme (full information and involvement on every bill by all members) would be a disaster, so it is important to note that his focus on greater deliberation is not necessarily in conflict with Mansfield, Lee, and Binder’s call for secret negotiation. Curry would probably agree with them on the importance of “transparency in rationale,” so that rank-and-file members understand what came out of the secret negotiations even if they were not involved. However, it is unclear if a negotiation structure where more power is concentrated in the hands of leadership, but members (and their constituents) also have better knowledge of legislation would be practically achievable.
Gary Bass, Danielle Brian, and Norman Eisen also present a strong argument against rolling back transparency. They point out several flaws in the arguments being advanced by the anti-transparency camp, mainly that there is little evidence that rolling back transparency would facilitate deal-making. They point to the secret meetings of the 2011 Super Committee that was designed to reach a deal on deficit reduction. It failed to produce results because of partisan disagreement. Like Curry, they claim that secret meetings happen all the time and that different views on policy, not fears of media leaks or messaging exploitation, are why deals are rarely made. They also say that the anti-transparency camp does not have an actual plan for facilitating negotiations. If, for example, reformers decided to make committee votes secret or take other steps to obscure transparency, it invites special interest groups to influence outcomes more than they do already. This is probably not the fix that most reformers envision.
Most notably, they criticize the emphasis on reaching bipartisan agreements, arguing that reformers conflate “bipartisan deals” with “good deals.” Regardless of which parties are in the negotiating room, less transparency will lead to more influence by special interests and less engagement from the public. Historically, transparency has made voters trust government more. After cameras were installed in the House in 1979, Congress’s approval ratings consistently improved for the next 10 years. Bass, Brian, and Eisen agree that gridlock is a major problem, but are doubtful that too much transparency is the root cause. They say that institutional or electoral reforms would do far more to combat legislative gridlock, without rolling back transparency that is critical to fostering trust in a democracy.
Binder responded to Bass, Brian, and Eisen, saying that the two sides were largely talking past one another. She does not believe that curbing transparency would be sufficient for ending gridlock. However, she does that think transparent negotiations create an extra incentive for legislators to engage in partisan messaging rather than deal-making, often causing the negotiations to fail. She points to the 2013 Senate immigration reform bill negotiated by the Gang of Eight, which had four Republicans and four Democrats. In this case, Democrats could have made Republicans look hapless and divided by telling the media that they were considering a pathway to citizenship for undocumented immigrants. By not doing so, the negotiators reached a consensus and passed the bill through the Senate.
Binder’s final point is critical to understanding the limits of curbing transparent negotiations. When the immigration bill went to the House, there were also bipartisan meetings on how to bring it to the floor. The bill never moved though, because most House Republicans preferred the status quo. This shows that while secret negotiations may have a limited impact in certain cases, the larger forces of polarization are likely to prevail on high-profile, divisive issues.
When the new Congress convenes in 2017, the Republicans will only have a majority in the Senate by a one or two-member margin. If the Democrats want to take back the Senate in 2018 or 2020, most of them probably won’t play ball with Republicans on the controversial issues that President Trump wants to address. Despite emphasizing his negotiating and deal-making abilities during the campaign, it is likely that President Trump will first have to contend with the institutional constraints and electoral incentives that have contributed to legislative gridlock thus far. Only then will negotiations, secret or transparent, be able to succeed.