The Lost Art of Negotiation

David Super

      Accounts of the Build Back Better environmental and human services legislation have swung between extreme interpretations, neither even close to true.  During the Spring, the Summer, and much of the Fall, we were told that “the Democrats” could do pretty much whatever they pleased and pass it through the “budget reconciliation” process with only their bare majority of votes.  That was false.

     Then, when Senator Manchin declared that he did not support Build Back Better, we were told that the legislation was dead.  Now that it has become apparent that interest remains in the legislation, we see people writing that it may be able to move, but only on whatever terms Senator Manchin likes.  Thus, every negative statement made by, or attributed to, him concerning some provision in the legislation is treated as absolutely dooming that provision.  Indeed, when Senator Manchin said he would like to pass pieces of Build Back Better through the regular order – outside of reconciliation and subject to the filibuster – some credulous scribes insisted that that was what was going to happen.  None of this is correct, either. 

     What all these prognostications, which seem quite sincere, have in common is a remarkable failure to understand the process of negotiation.  When two entities need each other’s agreement to pursue some common agenda, and neither has power to dictate to the other, the ordinary process for reaching agreement is negotiation.  The optimism of Summer ignored the need to negotiate, blithely assuming that somehow Senators Manchin and Sinema would meekly vote for any bill the leadership put under their noses regardless of their personal preferences (and then would docilely vote against any Republican amendments to strike the provisions they opposed).  The pessimism of Winter similarly ignores the need to negotiate, assuming that everything Senator Manchin says is diktat, the final word on the legislation.  Progressives’ unfounded vilification of Senator Manchin has deceived them into seeing him as an amalgam of Pontius Pilot, Nero, and Jabba the Hutt, callously and even flippantly turning thumbs-up or thumbs-down and having everyone slavishly fall into line. 

     In fact, what Sen. Manchin has sought all along has been a negotiation.  And he is actually quite a skilled negotiator.  Over the summer, his conversations with other senators were somewhat informal.  Once House progressives began to hold the bipartisan infrastructure bill hostage, he began to take a more adversarial position.  He also insisted on negotiating with President Biden in the belief that any concessions he won in such bargaining would stick. 

     Having hammered out a deal with the President that included a great many progressive priorities but not family leave or immigration reform, he found that the White House was unprepared to stand by that deal.  Indeed, he claimed that White House staff was covertly leading a crude pressure campaign seeking to make him relent on the very matters it had conceded to him.  At one point, too, Senate Majority Leader Schumer was reported to be planning to include in the legislation he brought to the floor provisions he had agreed to drop, forcing Senator Manchin to vote to remove them.  If true, this would be complete bad faith, but even if these reports were not correct, the failure of the White House and Democratic leadership to douse these pressure campaigns and take responsibility for their concessions made them unreliable negotiating partners. 

     Under these circumstances, Senator Manchin concluded that the only way to stop the unpleasant pressure campaign was to demonstrate his leverage in the negotiations by walking away from the table.  That is an aggressive negotiating tactic, but hardly an unusual one.  Once the reality of his leverage sunk in, he started intermittently complaining about provisions near-and-dear to the hearts of progressives, buttressing his position in eventual negotiations.  He knows he will not win on every one of his objections – he may not even want to do so.  But after having been played for a fool in the Fall negotiations, he is doing everything he can to maximize his leverage and to ensure that the President and Senate leadership will appreciate the need to stand by whatever deal they make. 

     We almost certainly will get a Build Back Better bill.  It will not go through the regular order:  not a single Republican, much less ten of them, has given any indication they would vote to break a filibuster even in exchange for huge policy concessions.   

     And the new Build Back Better will not come quickly.  It now will have to wait until the Senate finishes with annual appropriations for the fiscal year now almost half-completed as well as for the President’s Supreme Court nominee and possibly other urgent legislation.  That likely carries us into April.  The negotiations will be conducted in the utmost secrecy, in marked contrast to those over the Summer and Fall.  And when a deal is reached, that will be the final legislation – not a starting point for further pressure campaigns.  It will not contain any major provisions not included in last Fall’s deal, and it likely will scale back significantly or omit some of those that were. 

     One positive effect of the rampant extreme pessimism of the past few months is that whatever version of Build Back Better finally emerges should easily surpass now-dismal expectations.  That should allow it to pass relatively easily.  But progressives would do much better, on this legislation and in the future, if they recognized the frequent need for negotiations – and the high cost likely to result from vilifying one’s counter-party.   

     @DavidASuper1