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How to Win

by Joe Markowitz
July 2012

  • Mediation's Place by Joe Markowitz

    Joe Markowitz

    A piece in the New York Times last week called How Liberals Win, reminds us of the deals that FDR and LBJ made with corporate power in order to enact their signature reforms. What President Obama did to pass health care reform followed that tradition. But when the Obama administration made a deal with pharmaceutical companies to obtain their support for health insurance reform, many of his supporters viewed that agreement as a sell-out. In hindsight, however, it appears that that agreement may have been crucial to obtaining passage of the Affordable Care Act. Remember that Clinton failed at gaining health insurance reform, because his proposals fell victim to a fierce and unrelenting advertising campaign by the health insurance industry. Clinton lost that battle because he had no corporate allies. Obama did not make that mistake, and used the support of the pharmaceutical industry to neutralize a similar campaign against the legislation by health insurance companies. That's one reason he was able to get major reform passed that Democrats had tried and failed to accomplish for a hundred years.

    Other examples of what it really takes to pass major legislation appear in Robert Caro's latest installment of his Lyndon Johnson biography. Caro details exactly how Johnson was able to get two signature Kennedy promises enacted after Kennedy's assassination--the income tax cuts, and the Civil Rights Act. Both those bills were stalled in Congress in the fall of 1963, and nobody in the Kennedy administration seemed to have a clue about how to move them forward. How did Johnson do it? It was not just by browbeating and arm-twisting his opponents, although he did do some of that. With the tax cut bill, he saw that the only way forward was to placate Senator Harry Byrd, Chair of the the Senate Finance Committee, by making severe budget cuts that year, even though these cuts were anathema to liberals. The only way to get cloture on the Civil Rights bill was to obtain the votes of a sufficient number of Republicans in both the House and Senate, to make up for the no votes of nearly all Southern Democrats. Johnson did that by appealing to Republicans' sense of history, continually reminding Republicans that theirs was the party of Lincoln.

    President Obama's critics on the left have attacked him for his willingness to make deals with the Republicans, especially the budget compromise that prevented the government from going into default last year. If they think there was ever a president who got what he wanted without making deals, however, they will have to look pretty hard to find examples. Both Roosevelt and Johnson, who left the largest legacies of reform in modern times, were constantly making deals with corporate power, and with political adversaries. even thought their parties held large majorities in Congress,

    The administration's opponents on the right share this same mistaken idea--the idea that political success can only be achieved through uncompromising struggle--with the most partisan activists on the left. The right seems to believe that their best strategy is unrelenting opposition to everything the president proposes. That strategy may have worked to expand the ranks of the opposition in the 2010 election, but since that time Congressional Republicans' "take no prisoners" approach has made Congress the most unpopular institution of government by far. The public is disgusted that Congress now has difficulty passing even legislation that has broad public support, such as the payroll tax cut or highway construction funding. Congressmen seem to have forgotten that passing legislation usually requires finding common ground with at least some of your political adversaries. The president's adversaries should remember that their hero Ronald Reagan, who left a legacy of wide-reaching changes in a conservative direction, was also a notorious practitioner of compromise, which is how he got such major changes as tax reform, domestic spending cuts, and immigration reform, through the Congress.

    Parties involved in private disputes don't always approach them with the same ideological fervor with which people view political contests, but they do tend to want to defeat the other side, and prevail in their positions. More often, winning requires finding a way to deal with an adversary, if parties are interested in ending the struggle and accomplishing at least some of their aims.

    Biography


    Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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