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<xTITLE>Congress Awakes!</xTITLE>

Congress Awakes!

by Joshua Javits
June 2020

This is an opinion piece about the country's response to the pandemic.

Joshua Javits

The Nation is facing the triple challenges of the Coronavirus, economic collapse and racial tensions. Congress’ effectiveness in responding is the key to a successful outcome given Executive branch failure to act.

There is at least some hope that long years of partisan gridlock may soften as Congress continues to enact multiple programs to address the coronavirus outbreak. Galvanized by the pandemic, the legislative process appears to be functioning again after decades of logjam. Paid family leave, payments to workers and businesses and funds to address shortages of medical supplies and equipment are coming fast.

Additional legislation on contact-tracing and privacy as well as back-to-work legislation is moving along. New legislation on criminal justice including incarceration inequities and police conduct has been recently introduced with a good chance of success.

It is easy to see why an existential crisis of these proportions produces constructive, coordinated action. Confronted with the virus’ threat to life and looming economic paralysis, the motivation to act immediately is overwhelming. The speed is bracing when contrasted with the years of inaction on a myriad of major national problems—a crumbling infrastructure, climate change, a lack of health care, homelessness, chronic underemployment, income inequality and mass incarceration, to name a few.

Members of Congress have shown only spasmodic interest in working together for the common good to address these ongoing and very serious problems. The issues themselves are not ideological. Their solutions do not demand either a rightist or leftist approach. Conservatives’ embrace of the market and the left’s propensity toward government action may show a preference of approach. However, neither position renders a solution that accommodates legitimate interests.

Both insisting on government intervention and leaving resolution of these issues strictly to market forces are not viable options politically or practically. Government “carrots” and “sticks” are required to lead the private sector in directions that address these social and economic problems without undermining America’s strong free market.

Mostly it is the parties’ obsession with political victory at any cost that stymies the system. The parties constantly advertise ideological purity. This is a common refrain on the right, and it was recently demonstrated on the left as candidates spoke about health care during the Democratic presidential debates. This absolutism produces an exaggerated image for the public of how different each party’s approach is to the issues.

Differences do not always lead to war, however.

Congress should face these vital national issues with the same urgency and common values as it has shown with the coronavirus legislation. Members should not be preoccupied with how actions look for the party or with the superficial perception of victory or defeat. Winning is not the equivalent of success. Instead the focus should be on getting things done. The parties can sell to the electorate creativity, flexibility and achievement rather than denial, refusal and intolerance.

The coronavirus legislation reflects the imperative of working together to achieve a common goal. Numerous examples exist of leaders who have put aside ideology and partisanship to focus on resolving national problems.

Typically, Republicans are accused of taking a top-down approach to issues and the Democrats a bottom-up approach. Yet President Barack Obama, at the outset of the Great Recession in 2008–09, took action contrary to party orthodoxy. The problem was bank liquidity, and the solution was to bail out the banks. It was a top- down approach rather than the historically Democratic bottom-up approach. Obama poured money into Wall Street, which ultimately was paid back with interest, but avoided a worldwide depression. Ideologues such as Senator Bernie Sanders on the left and Senator Jim Inhofe on the right both voted against the financial bailout bill, which passed 74 to 25.

Republican President Richard Nixon’s creation of the EPA in 1970 is another example of action against type. Air and water were filthy, and concerted government action was essential to the solution.

What are the best ways to negotiate a solution to a problem? Here’s a four-part approach endorsed by experts and practitioners in successful negotiations:

  • Frame the issue in a way that is objective, not pejorative. The manner in which an issue is framed determines how it is addressed and ultimately resolved.
  • Do not take a hard position at the outset; instead set forth underlying interests. Discuss all common and differing interests objectively, focusing on the issues rather than the people or the party.
  • Create options for resolution without endorsing one or the other precipitously. Analyze each option or combination of options to find the best solution—the one satisfying the most vital interests identified.
  • Work to reach a consensus on the solution rather than focusing on political leverage to force a preferred solution. Listen and collaborate rather than insisting on a result wholly unacceptable to the other party. Mutuality and reciprocity are the hallmarks of successful negotiations. They also build relationships and are a template for subsequent legislative accomplishments.

The unfortunate pressures on politicians—of money in politics, of the omnipresence of lobbyists and of being “primaried” for lack of purity—all undermine the good intentions of public-minded Members to collaborate and work it out for the public good. If members of Congress keep their eye on the ball, however, they will succeed despite the naysayers and the unyielding positions of both extremes.

Diagnosis and effective therapies demand objectivity in order to find the cause of illnesses and cure them. The same is true for our non-coronavirus-pressing national problems. There is no simple prescription without the hard work of identifying the precise nature of our problems and working together toward their remedy.

Biography


Joshua M. Javits is a neutral mediator and arbitrator. He is a member of the National Academy of Arbitrators, on the rosters of the AAA, FMCS, NMB, and serves on numerous permanent arbitration panels. He served on four railroad Presidential Emergency Boards. He was Chairman and Member of the National Mediation Board from 1988 to 1993. He was Grievance Chair for the International Monetary Fund from 2007 to 2011. He was the President of the National Association of Railroad Referees (2014-16). He represented labor unions and management -- at different times -- in the past, and began his career as a trial attorney with the National Labor Relations Board.

Mr. Javits was an adjunct professor at the Georgetown University Law Center where he taught courses in arbitration, transportation labor law and alternative dispute resolution. He has been rated “AV” – the highest rating -- by Martindale Hubbell’s Best Lawyers in America since 2001.He is a graduate of Yale College and Georgetown University Law Center.



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