Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>Case Study of Negotiations with Honey and Vinegar, Carrots and Sticks</xTITLE>

Case Study of Negotiations with Honey and Vinegar, Carrots and Sticks

by John Lande
December 2018

Indisputably

John Lande

Last week, House Democratic Leader Nancy Pelosi completed an impressive campaign of negotiations to be elected speaker of the House of Representatives. This post provides an account of this campaign, synthesized from news accounts listed at the end.

One of the articles described Ms. Pelosi’s approach as being like honey, compared with President Trump’s vinegar strategy.  He has relied a lot on threats and generally has not been very successful.  I wrote a series of posts analyzing Mr. Trump’s negotiation skills (or lack thereof) based on some negotiations he did as president.  This post is the last in that series, with links to the earlier posts.  (For a more detailed analysis, see Marty Latz’s book, The Real Trump Deal, which reviews more than 100 deals he negotiated in almost 50 years.)

During the same week when Ms. Pelosi succeeded in her negotiations, it was reported that Mr. Trump agreed with the publisher of the National Enquirer to commit felony violations of campaign finance laws and to conspire with others to cover it up.  Most negotiation experts would agree that this was not a model of good negotiation.  Rather than honey or vinegar, these seem like agreements full of delayed-release arsenic.

Overview of the Negotiations

One article summarized Ms. Pelosi’s strategy this way: “To nail down the votes, Pelosi deployed the same tactics she used multiple times to muscle hard-fought legislation through the House during her prior tenure as speaker — methodically undermining her opposition, tapping a vast network of allies and relying on a grab bag of political favors.”

““The way she did it is why she’s been the leader for so long,’ said David Axelrod, former political adviser to President Barack Obama. ‘It’s incredibly challenging to put together the votes for anything in Congress, and she’s a master at it.  She listens and knows each person’s interests and their concerns.  And she puts the puzzle together, making concessions where necessary.’”

“Pelosi’s relentless honey-over-vinegar approach to dealing with political headaches — which she learned at the foot of her father, former Baltimore mayor Thomas D’Alesandro Jr. — has been critical to sustaining her grip on power since Democrats won the House majority this month.  She has personally courted disgruntled members in meetings and by phone while deploying her sprawling network to bolster her bid among both liberals and moderates, all but overwhelming her critics with her ability to outmaneuver them. ‘She’s doesn’t raise her voice; she doesn’t threaten anybody — that’snot her style,’ said Rep. Ro Khanna (D-Calif.), a Pelosi ally.  ‘She wins by winning the moral argument, by winning the public-relations argument, by winning the argument with groups and activists.’”

“Despite her reputation for political hardball, Pelosi has made advances over the past two weeks without resorting to overt threats, according to interviews with more than a dozen aides and members familiar with her efforts.  The approach throughout has been purely transactional, rooted in her Little Italy upbringing— what she called ‘the D’Alesandro model’ in her 2008 book, ‘Know Your Power.’ ‘You have to know how to count the votes, to anticipate how many people will vote for you,’ she wrote. ‘And in order to turn out those votes, you have to be organized on every level.’  Pelosi has been in listening mode since Democrats won the House in the Nov. 6 midterms, building a majority that could reach 235 seats.  Last week, she conducted a blitz of the major party constituencies — groups such as the Congressional Progressive Caucus, the New Democrat Coalition and the Congressional Black Caucus, among others.  Her allies, who include the incoming chairs of every major House committee, have fanned out to solidify her support and discourage her opponents.”

“Former Republican House speaker Newt Gingrich (Ga.) said Pelosi has a savvy understanding of what it takes to win high-stakes leadership elections, especially in an era in which institutional power is diminished.  ‘This isn’t Sam Rayburn’s Congress, where speakers could personally and institutionally intimidate people,’ he said, referring to the Texas Democrat who was the longest-serving House speaker.  ‘She is doing exactly what she needs to do, whether it’s inventing 16 meaningless titles so everybody can get something, or when people ask for a seat at the table, just building a bigger table.’”

“[O]pposition from the massive incoming class of freshmen wasn’t as strong as many had thought.  The rebels … wanted Pelosi gone — but that’s where their agreement ended.  Her critics had different motivations for opposing her and different strategies for dethroning her.  That discord ultimately weakened their hand during negotiations. ‘People started to get cold feet and decided they didn’t want to do it.  They were under a lot of pressure,’said a regretful Rep. Kurt Schrader (D-Ore.), a Pelosi critic who still plans to oppose her on the House floor.”

“Pelosi will be in charge for the immediate future, and any other outcome would have been ridiculous, like the Lakers deciding that they’re going to put LeBron James on the bench because it would be nice to give other people some playing time.  Everyone acknowledges that she’s the most capable legislative leader in either party, and she has been through precisely the current situation before, 12 years ago. In 2006 Democrats took over the House, and Pelosi led them through two years of opposition to George W. Bush, followed by two years of furious legislating at the beginning of Barack Obama’s presidency.”

“As for Pelosi’s opponents, they can legitimately say that if they hadn’t mounted this rebellion she wouldn’t have agreed to put a time limit on her departure, and there will now be more opportunities for younger members to take high-profile positions — which will be good for those ambitious individuals and good for the party as a whole.  That will enable them to save face by saying they (kind of) accomplished their most fundamental goal.  For her part, Pelosi hasn’t really given up anything, since she would likely have wanted to retire after 2022 anyway, and the various goodies she passed out to wavering members, like efforts to focus on the issues that matter to them and a ‘leadership development program’ for members who want to move up, cost her nothing to offer.  All of which shows that unlike a certain someone we could mention, Pelosi is a highly skilled negotiator who understands that there are times when the person across the table needs to be defeated, times when they need to be co-opted, and times when you can arrive at a solution that’s good for everyone. Imagine that.”

“The deal with the rebels was a capstone to a remarkable 48 hours for Pelosi, who sparred with President Trump on Tuesday at the White House over his demand for U.S.-Mexico border wall funding.  She challenged the Republican president and explained the legislative process to him — a clash that highlighted the stakes of the speakership race and Pelosi’s bid to be the most powerful woman in American politics.”

How Pelosi Won Through Negotiations

Rep. Seth Moulton, the leader of the rebellion, identified 58 potential opponents. On November 19, he organized a letter of opposition that was signed by only 16 people, though some opponents didn’t want to sign the letter.  There were 66 current or incoming Congress members who were “on the fence” and who supported her in the vote within the Democratic Caucus, on November 28, which she won by a vote of 203-32.  However, she could afford only 17 defections when the ultimate election would take place, on January 3.  So she needed to gain the support (or at least acquiescence) of some of those who voted against her in the caucus.

Ms. Pelosi used both carrots and sticks– though mostly carrots – to gain the support of enough potential opponents to secure her victory.

She had an army of high-powered advocates.  “Democratic Govs. Andrew Cuomo of New York and Tom Wolf of Pennsylvania weighed in with their state delegations on Pelosi’s behalf.  Labor union leaders including AFL-CIO President Richard Trumka, American Federation of Teachers President Randi Weingarten, and United Brotherhood of Carpenters President Doug McCarron pressed the critics to back her.  Soon, former Vice President Al Gore, ex-Sen.John Kerry (D-Mass.), and President Barack Obama’s former chief of staff Denis McDonough were lobbying lawmakers to get behind Pelosi.”

One person advised potential opponents about the risks of opposing Ms. Pelosi: “As a former Marine Corps officer, Moulton had a personal connection to the anti-Pelosi candidates who had military backgrounds.  He campaigned with them, raised money for them and worked alongside VoteVets, a progressive political organization supporting veterans running for office, to try to get them elected. … Pelosi had neutered Moulton right under his nose. Just days after the election, she phoned VoteVets’ Chairman Jon Soltz and asked for his help wooing the incoming freshmen.  Soltz had been working with Moulton but also had a close relationship with Pelosi. Soltz decided his group would remain neutral.  But he gave the candidates advice that proved critical to helping Pelosi, sources said: Think about the long game.  To be an effective legislator, you will have to work with the next speaker — which more likely than not would be Pelosi. The advice worked.  The candidates refused to sign the rebels’ document.”

The most dramatic episode was the turnaround of Rep. Marcia Fudge, who indicated that she might run for speaker.  “Almost immediately after Fudge floated her name for speaker, outside groups attacked her as being anti-LGBT.  And Congressional Black Caucus members she was close with — including black women who’d spent years as lawmakers hoping to see one of their own in the speaker’s chair — said they couldn’t support her. … Fudge said in an interview … that she was not interested in a deal and questioned Pelosi’s commitment to diversity. ‘Nobody wants the status quo,’ she said.  The next day, Fudge spent 40 minutes in Pelosi’s office in a meeting brokered by Rep. Elijah E. Cummings (D-Md.), a respected elder statesman close to both women.  When Fudge emerged, her remarks had lost their edge.  She told reporters that Pelosi was a ‘very, very good leader’ and said the conversation ‘went along way in trying to find some way that we can unify this caucus.’ … Fudge quickly bowed out after Pelosi met with her and walked through the enormous scope of the job — including huge fundraising demands and travel time — and offered commitments on Fudge’s policy priorities, including the opportunity to lead a panel on elections.”

Other defections followed soon after.  “Rep. Brian Higgins, who …signed the [Moulton] letter, broke from the group to endorse Pelosi the next day.  Senate Minority Leader Chuck Schumer, a fellow New Yorker, had lobbied Higgins to change his mind.  So too did incoming Ways and Means Committee Chairman Richard Neal (D-Mass.), a close Pelosi ally.  After a simple promise from Pelosi to try to get his Medicare bill to the House floor, Higgins caved — and expressed remorse.  ‘I shouldn’t have signed the letter,’ Higgins said.  ‘I had my reasons for breaking from the leader, I expressed those reasons very clearly, but I didn’t need a group to represent that. … I could have gotten that [deal with Pelosi] regardless.’  Rep. Stephen Lynch (D-Mass.), another letter signer, threw his support in return for some more legislative promises from Pelosi, including on infrastructure.”

“The bipartisan Problem Solvers Caucus had called for a significant changes that would curb the power of the majority party’s leadership, including requiring floor votes on certain bipartisan bills and opening up the amendment process. Pelosi last week unveiled proposed reforms that incorporated some of the group’s more modest suggestions but did not include several of its more ambitious demands.”

“One aide to a member who participated in the talks said the incumbents — running in safe Democratic districts —wanted to ‘give cover’ to freshmen in more marginal districts who want to stick to campaign pledges and vote against Pelosi without actually blocking her from the gavel.”

Pelosi’s team also used some sticks:  “Pelosi’s allies were starting to hammer the opposition, and they tended to highlight one uncomfortable fact about the rebels:  They tended to be whiter and more male than the Democratic caucus at large — especially after Fudge, a black woman, bowed out.  A Twitter hashtag tweaking the opponents as ‘#fivewhiteguys’ started trending — never mind they had women and minorities in their ranks.  Moulton emerged as a particular lightning rod, facing pro-Pelosi protesters at a November town hall and persistent calls for a primary challenge.  When during a CNN appearance he accused Pelosi of not moving aggressively on gun-control legislation during her previous time as speaker, her aides lined up gun-control advocates to criticize him.”

Pelosi benefitted from internal conflict and mistakes by the opposition. “There were other internal clashes: Other members of the rebel group urged Rep. Kathleen Rice (D-N.Y.) to take a more aggressive role as a female face of the anti-Pelosi effort, but she bristled at being asked to step forward as a token woman — especially by Moulton, whom she blamed for strategic missteps. … Shortly after the vote [by the Democratic Caucus, Pelosi] met with Moulton, Rice and Ryan in her office.  The meeting started badly when Rice thanked Pelosi for inviting the trio; Pelosi was puzzled, according to an aide — unbeknown to Rice, it was Moulton who had indirectly requested the meeting. And Pelosi was further annoyed that the group seemed to have no new offer, just the same talking points she had already heard.”

The final negotiation was a good illustration of interest-based problem solving. “A former bankruptcy lawyer steeped in complex negotiating, Rep.  Perlmutter maintained a warm relationship with Pelosi and assiduously avoided Capitol Hill hallway gaggles or cable news appearances.  Over the course of several long phone conversations, he directed the discussion toward what a ‘transition plan’ might entail:  A date certain for her departure?  No way, Pelosi said.  A new leadership election in 2019?  Forget about it.  But term limits for the Democratic leadership writ large?  That was something she was willing to negotiate.”

“It was another low-key holdout, Rep. Bill Foster (D-Ill.), a former physicist who made a fortune selling theater lights, who devised the key compromise: While leaders would be entitled to three terms, they could win a fourth term with a two-thirds caucus vote. Pelosi, who has already served two terms as speaker, would not become an immediate lame duck, but younger members would increase their leverage to force a change if necessary.”

The term-limits agreement would need to be approved by the full Democratic Caucus, which wouldn’t have a chance to vote on it until after the vote on the speakership.  Reps. Hoyer and Clyburn, the second- and third-ranking Democratic leaders, and others might not support this agreement, so the opponents couldn’t be sure that the agreement would be approved.  “Democrats remain deeply split on the question of term limits, and it is not clear that they are prepared to endorse the move when the party meets to determine its rules. … Mr. Hoyer has flatly said he is against the idea and told reporters on Tuesday, ‘She’s not negotiating for me.’ Members of the Congressional Black Caucus have long been opposed to term limits, which they view as eroding their influence built up over many years.”

“Pelosi’s decision to make a public statement supporting the change — and agreeing to abide by the terms even if the caucus didn’t — became a necessary ingredient to securing the rebels’ support.”

“The rebels also said Pelosi had agreed not to retaliate against those who had opposed or will continue opposing her.  The Pelosi aide disputed that such an assurance was necessary: ‘She didn’t agree not to retaliate, because she doesn’t retaliate.’”

It seems likely that after she is elected speaker, Ms. Pelosi will not retaliate and that most rebels will cooperate with her.  They share many common policy and political interests, particularly opposing Mr. Trump and his supporters and agenda.

In an open letter to Congressional Democrats during the campaign for speaker, former Congress member Donna Edwards wrote, “I remember when I was sent to Congress in a special election in 2008, having beaten an eight-term incumbent for whom then-Speaker Nancy Pelosi had campaigned.  I was the progressive champion.  I brought to the table a 20-year career as a nonprofit lawyer, advocate for women and progressive philanthropist.  I was in no mood to support Pelosi and the ‘corporate Democrats’ she represented.  I was wrong.  As soon as I was sworn in by the first female speaker, I began to appreciate the power of that role and her understanding of it.  Once the election was over, it was over; I was her member. First, she wanted to know my aspirations and how she could help me achieve them.  Then, I watched as she paid close attention to the individual needs of the Democrats, especially those from vulnerable districts.  You will need this attention — you will need Speaker Pelosi to protect you from harmful votes and to advance a legislative agenda with priorities that you can sell back home.  And, importantly (until you reform the system), you will need Speaker Pelosi to raise for the 2020 cycle at least the $135.6 million that she raised for this one — including $129 million that went directly into the Democratic Congressional Campaign Committee, about half of what the DCCC took in for the 2018 cycle. I know money isn’t everything, but it sure helps to hire a good manager, pay for a strong field program and communicate with your voters.  It will help to retain your majority.  Others may step forward to say they can do these things as well as Pelosi.  Trust me, they cannot.”

Looking Ahead to Future Negotiations

We can anticipate very different dynamics in negotiation within the federal government over the next two years.  Because the Democrats gained control of the House of Representatives, we will have divided government as the Republicans will still control the Senate and presidency. Often, this leads to “gridlock,” though sometimes the opposing parties find it in their interest to make some deals even in these situations.

The power dynamics will shift dramatically from the past two years.  The Democrats will have a significant majority in the House and Speaker Pelosi has once again demonstrated that she knows how to use political power.  President Trump is on the defensive as he and his relatives and associates face a growing list of serious investigations into every aspect of his life.  Congressional Republicans are in an awkward position. They have consistently supported Mr. Trump during the past two years and they risk being “primaried” by Trump supporters if they break from him now.  On the other hand, if there continues to be a flow of serious, well-documented revelations about the president and those around him, they may find it increasingly difficult to support him.

This could be a wild time.  Stay tuned.

Sources

Rachael Bade, Heather Caygle and John Bresnahan, ‘We Were Shocked as Sh–‘: How Pelosi Crushed the Dem Rebels: The Longtime Democratic Leader Outmaneuvered Her Critics and Showed Exactly Why She Will Be Speaker Once Again, Politico, December 13.

Julie Hirschfeld Davis, Pelosi and Dissident Democrats Reach Deal to Limit Her Speakership to 4 Years, New York Times, December 12.

Mike DeBonis, Pelosi Strikes Deal with Rebels, Will Step Aside by 2022 to Win Speaker Votes, Washington Post, December 12.

Mike DeBonis and Robert Costa, ‘Her Skills Are Real’: How Pelosi Put Down a Democratic Rebellion in Bid for Speaker, Washington Post, December 13.

Mike DeBonis and Robert Costa, With Honey Instead of Vinegar, Pelosi Steadily Inches Toward the Speaker’s Gavel, Washington Post, November 22.

Donna F. Edwards, Don’t Blow It, Democrats. There’s Only One Choice to Be the next Speaker, Washington Post, November 16.

JM Rieger, Over 22 Days, Nancy Pelosi Persuaded 66 On-the-Fence Democrats to Support Her, Washington Post, November 30.

Ruth Bloch Rubin, Will Nancy Pelosi Be the Next Speaker of the House? Here Are 4 Lessons for Her Challengers, Washington Post, November 27.

Paul Waldman, How Nancy Pelosi Put down a Rebellion and Allowed Everyone to Win,  Washington Post, December 13.

Some of these links won’t work and you may have to google the articles.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



Email Author
Author Website

Additional articles by John Lande