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<xTITLE>Two Shrewd Legislative Negotiators / Mediators</xTITLE>

Two Shrewd Legislative Negotiators / Mediators

by John Lande
February 2019

Indisputably

John Lande

In December, I wrote a post compiling news accounts describing how Nancy Pelosi masterfully negotiated to be elected as Speaker of the House of Representatives. A Washington Post article this week described how she has unified the Democratic Caucus in the House, as described below.

I just listened to a recent podcast about how Representative Barbara Jordan mediated a remarkable agreement in 1995 to comprehensively resolve immigration issues – issues that just brought our federal government to a halt for more than a month.

This post summarizes highlights of both these stories. Astute observers will note that both subjects are (or were) incredibly smart and strong women. Tragically, Ms. Jordan died in 1996, at the age of only 59.

Little-Known Story of How Barbara Jordan Mediated a Comprehensive Agreement on Immigration Policy

If you were sentient during the Watergate scandal – my, how simple compared to the current ones – you would remember Barbara Jordan, an eloquent black woman from Texas who was elected to Congress in 1972 and who came to prominence as a member of the Judiciary Committee that impeached Richard Nixon.

This American Life tells the story of how, in the mid-1990s, Rep. Jordan chaired a nine-member commission to develop a comprehensive immigration policy. The commission included members of both parties, who had sharply different views about the best policy. Despite their differences, they had a shared understanding of the facts and all really wanted to solve the problems. Rep. Jordan started by eliciting an agreement to seek a unanimous recommendation so that they would have more influence.

The podcast describes what would be familiar to us as negotiation and mediation techniques. In a rare instance, she took a strong position – insisting that the commission would not recommend elimination of birthright citizenship, which is established by the Fourteenth Amendment.

The commission reached what sounds like a reasonable solution which would have avoided the horrible conflict engulfing us now. I don’t want to spoil the story of how she did it and what happened to the agreement. Listen to the podcast to find out.

How Pelosi Negotiated within Her Caucus to Consolidate Democratic Power

Reporter Mike DeBonis described Speaker Pelosi’s shrewd “behind-the-table” negotiation tactics in “A Whole Lot of Carrot”: How Pelosi Keeps Young and Restless Caucus on the Same Page.” Here are extended excerpts:

“In the midst of her shutdown standoff with President Trump, the House majority leader has meticulously doled out power positions to shore up support with veteran lawmakers and calm jittery freshmen. Together, according to interviews with more than a dozen Democratic lawmakers and aides, the fight to end the 35-day government shutdown and a meticulous effort to distribute power among the party’s various ideological and generational factions has kept internal peace for the time being as Democrats eye the rest of their governing agenda.”

“‘I think I landed exactly where I needed to land,’ said Rep. Rashida Tlaib (D-Mich.), who sits on the Financial Services and Oversight panels, crediting Pelosi with giving her a platform to highlight working-class issues. ‘Everything she said she did, and I think that was a great start for us to be able to build this really trusting working relationship with her.’”

“Rep. Mark Meadows (R-N.C.), the House Freedom Caucus chairman who was the target of multiple GOP leadership retaliation attempts, said that Pelosi was handling her caucus in the only reasonable way in the modern age: ‘not a whole lot of stick, but a whole lot of carrot.’”

“A few Pelosi critics appeared to pay for their opposition. Rep. Kathleen Rice (D-N.Y.), who voted against Pelosi last month, was denied a slot she had sought on the Judiciary Committee, and Rep. Seth Moulton (D-Mass.), who led opposition to Pelosi for months but ultimately voted for her, did not win a slot on the Transportation and Infrastructure panel or the chairmanship of an Armed Services subcommittee. But those [were exceptions] rather than the rule: Others who voted against Pelosi won coveted posts, such as Rep. Mikie Sherrill (D-N.J.), who was named chairman of the Science, Space and Technology subcommittee on oversight.”

“In an interview, Ocasio-Cortez (D-N.Y.) compared the 235-member Democratic caucus to a soccer or football team. ‘Whatever sport, you have some folks who are defenders. You have some folks whose job is to go past the norm and go past that middle line to bring the ball to the end. And I think that we can work in tandem — we don’t have to all have the same position on everything in order to be a party,’ Ocasio-Cortez said. That attitude is music to the ears of Democratic moderates — the “majority makers” — who fear that extremism will turn off crucial swing voters. ‘The press, with all due respect, is trying to set it up as a battle between left and right — we’re not biting,’ said Rep. Kurt Schrader (D-Ore.), a leader of the moderate Blue Dog Coalition. ‘I have nothing against the [Ocasio-Cortezes] of the world. That’s fine. They represent their district. Let me represent mine. So far, that seems to be the case.’”

[Some describe Ms. Pelosi as a] “skilled hand at the tiller. Ocasio-Cortez, for instance, credited Pelosi for listening to the incoming liberals and understanding their agenda. ‘She respects intellectual and policy dissent but not tactical division,’ Khanna said. ‘You can think you have a better foreign policy vision, perhaps — an economic vision, social justice vision, racial justice vision. But do you have a better aptitude to be speaker of the House?’”

“But to many Democrats surveyed, the first month — thanks both to Trump and Pelosi — has set an encouraging tone for the next two years. To some top leaders, that reflects a shared sensibility in the party versus Republicans.”

A later article described how Ms. Pelosi is leading the Democratic Caucus to advance its agenda. “On Tuesday, Pelosi finally had her entire team on the field throughout three House office buildings, hitting on all the themes of the 2018 campaign and beyond. … House Majority Leader Steny H. Hoyer (D-Md.) runs a weekly meeting of chairmen to review which legislation is ready to move to the full House and to help them talk through which committee is holding which set of hearings. ‘The one thing that we don’t need to be doing is stepping on each other here,’ [Rep. Elijah E. Cummings (D-Md.), chairman of the Oversight and Government Reform Committee] said.”

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.



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