Skip to comments.A Lawyer’s Tips on Negotiating for Dummies and Congressional Republicans
Posted on 12/06/2012 5:26:53 AM PST by Kaslin
Somewhere, theres a whiplash lawyer who runs his law office out of a van down by the river who watches the congressional Republicans attempt to negotiate the fiscal cliff crisis and has to turn his head away. John Boehner and his inept coterie of GOP establishment cronies have made every mistake in the book. Its professionally embarrassing.
Frankly, if these hacks were my associates, theyd be on a street corner with signs reading Will litigate for food.
Congress is famously full of lawyers, but what people dont understand is that it is really full of bad lawyers. Good lawyers tend not to want to take the pay cut. And the current crop of Republican leaders negotiate like bad lawyers do, which is great for President Obama. Hes giddy, and I know the feeling. When I face opponents like Boehners bunch at a mediation, I start checking out new 6-series convertibles on my iPhone.
A good negotiator, first and foremost, understands his clients goals. This seems pretty basic you want to know what the people you represent want to achieve by negotiating. However, this concept seems lost on the GOP.
Their clients the voters who elected them were pretty clear. No tax increases. Period. After all, not one Republican congressman was elected on a platform promising I will raise taxes in order to help Obama morph America into Greece. Well, maybe some of the ones from New England did, but thats beside the point.
The client doesnt want tax increases. This implies that the GOP should wait for it not support tax increases.
Naturally, the first thing the GOP does is roll over. Then to compound it, Lindsay and Saxby smarm up the Sunday morning talk shows with sanctimonious talk about how they are so patriotic that they are compelled to break their solemn pledge to their constituents never to raise taxes.
So, having not just discarded the clients intent, the congressional GOP then rubbed its clients collective nose in it. Theres nothing that sets you up for failure like setting your sights on a goal that, to your client, constitutes failure.
Besides knowing what the client wants and not utterly ignoring it the skilled negotiator next figures out what the other side wants. Negotiations are rarely just about the putative subject. In a lawsuit, sure theres money, but there is also often emotions anger, pride, and so forth. All of these play a role. And sometimes, there is another objective entirely.
Here, its pretty clear that Barack Obama is not merely trying to get the Republicans to raise taxes. Additional fuel for the bonfire consuming Americas culture of self-sufficiency is a sweet bonus, but he has his sights on something more.
Obama is trying to get the GOP to commit suicide so that it will be unable to oppose him. And the GOP is responding to this attempt to disembowel it by handing its enemy the figurative samurai sword.
Obama sees that the kind of betrayal the GOP Establishment is dying to pull off will split the party and ignite an internal struggle that would make the post-1968 Democratic convention convulsions seem like a group hug. Hes not negotiating to get something. Hes negotiating to do something, and we conservatives are the ones Obama wants it done to. Moreover, he wants the GOP Establishment to do it for him.
Now, when you understand what your client wants and what your opponent wants, you are ready to form your negotiating strategy. What the GOP Establishment fails to understand is that reacting is not a strategy. Whining that the liberal media is going to be mean to you if you stay true to your principles and to your word is not a strategy. Cursing Grover Norquist for allowing you to make a promise to your constituents about never raising taxes, which helped you get elected, is not a strategy either.
A strategy focuses you on your goal, which means the congressional Republicans have no strategy because they have no goal other than to make the hurting stop.
Yet the GOP actually has several aces in the hole the only reason they are taking the submissive role in the Fifty Shades of the Fiscal Cliff playing out before us is that they chose to assume it. Maybe Obama has a mandate, but so do they. They should be exercising it.
Their first step is to stop showing fear and to start counter-attacking. So America falls off the fiscal cliff? Who cares? Hell, a substantial number of the rich and sorta-rich are Democratic voters in blue states anyway. Let them put their money where their progressivism is. And if theres another recession, awesome. We call that a teachable moment for America about what happens when its president is a spendaholic who would rather campaign than lead.
What about those cuts to defense? Okay. Well live having only exponentially more military power than our nearest competitors. And if all else fails and the bad guys invade, as Red Dawn teaches, well just open up our gun safes and go all Wolverines on them.
Sound a bit, well, crazy? Unreasonable? Even scary? Good, because a skilled lawyer understands the awesome power of being the craziest, most unreasonable and scariest guy at the table. Obama is hanging tough only because he thinks he knows the congressional Republicans are dying to fold well before he pays any kind of price.
But what if the GOPs offer was a two-word response beginning with the letter F and what if they meant it? After all, the secret of being the unreasonable negotiator is that you cant be bluffing, that you have to be ready to pull the pin and take the whole table out with you. In other words, the Republicans ought to be telling the President Hey, Ill be Thelma and you can be Louise, and were pedal to the metal.
The GOP knows the worst case scenario rates on everyone go up and sequestration. All they have to do is be willing to take the hit for longer than Obama. The GOP has an advantage the liberal media will screw them no matter what they do. This gives them incredible freedom.
Go off the edge and then, after the mainstream media panics and David Brooks wets himself, pass a bill dropping all the rates back and send it over to Harry Reid. Now its the Democrats problem. Thirty-three senators have to run in 2014, around 20 of them Democrats. How many are going to want to vote No on dropping the rates back? As the election cycle begins, I estimate the number will shrink to roughly zero.
In other words, turn the tables on the Democrats. Split them. They have the most to lose, not the GOP. If the congressional GOP loses this fight, thats just a dog biting a man. But if Obama loses it, thats a man biting a dog.
This is the final lesson. A sharp lawyer takes a tough situation and turns it to his advantage, while a hack takes an advantage and turns it into a tough situation. With a little skill, the GOP could not only get what it wants tax-wise but also turn the tables, setting the Democrats at each others wattled throats and neutering Obama.
After all, isnt crushing progressive dreams really what the GOP should be all about?
All it takes is a little guts and some wiles. Come on congressional GOP make that whiplash lawyer proud.
Forget negotiating. Call their bluff.
Pass a bill for a real tax the wealthy tax and watch dingy harry and Obama fall all over themselves to explain their position.
Pass a bill to take 100% of accumulated wealth of any elected official greater than 5 million dollars.
The solution is for the House of Representatives to pass conservative legislation, including a drastic reduction in transfer payments, and eliminate Obamacare, send it to the Senate, and then just go home.
Every time a media person asks what the GOP is going to do about the financial mess, all they have to do is say the Senate has to do is vote on the legislation and get Obama to sign it.
Any legislation to increase the debt limit should be in very small increments, attached to additional conservative legislation.
It won’t take long for those sucking off the government teat to tell the Democrats to go ahead and pass the legislation.
That’s what a real negotiator would do. When it comes to financial matters, the House of Representatives hold all the cards. The Democrats did this for 40 years; the Republicans can do the same.
An extremely well-written article that describes EXACTLY what is happening here.
I would start off by naming any and all legislation regarding this matter “Child Enslavement Act” and force the President to sign any and all Budget and Debt Ceiling bills labeled as such. Because that is exactly what it is, this debt can NEVER be paid, all that matters is that we ENSLAVE our CHILDREN into paying interest to Bankers for eternity for the privilege of being an American.
Certainly the idea of representation is going to hell in a hand basket.
They dont have to raise taxes. The tax increases are automatic.
Such a stand would be suicide for Republicans: Not one Republican in the House won their election on refusing to extend middle class tax cuts unless they can force O to cave on the others which which he has no reason to do.
If it makes them feel better they can send Reid two bills one <=$250K and let him reject the ones extending >= $250K which he will do.
This session will end with the House extending the middle class tax cuts by themselves and little else, and they have no real choice in that.
House Republicans have never come out and said that they will never extend those rates unless they get O to sign a bill with other stuff in it. Its best just to put this behind them and move on to the next battle.
A suicidal stand on something they cant win or even defend now will make sure next years house opposes nothing.
“John Boehner and his inept coterie of GOP establishment cronies have made every mistake in the book.”
Maybe Boehner’s orchestrated a good strategy: (1) show that Republicans have tried to get a deal done including giving in some on raising revenue, (2) but don’t bend so far as to make a deal on Obama’s terms. Today we have (3): McConnell proposing to put Obama’s plan up for vote in the Senate and Reid objecting.
Now let’s let this thing go over the fiscal cliff. Republicans have an excellent case that they’re not to blame.
Bob Woodward said this yesterday:
This is the Obama era, it is [the presidents] economy, he said. Speaker Boehners an important player and this is significant, but it is Obamas job to lead and define so if there negative consequences here, particularly in the economy, it is going to be, In the Obama era, things didnt get fixed.
The GOP has an advantage the liberal media will screw them no matter what they do. This gives them incredible freedom.
Use it as a lever, on the principles of martial arts leverage.
His whole flawed standoff plan depends on a incorrect/faulty assumption : that Reid has to take up a vote on a bill the house sends them. For two years Reid ignored bills he doesnt like.
A while back the senate sent Bohner a bill extending tax cuts <$250K. Did that force Bohner to put that up for a vote? Bohner wont put that up till he wants it passed and has the votes.
Jeeze, maybe this this lawyer needs to go to chasing ambulances
Excellent piece. Public bookmark for me.
OK, smart guy; here's your chance to shine: Let's hear your Big Plan...
I appreciate you asking :)
Stop negotiating, and no passing tax increase bills in house
Pass the partial extension <$250K and send to Senate, if you like include another bill extending >$250K with it.
Get on TV and let voters know you (House Rs) saved (middle class) voters from a tax increase
Declare on TV the Obama crisis is over
Then daily Beg Obama (show for voters) ON TV to NOT raise taxes on job creators, tell voters you did everything your power to stop him from doing it and why it will be bad for this country. Dont worry, Voters will automatically give Obama credit for raising those taxes even though they are automatic, he cant get out of that if the economy slows.
Let everything else go over the cliff. No restored spending, no stimulus, no nothing (the debt limit will be another tough fight I wont get into here) .
You made your tax bed Dems. Blame every problem for the next 4 years on those Obama tax increases
Thanks again :)
Here’s one I pointed out a week ago or so,.
If Obama gets these taxes to go up (which he will as they are automatic) and for whatever reasons voters think the economy has improved in the next few years, for whatever reason (many things can happen), then Republicans are screwed.
This is what happened under Clinton.
But if the economy is still crap or gets worse than Republicans got an issue again.
I don't for-see anything happening like that in the near future.
Let’s see....what is the only part of this the Democrats have been talking about? Oh, yeah, the Middle Class tax cut. So we give them that. And then we try to take the credit? Yeah, the liberal media will do that.
Just so I can tune in - which media outlet is going to carry the Republican message to the voters. We should have tried this plan 4 years ago.
This is spot on. The only wrinkle to add — actually, it’s bigger than a wrinkle; more like the Alps — is that for this to work, the Republican caucus has to stick together. If 20 weak sisters go over the side, we lose.
To compound the problem, the liklihood of the weak sisters getting the willies increases exponentially if we go over the cliff, begin sequestration, get a government shutdown, etc. There will be those who will be tempted, just when the battle gets serious, to seize the opportunity to prove their bipartisan mettle by standing proudly against Party. And they know that they will be annointed Statesmen by the MSM. (Chris Shays used to live for moments like this.)
Fortunately, the Tea Party has had some success in instilling the fear of retribution. Selling out the side is more dangerous than it used to be. That’s all to the good.
But Boehner is still walking a tightrope. I am more inclined than many here to suspect that he is playing his cards correctly. He has to keep the caucus united. If he went fire and brimstone on Obama, which Obama deserves and which would gratify most of us, he would make it much easier for the RINOs to bolt. If he poses as Mr. Conciliation and tries really, really, really hard to go the extra mile for a deal, he makes it tougher.
This has nothing to do with public perception. It has everything to do with perception within the cloakroom. Is Boehner giving the weak sisters the cover they need back home? If we go off the cliff, they’re the ones we have to keep on board when things get ugly. Republicans will get pasted by the MSM early but will get stronger as time wears on. We can live a lot longer and happier with a lot less government than the dems can. But the weak sisters will be soiling themselves from the getgo, and Boehner has to keep them on board.
Worth repeating, do you think defense cuts are what is really scaring the R's and that is making them fold or is it the Georgetown parties they won't be invited to?
The alternative that this lawyer (who doesn't even know how congress passes bills) suggests is to have Republicans hold middle class tax cuts hostage to the the rich tax cuts, something none of them ever campaigned on specifically or promised specifically.
Then this crack-pot seems to assume that as the middle class tax cuts go up because Rs refuse to budge that the MSM will blame Obama for it.
That is idiotic and party suicide. If Bohner was crazy enough to do that that Rs would lose HUGE and then surrender anyway and it would be so humiliating that Rs would oppose nothing next year. They would be crushed.
So I say pass the middle class tax cuts and loudly take credit for it by saying you were never against it. Its really the ONLY option.
The tax cuts didnt expire until exactly 2 years ago not 4 years ago and then Speaker Pelosi and Obama gave in to the 2010 lame duck Senate filibuster partly because they couldnt round up enough Senate votes (they needed 50 with budget reconciliation and they couldnt even pull that out of their 59) at the time to pass the partial extension. So they extended them all two years, and they got FICA tax cuts in return. That was a congress fully controlled by Dems.
But if those Dems were bolder and were able to round up enough Dem votes in the Senate (Pelosi still had the house then ) to pass only the middle class <$250K ones they would of.
I have posted many times that this would have given Republicans an issue for the following 4 years, and Romney too.
“You Dems raised taxes on job creators and it isnt working”
Instead O made raising those taxes a major campaign promise and he won and won house and Senate seats. So he has no reason to give in, unlike 2 years ago when he had a re-election coming and the House and Senate.
You guys are keeping me on my toes :)
Correction “...for the following 2 years” till 2012 not 4.
Makes total sense. Which is why Boehner won’t do it. Instead, he’s purging the conservatives from important committees.
“congressional Republicans have no strategy because they have no goal other than to make the hurting stop”
“Any Commander who has failed to take their objective and is neither dead or severely wounded has failed to do their duty.”
Gen. George S. Patton
Great article. I’m not an ambulance chaser, but I do negotiate fees, leases, purchases, etc. Rule No. 1 is to get the person with decision authority at the table. If no authority, then no negotiation. When Tax-cheat Geithner shows up, the first question is “do you have authority to commit to a final agreement?” If not, then get someone there who does. Years ago I was in mediation with the IRS, and asked that question to the DOJ lawyer. He hemmed, and hawed and said no. The mediator (a federal magistrate) asked him if his superior had authority. He said no. Then the question was who had authority. He replied, “the President Ronald Reagan.” The magistrate told him to get RR on the phone or concede. They conceded.
Moral: Negotiating with fools is fruitless!
Obama has been one step ahead of them on every fight the past two years.
Forget the MSM, Obama poll tests and focus groups every stated position on TV to turn key voters against Rs.
But on the other side Republicans go into every fight seeming assuming voters will line up on their side automatically, Romney sure acted like that.
The result was predictable.
Most satisfying piece I’ve read here in 11 years.
In a Con Game, Shills are The Grifter’s assistants and are used to distract the victim or to encourage the victim to participate in The Con.
So far the past two years O has scored 3-0,(4 if you include Romney) and some of those R losses have been humiliation.
I am suggesting beating him instead of getting crushed again.
All this losing gets is more whining about the MSM, voter fraud, and talk about how hopeless the fight is,.
Shills??? Here’s one that makes me suspicious :
“The MSM will blame Rs anyway and then so will the voters so screw the voters and lets just go all out and p... off every last swing voter and ignore their angry phone calls and emails from our home states so we can never win an election again”
I occasionally get a ping that sounds like that, not its not the regular.
If I was a Dem that’s what I would be posting here.
Do you think Boehner will read this, and would he understand it if he did?
This hardball strategy is one I have used often in my personal life and business - I’ve used it often because it often works.
1. Class-Warfare is immoral & unamerican.
2. A tax system that punishes success to reward failure is economically insane.
3. The Founding Fathers considered the use of taxation to redistribute wealth to be totally unacceptable (Art. I, Sec. 9). Having sworn to uphold the Constitution, one cannot vote for redistribution of wealth.
4. During the 124 years, from 1789 til 1913, when we followed the Founder's Taxing policy, we had the greatest material growth rate of any people on earth--and we retained our spiritual values in the process. Nothing, proportionately, or adjusted for inflation, has since compared! (And just look at what the class-warfare mentality has done to our spiritual values!)
Do not let anyone put Obama's definitions into anyone on our side's mouth. Obama has never been about "fairness," anymore than Lenin, Trotsky, Stalin, Hitler or Castro were ever about "fairness."
That's just it, the Repubs have no interest in crushing the Dems. They just want the dance to go on and on.
A little deal here a little deal there, what fun. It makes them feel powerful.
Defeat the Dems, why would they want to do that?
I agree %100. Either call their bluff and/or Pass them! Let them fall on their own sword.
They seem to keep trying to alter those facts, but it will not change.
The best course is to ignore the media and just do what's best for the country and let it go at that. Reasonable and fair-minded people will understand.
They also need to understand, that in a fight for survival when things fall apart, the liberals are going to be the first to fall apart. They are the weakest, and least suited for survival. Everything the Obama administration is doing is meant to weaken the right down to their level in order to give them a chance.
I don’t think he cares. There is one salient difference between the attorney/client and representative/constituent relationship which was not discussed in the article. As a criminal defense attorney, I can best summarize it as “The Bratwurst Speech” that I often give my clients who are reluctant to take a really good plea deal. The speech is basically:
“I’ll try your case if you want me to. I’ve done over a hundred jury trials and I like trying cases. But keep in mind that there is only one result I can guarantee to happen when the trial is done, and that is that I’m going to go home and cook a bratwurst on my grill. You probably won’t be going home. I don’t have to live with the consequences of your decision. You do.”
See, I’m a mercenary. I have no personal stake in the outcome of the case. That keeps me objective. Congressmen don’t have that objectivity, they have a personal stake in everything that happens as they fear loss of power more than loss of life itself. The loss of objectivity and fear drives them to do some really stupid things.
Just not sure I understand which media will carry the story without the spin. 4 years ago was a presidential election. Didn’t get much coverage about anything excpept what an evil person Sarah Palin was. Is that the media we should depend on now.
To depend on the message to be delivered by the MSM is not a tactic that has worked. The message I am getting is that Boehner is not on our side. He has given away every advantage he had.
“We will negotiate for the American People, but we will not allow the government to be shut down” gave the dems all they needed. Just wait and when the only option is what they want or shut down, he will give in. Happened just like that.
Gee - he gives the enemy the bullets to shoot him with.
Bohner is the cowardly Lion. No, the MSM will not be much help.
My thing is I don't want a deal, I definitely don't want a Bohner Obama deal because that will lead to another Debt limit ‘Budget Control Act” obscenity.
I just assume they pass the tax cuts, declare victory on that and the middle class, then declare crisis over on all the shows and tell O to pound sand on a deal.
If Rs take on a fight they cant win or explain they will lose and God knows what will be in the resulting deal.
I will give another realistic prediction: No one will challenge Bohner to be Speaker because no-one wants to be O's bitch.
Allen west -Sarah plain
In fact we know exactly how this guy's plan would play out from the FICA tax cut fiasco exactly a year ago
1) House Republicans listen to this guy and say ‘ taxes on the middle class will go up unless we get a full extension, for all that income above $250K too. We will not extend them without the others. We dont leave the job producers behind. We won the election.”
2) In January taxes go up (assuming it gets that far)
3) Obama gets on TV and Townhalls telling middle class voters that their taxes are going up because Republicans once again are putting ‘the vrich’ ahead of them.
4) MSM hounds Republicans asking them if they are happy they ‘raised taxes’ on the middle class
5) House Republicans get flooded in a tidal wave of angry emails and phone calls from those who voted for them.
They try to go home for a visit and there are angly mobs around their house with signs
“I am sorry I voted for you. You raised my taxes you lying #%%$$”, many are white and 50 + obviously not ACORN.
6) The stock Market tanks
7) House Republicans even the most ‘conservative’ go to Bohner and say “WE made a big mistake. We need to cut those taxes (under$250K income) and put this behind us. My voters want to kill me” just as they did with last years FICA.
8) The House quietly passes the extension in secret just as they did FICA last February.
9) Obama signs it declaring that the Rs finally saw reason
10) The stock market recovers some just because the panic is over sand no one knows that the resulting Obama tax increases hurt the stock market because they think house Rs crashed it and O saved it.
11) Obama gets credit for saving the economy. AGAIN.
12) House Republicans dont challenge O again for the next two years. So the Republican party melts down in civil war. Dems bayonette the R wounded.
13) In 2014 election Reid and Pelosi get back the same numbers they got in 2009.
14) January 2015 Congess passes a bill making Obama King. (no more filibuster to stop it) Republicans blame voter fraud.
Or does anyone think middle class voters will act any differently than they did a year ago on FICA with that coming tax increase?
they will challenge Bohner as Speaker?
Except for #14, that’s a pretty realistic prediction of how this plays out.
I just added #14 because we need a laugh when the situation is so bad.
It worked. I laughed! LOL!
Steve Martin once had a bit like that:
I have some hostages! Yup, I took ‘em because that’s what people do these days.
I have my demands...a list of three demands that must be met before I’ll release them: 1) a getaway car, 2) $250,000 in cash and 3) I want the letter “M” stricken from the English language.
(You have to have at least one ridiculous item in there, so later if you get caught you can plead insanity. I mean, Really? “A getaway car??”)
Somebody please send every GOP Congress critter a copy of this. It has to be someone they will listen to.
You might be right. But you are making a lot of assumptions and projections. You are assuming that things are the same as they were a year ago and that there will be no changes. Pretty big assumptions. I think that the Democrats like to raise taxes. They can say whatever they like, but their actions say that they like to raise taxes. If the Democrats say that they don’t want to raise taxes on the middle class, then by their past behavior we know they are lying. They do want to raise taxes on the middle class. So, they are doing all of this for show. Here’s the plot of the show. The really nice guy Democrats drag the mean old Republican villain out in front of the audience and give a speech to the audience about how mean the Republicans are and how they, the Democrats, really want to help the middle class audience by raising taxes on the rich. After this show comes the next show where the Democrats drag the mean old Republican villain out again and give a speech to the middle class audience about how Republicans messed everything up and now the Democrats, against their better nature, will have to raise taxes on the middle class and then have the middle class audience boo and hiss the Republicans. The Democrats control the theater, the media. So how do the Republicans change this? They can stay off the stage. They can build another theater. They can not recite their scripted lines. They can throw a smoke bomb. There’s always options. But when the Democrats say they want no tax increase on the middle class, we know they’re lying and if we follow their script, we’re going to get tomatoes thrown at us.
theres the rub aint it??? NObody is willing for their taxes to go up, regardless of what some tax sheltering billionaires might claim...
the vast majority [mid income] will bitch and moan if the rates arent extended, as you say, the pressure on the CONgress-critters would be huge, and theyd be crucified in the press...
and, the ideological battle would take a hit as well, as you cant claim that lower rates result in more *revenue* [which is demonstrable if the 'R's would bother] and simultaneously threaten millions of people with crimping their budgets, and the resulting fed *loss* as well...
pass the damn middle extension, and then keep pushing for the top % as the economy crashes...
Blame every problem for the next 4 years on those Obama tax increases
You must accept that this will NEVER happen! No matter what January brings, even if it is the end of the world, it will be blamed on Republicans by pop media: the only kind of “news” dissemination that has influence with the majority of Americans.
Meanwhile back at the next campaign - every single Republican will receive the criticism that ended George Bush 41’s political career. Remember: his pledge was “no new taxes” and then one of his own advisers convinced him that a “little tax increase in order to cooperate with Congress” was a good idea.
The only thing that GHWB is remembered for is his renege on his pledge.
“...when the Democrats say they want no tax increase on the middle class, we know theyre lying and if we follow their script, were going to get tomatoes thrown at us.”