Dems can negotiate and avoid another shutdown by reframing and adding issues

With House support on Dec. 20, the Senate delivered a spending bill — minus wall funding — to President TrumpDonald John TrumpThorny part of obstruction of justice is proving intent, that's a job for Congress Obama condemns attacks in Sri Lanka as 'an attack on humanity' Schiff rips Conway's 'display of alternative facts' on Russian election interference MORE, who refused to sign, triggering the shutdown.

Thirty five disruptive days later, after an $11 billion cost to the economy, Trump signed a spending bill — minus wall funding — similar to what he vetoed. This trauma could simply have been avoided by a December “yes."

ADVERTISEMENT

Back to square one? Hardly. Democrats now face a president who, with turmoil up and polls down, capitulated in round one. With a chastened Trump, the odds of avoiding shutdown 2.0 should rise, but will they?

Now Trump threatens a Feb. 15 shutdown if there is no wall.  Pelosi said, "We're not doing a wall." Trump said the government could be closed for “months or even years” without wall funding.

Or he could declare a national emergency despite Sen. Mitch McConnell’s (R-Ky.) reportedly warning him against it given Republican opposition in the Senate (not to mention precipitating a constitutional crisis). The wall could again become a dealbreaker.

Given bipartisan support for border security and Trump’s softening characterization of the wall, normal hard bargaining should produce a sensible agreement. Example: “The wall” would transform into some kind of physical barrier erected only in cost-effective places, perhaps triggered when 95 percent of separated families were reunited. A compromise on money would include humanitarian provisions, more border agents and immigration judges, plus other border-securing measures (e.g. drones, sensors).

But times are not normal. Ongoing talks still risk becoming mired in a win-lose, single issue negotiation over the wall. Trump could again play to his base, blaming soft-on-immigration Democrats who, empowered by their earlier win, could dig in, trapping the parties in a downward spiral toward shutdown 2.0.

Yet in a bit of wisdom, Dwight Eisenhower suggested a counterintuitive out, “if a problem cannot be solved, enlarge it.” How? By transforming the “ wall v. no wall” single-issue battle into a multi-issue deal, equipping each side with a “victory speech” that would persuasively justify to its constituency why it got more than it gave.

Suppose the parties hit the wall  and can’t negotiate a sensible compromise, but one or more really want to avoid another shutdown or emergency declaration. Eisenhower's possible advice? Adding DACA to the mix has been a natural since Trump hugely values getting his wall while Democrats hugely value a permanent, legislated path to citizenship for the Dreamers — those brought here before age 16 with clean records, in school, working, or in the military.

Although rejected before, a “ wall for Dreamers” package could form the kernel of a deal. Supported by Trump as part of an earlier proposal, he also offered temporary DACA flexibility after his Jan. 8 primetime address, but added poison pill immigration provisions. How could this package be enhanced to give each side enough value to declare victory?

Modest reframing could render DACA concessions more palatable, perhaps rebranding it with slight modifications as Limited Legal Path to Citizenship? (LLPTC). While a win for the Democrats, the blow would be softened for Trump since 80 percent of the public supports it. And, as he tweeted “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?”

To enhance a DACA/LLPTC  wall trade, Eisenhower might counsel adding further issues that both sides want but that neither has been able to get, best proposed by a bipartisan congressional group such as the “Problem Solvers Caucus” so none of the negotiators appears weak.

For example, give the federal government the right to negotiate prescription drug prices with pharma companies, an option denied to Washington since George W. Bush’s prescription drug plan.

Save money, strengthen Medicare and gratify the 92 percent of the public who prioritize lower drug prices. Much greater negotiating complexity, but added value for the package (except to the pharma lobby). Some drug savings might even be earmarked for border security.

But what do pharmaceutical prices have to do with the wall? No substantive link as with DACA, but these shutdown negotiations actually concern the whole federal budget, not just Trump’s focus on the wall. If a largely consensus policy issue — the right to negotiate with Big Pharma — linked to that budget adds value for all and lowers the chance of costly impasse, it would be a good idea.

Trump, vindicated as the great dealmaker, could spin this as having gotten his Wall, cheaper drugs, and no shutdown. The Democrats, “we avoided a shutdown, protected the Dreamers, guaranteed family unification, obtained cheaper prescription drugs in a blow to big pharma — all in return for modest money toward a largely illusory wall."

ADVERTISEMENT
The Democrats could also point out that since all but about 100 miles of the 1,954 US-Mexico border is in private hands, years of wall-focused eminent domain lawsuits would ensue, which conservatives hate. Even the border fence Congress approved in 2006 has been tied up in litigation, especially by ranchers who detest government encroachment on their land.

Alternatively, emboldened by their victory in shutdown talks 1.0, the Democrats may play to win this new game of chicken, unable to stomach any Trump win or they may overplay their hand, killing any deal by demanding that it also include a $15 minimum wage, Medicare for All, and so on.

Seeking revenge for prior humiliation or go to the mat for his base, Trump may stonewall, but with smart play, the Democrats can avoid blame for shutdown 2.0 or a constitutional crisis from an emergency declaration. They would have very publicly agreed to a sensible version of the wall, gotten DACA/LLTPC, reunited families and cheaper drugs. They will have shown willingness to compromise, positioning themselves for 2020 as the “party of governing” versus the “party of no.”

James K. Sebenius teaches negotiation at Harvard Business School. He is a co-author of, "Kissinger the Negotiator: Lessons from Dealmaking at the Highest Level."