Democrats Continue to Allow the Baseline Presumptions to be Set By Republicans
by Neil H. Buchanan
Imagine that you are selling a car, or a house, or anything that requires face-to-face negotiations. Your asking price is public knowledge, but you also have an "I hope I can at least get this much" price as well as an "I hope I don't have to go that low, but I will if necessary" price. You receive interest in your item from multiple parties, and you begin to negotiate with one of the possible buyers. You reduce your price in increments and the other side comes up, but ultimately, the buyer never reaches even your squeal point. Negotiations break off, and the potential buyer walks away.
What do you do? It is possible, under some circumstances, that you will lower your asking price. It is also possible, however, that you will simply go back into the market with your original price and look for the next buyer. What you would not do is to set your price at the last amount that the buyer who walked away offered you. (Why did you turn it down?) Indeed, you almost certainly would not even reset the asking price at your last concession to that buyer. After all, this is a fresh start.
You would not do that unless you are desperate, or unless you believe that you truly do not deserve the happiness that would come from being able to get what you thought you wanted. Again, there are times when panic sets in, sometimes for good reason (an external deadline having become binding, for example), and you will reluctantly settle for less. But that should be based on actual facts, not your presumption that you are going to lose.
Welcome to the Democratic Party that I have known for my entire adult life. They negotiate against themselves, then they negotiate overly generously with Republicans, then Republicans snub them, and finally Democrats either accept even less or give up entirely. And when negotiations do begin again, the Democrats take their own concessions as a new baseline, rather than returning to their initial position.
I bring this up now only in part because of the negotiations over the Biden infrastructure plan. The phenomenon is so ubiquitous that it is almost a cliche, and the press simply assumes that Democrats will (and should) always give up and lower their expectations. Let us consider some examples of direct negotiations and logically similar changes in presumptions that disadvantage Democrats.
There is, at this point, not much to be said about Biden's infrastructure bill, because we are still in the process of watching negotiations play out. Even so, the early signs are not good. Biden announced what was truly a bare-minimum package of public investments (relative to the long-neglected needs that he wants to address). He started, that is, at the level that is roughly where he should have been willing to end up at a bare minimum.
Politicians and pundits on all sides now causally describe Biden's proposal as a $2.25 trillion plan. That this amount of money would be spent over the course of eight years is never mentioned, and certainly nobody is noting that this package would add merely 5 or 6 percent to what the federal budget would have been in a non-COVID world. (I make the non-COVID adjustment because COVID-affected budgets are huge, which would make Biden's proposal look even smaller. It is therefore important not to use pandemic-era numbers, even though doing so would make my point look even stronger.)
But I digress. The point is that the Republicans (actually, the subset of so-called reasonable Republicans who are willing even to be seen pretending to negotiate at all) basically said no. After dishonestly insisting that infrastructure only means roads and bridges (and broadband for their rural Republican constituents, though they are even low-balling that number), they came up with a number that would not even meet the need for long-neglected repairs that is its own crisis. Biden's response: OK, I'll drop to $1.7 trillion. Republicans immediately rejected that amount.
Again, we do not know where this will end. I will, however, offer the following prediction: If Republicans completely walk away and Democrats are left to pass their plan entirely on party-line votes (by sidestepping the filibuster through the so-called reconciliation process), Democrats will start at their last, lowest number -- at best.
Why would they do that? After all, in my generic description of negotiating at the beginning of this column, the failure of a negotiation with one potential buyer should only result in a panicked response if for some reason there are no other buyers. But under reconciliation, there are buyers: the Democrats themselves. They can get what they want by getting what they want.
This is where one would usually blame Senator Joe Manchin, who usually deserves plenty of blame in these things. It is possible that he does not actually support public investment, or it is possible that he is so committed to bipartisanship that he would view it as rude for Democrats to say, "We can get what we wanted without you." Who knows? The fact is, however, that this is not a Manchin-specific phenomenon.
I should stipulate, of course, that the Democrats surprised everyone earlier this year when they passed Biden's COVID relief package almost intact. The biggest disappointment was that they dropped the $15/hour minimum wage -- another situation in which no one bothered to mention the long phase-in period in the proposal, acting instead as if the change from $7.25 to $15.00 would have happened overnight -- but otherwise, there was very little change from the original proposal. So Democrats are capable of hearing Republicans say no and then doing what they (the Democrats) think is right.
Again, however, that was the exception. One of the most memorable examples of Democrats making needless concessions is the Family and Medical Leave Act of 1993 (FMLA), which Bill Clinton signed in his third week in office. That bill had gone through arduous negotiations during the first Bush Administration, with Democrats allowing it to be watered down again and again. At one point, the Republicans' lead negotiator, Senator Orrin Hatch, announced that he had finally reached an agreement with Democrats, only to have the White House humiliate him by rejecting the deal. Democrats then negotiated some more, making additional concessions, but Bush continued to say no.
One would think that Democrats, after winning the election in 1992 and installing a shiny new President in the Oval Office, would have said, "Well, now we can get what we should have gotten in the first place." Not only did they not go back to their initial offer, however; they did not even go back to the point where Hatch had said yes. Clinton decided that this would look icky, so they passed the last, worst version of the bill. Manchin is thus not a new phenomenon, and the Democrats' norm (since even before Clinton) has been to give and give, even when they can do better for themselves. (See also Barack Obama's capitulations when the Bush tax cuts were set to expire.)
As I noted above, this failure to reset is not limited to negotiations over particular pieces of legislation. Or at least there are situations that feel very analogous to this kind of resetting of expectations. Consider a few examples.
The editors of The New York Times recently joined in the destructive chorus of left-ish voices telling Democrats not to repeal Republicans' limitation on the tax deduction for state and local taxes (also known as SALT). Why? Because repealing the limit would be regressive, with only upper-income people benefiting from an increase or elimination of the current $10,000 cap. That is true as far as it goes, but it most certainly is not the point. That cap has only existed since 2018, part of the Republicans' tax giveaway to their donors at the end of 2017.
Republicans at the time needed to find some funding to lower the overall revenue loss for their regressive mess, and someone had the brilliant idea of sticking it to blue states by making their higher-income taxpayers pay more. There was no intent on Republicans' part to be somewhat progressive. They just wanted to make it more difficult for blue states, which tend to have higher taxes because they tend to offer not-quite-as-meager public services as red states, to continue to fund themselves. Capping SALT was a direct attempt -- a successful one -- to pass a facially neutral tax provision that predictably and intentionally harmed states run mostly by Democrats.
Now, however, the baseline has changed, even for the editors of The Times. Just as Clinton and Obama acted as if the way things were at that very moment could not be reversed or reset, people who now defend the SALT cap act as if there is something normal about the current state of the law. If they wanted to make sure that richer people in every state paid more in federal income taxes, they could make that happen. Instead, they act as if what Republicans did was a good thing, failing to notice how it affected different states based on their political leanings -- a move that Professor Dorf at the time described as unconstitutional (but probably non-justiciable). Hey, late 2017 is so five minutes ago.
Or consider a point that I mentioned in passing in a recent column. In 2020, Donald Trump's margin of victory in Florida was smaller than the number of disenfranchised ex-felons who should have been allowed to vote. That is, Florida's enfranchised voters had overwhelmingly passed a state-level amendment ordering their government to catch up with the rest of the country and allow people who have completed their sentences to vote, but Florida's Republicans responded by passing what amounted to a poll tax, and their power grab was given the A-OK by a Trump-stacked federal circuit court.
We do not know how many of those men and women would have registered to vote, how many would have voted, or whom they would have favored, but Florida's Republicans had a pretty good idea that having those people vote would be bad for Florida's Republicans and Trump. Now, even with people talking about Florida's new laws designed to suppress votes, many commentators (including me, I think) have said in essence: "Why are Florida's Republicans bothering, given that their state is trending red?" It is trending red because of a long list of non-neutral Republican interventions, only one of which is the new poll tax. Yet we act as if the baseline against which "unfair" should be measured is the status quo immediately ante.
This is also true of other voter suppression tactics. Only a few people have bothered to note that Georgia's infamous prohibition on giving water to voters standing in long lines (copied by other states' Republicans) only matters because we accept that voters -- but only voters in certain neighborhoods -- will of course be standing in line for hours. Similarly, what now-Governor Brian Kemp of Georgia did as Secretary of State to steal his election is now part of the baseline, as is the Ohio voter purge that the Supreme Court's majority blessed in 2018.
And as the headline on an article by Sanya Mansoor in Time earlier this month put it: "Texas Was Already One of the Hardest States to Vote in. It May Get Even Harder." Democrats constantly tear their hair out because they continue to be told that Texas's demographics will inevitably turn the state blue. When they try to explain why that never happens, however, they blame themselves for presuming that Latinx voters are monolithic, or because the state's Democrats did not work hard enough, or some other excuse that simply misses the reality that Republicans have locked down Texas, and it is getting worse, no matter the population trends.
Again, I want to emphasize that this is obviously not a direct equivalent to negotiating over the price of a house, or even to negotiating over the contents of legislation. It is, however, similar in that Democrats are at all times acting as though the current normal is truly normal and cannot be otherwise.
A big part of winning comes from having categorically ruled out what one's opponent wants. Democrats, commentators, and even supposedly neutral observers allow Republicans to set the rules of the game, failing to reclaim ground that has only recently been lost -- and not even trying to remind other people (and themselves) that that ground was wrongly lost in the first place. It is a particularly extreme form of the adage that those who forget history will be doomed to repeat it.