The power of privacy in legislative negotiations

Academics and commentators often bemoan legislative gridlock. The public is similarly frustrated by Congress’ failure to solve problems. For instance, in a 2016 Gallup poll, just 13 percent of Americans thought our national legislature was doing an excellent or good job, and almost half of those who said it was doing a poor job cited inaction as the top reason for their view. Polarization, one of the main drivers of gridlock, is unlikely to change anytime soon. So, what can be done to improve the prospects for legislative action?

One promising solution, even in this polarized context, is allowing legislators more room to negotiate compromise solutions outside of the public eye. In research for our forthcoming book, Rejecting Compromise: Legislators’ Fear of Primary Voters (2020), we found that allowing for more private negotiations among legislators can increase the ability to reach compromises between the parties. 

Privacy can be effective because one of the obstacles to compromise is that legislators believe that primary voters will punish legislators who support compromise. This fear can prevent legislators from engaging in serious negotiations because they do not want to appear as though they are willing to capitulate on issues that primary voters care about. Yet if they are not willing to seriously engage in these discussions, they are unlikely to reach a compromise deal, leaving many issues stuck in gridlock. 

Private Negotiations Increase Compromise

We tested whether private negotiations can lead to more compromise in a 2017 survey of state legislators at the National Conference of State Legislatures’ Summit in Boston; 205 legislators participated.  In the survey, we gave legislators a vignette that focused on negotiations over a common state budget item, telling some of them that they’d bargain in a public meeting and others that they’d bargain in a private meeting.

We found that legislators were more likely to believe that a compromise would be reached if they negotiated in private.  However, we also found that legislators said they would be less likely to meet if the negotiations were held in private. 

Figure 1. Private Negotiations are More Likely to Yield Compromise Solutions

These results are consistent with the electoral incentives shaping legislators’ expectations about bargaining.  On one hand, private meetings can insulate legislators from the voters who would punish them for compromising, allowing them to consider potential compromises between the parties that could achieve legislative success. 

On the other hand, public meetings can be more attractive because they provide an opportunity to advertise to voters, claim credit for their achievements, build trust with voters, and win votes.  Private negotiations may also risk the appearance that legislators are hiding. As former Senators Trent Lott and Tom Daschle wrote “It’s difficult to explain to those who elected you that you don’t want them to see what you’re up to.”

Indeed, voters favor public meetings. In a December 2017 survey of the public, we found that 79 percent of respondents preferred that legislators meet to work out compromises in public meetings. Though they might be more successful, legislators know that voters don’t like private negotiations and so they avoid them.

Increasing public acceptance of private negotiations

Increasing public acceptance of private negotiations may get legislators out of this bind.  In June 2019 we conducted a large-scale survey and asked voters how they would respond to negotiations between Republicans and Democrats.  We varied whether the legislator supported a successful compromise or whether their opposition blocked the compromise from passing, whether the negotiation occurred in public or in private, and whether the decision over the negotiation format was determined by Democrats, Republicans, or a bipartisan group.

Two major findings emerged from the survey. First, voters punish legislators who block compromises and reward those who pass compromise solutions. In short, legislators should strive for compromise because their voters reward them for it.

Second, private negotiations hurt the evaluation of legislators but it matters who is proposing the negotiations.  Controlling for the outcome, voters only punish if the decision to negotiate in private came from the other side.  If the decision to negotiate in private was a bipartisan decision, voters do not punish the legislator.  So, legislators can avoid punishment by making bipartisan announcements of private negotiations and entering negotiations with a sincere intent to make them successful.

Private Negotiations vs. Private Lawmaking

Holding more private negotiations between the two parties may enable legislators to more frequently identify and agree on compromise solutions.  For example, chamber leaders might schedule regular closed-door bipartisan legislative conferences off Capitol Hill.

However, private negotiations are not without their downsides and legislators may be wary of the negative perceptions of working behind closed doors. 

Private negotiation need not mean private lawmaking. Democratic accountability requires that voters know the outcome of negotiations and whether their legislator supported that outcome. We do not argue for or recommend secrecy.

Instead, we must separate the process of getting to compromise from conveying the outcome of the policy agreement. After private negotiations, voters should be allowed to know the outcome of the negotiations and whether their legislator supported the compromise.

Private negotiations can insulate the process from watchful voters who may want legislators to stand on principle rather than consider pragmatic concessions. This can reduce legislators’ fear of retribution for considering a compromise, while keeping the outcome and legislators’ voting record public.

Walking this line can allow legislators to negotiate compromise solutions in private and take public credit for supporting the compromise policies that many voters want, helping to resolve legislative gridlock.

Sarah Anderson (@Prof_SEANderson) is an associate professor of environmental politics at the University of California Santa Barbara. Daniel Butler is a professor of political science at University of California San Diego. Laurel Harbridge-Yong is an associate professor of political science and a faculty fellow at the Institute for Policy Research (@IPRatNU) at Northwestern University.