Building Legislative Consensus

BUILDING LEGISLATIVE CONSENSUS

A longer version of the following article appeared in the October, 1999, issue of State Government News under the title "Breakthrough Bargaining". It was co-authored by Sol Erdman, president of Democracy 2000, and Lawrence Susskind, director of the MIT-Harvard Public Disputes Program.

Few Americans appreciate the tough job lawmakers have trying to resolve complex issues on which there is sharp disagreement. No wonder legislatures often deadlock.

But a process used elsewhere in government can help legislators resolve their toughest disputes. Many state agencies, when stuck on an issue, bring together representatives for the groups most affected. These representatives often negotiate tenaciously -- until they find a solution all sides can accept. A stymied legislature can take a similar route by forming a task force on which each member is chosen by a bloc of lawmakers as their spokesperson on that issue.

To lawmakers at the 1998 Bowhay Institute for Legislative Leadership Development, this approach made sense. Kansas Rep. Shari Weber said it evoked her experience on a task force that developed consensus on higher education. Illinois Sen. Terry Link said the process would help legislators do the job "the people elect us to do."

Just as interest group representatives are often motivated to work out their differences, a task force that organizes a legislature into cohesive groups can resolve tough issues when traditional methods fail.

Consider Oregon's experience. In 1994, the Oregon Department of Transportation asked the state Legislature to lower environmental hurdles for improving rural roads. The Department of Land Conservation protested. The Legislature told the two agencies to work it out. Unable to do so on their own, the agencies met with representatives for relevant groups, including the state's planning directors, Oregon's Farm Bureau, environmentalists and advocates for economic growth. In five sessions, these representatives reached consensus on a rule that the agencies accepted. The Oregon Legislature then passed a bill mandating similar councils to address other land use issues.

In 1983, the Texas Legislature established a council representing relevant groups to help site and regulate waste disposal facilities. The council has resolved many heated issues over the years and is now developing procedures for deciding when localities, rather than the state, should have jurisdiction.

A Clear Constituency

In these situations, legislatures and agencies were stymied, yet representatives for affected interest groups resolved the issue. How?

They had an easier job. Each interest group representative had a clear constituency with a clear agenda. The most practical way to move that agenda forward was to negotiate an agreement with representatives for the other groups involved. The representatives also were able to explain to their own groups how the agreement would serve their groups' interests.

Lawmakers face a harder task. Each one speaks for a district of thousands of voters with widely differing opinions. Legislators also owe loyalty to party leaders, to colleagues who support them on key measures and to election supporters. These constituencies often disagree, so a lawmaker's stand on a controversial issue will draw fire from many directions. No wonder legislatures often reach an impasse.

Yet, a legislature stalled on a vital issue can break the deadlock by forming a task force on which each member is chosen by a bloc of colleagues to speak for them on that issue. So, to get on the task force, lawmakers need to convince their colleagues that they are the best ones to advance their colleagues' agendas.

Each task force member will then face pressure to deliver. The only way to move an agenda forward is to negotiate some agreement with the rest of the task force. Outside interest groups will of course clamor for their pet solutions, but this task force will have organized the legislature itself into coherent constituencies, so it will be in the best position to figure out what measures will best satisfy the legislature's many factions and the outside groups.

This task force has an edge over lawmakers who try to negotiate a solution on their own initiative -- because most legislators may feel no allegiance to decisions made by self-appointed, albeit well-intended, colleagues. A task force chosen by all legislators is in a better position to win wide support for a solution.

Task forces also have advantages over traditional committees appointed by party leaders, because it is often is unclear whether committee members speak for their own agendas, party leaders, voters, colleagues or interest groups. Each of these pulls committee members in different directions. So any tack taken on a hard issue can draw criticism. That is hardly conducive to negotiation. In the end, it is tempting to blame the opposing party for policy-making failures. And even if a committee overcomes all these obstacles to reach agreement, some lawmakers not on the committee -- having had little voice in drafting the bill -- may work to defeat it on the floor.

Incentives to negotiate

But, on a task force, every lawmaker has a spokesperson, giving the whole legislature a stake in the outcome. Every task force member also has a clear constituency of colleagues, and can best raise his or her standing with them by negotiating a workable agreement.

Still, why would legislators want to deviate from existing procedures? Because some unresolved issues, such as education reform, can hurt incumbents. A task force, at worst, will leave lawmakers back where they started, and if it succeeds, they all will look like heroes.

What about party leaders? While this process gives them less control than traditional procedures, it can help leaders resolve issues on which the legislature is stymied, winning leaders both public approval and higher standing in their own party. Link of Illinois said, "Doing a good job of governing is the best politics in the world."

If leaders decide to form a task force, how do they identify the right blocs and right spokespeople? After all, every issue generates different factions. And, for a proposal to win wide support, each faction has to have confidence in its own spokesperson.

Leaders can ask every lawmaker who wants a seat on the task force to post a position statement. Every legislator can then pick a spokesperson. In effect, the factions form around those who want to play the most active roles. If any faction feels that no candidate speaks for them, its members have to get someone in their ranks to step forward.

To keep the task force to a manageable size, candidates with few backers can be taken out of the running. Their supporters then can choose a spokesperson with a larger following.

Legislative leaders can pick the chair or leave it up to the task force. Either way, it is more likely to succeed if all members see the chair as even-handed. So, someone not on the task force may be the best choice.

These task forces are no panacea, but since they give every lawmaker a spokesperson, all legislators get strong incentives to seek a win-win agreement. Lawmakers and their leaders benefit. So does the public.

For more information or help in forming a Consensus Building Task Force, send us an email at dem2000@igc.org