How Any Legislature Can Reach Consensus

An open letter to city and state lawmakers:

You have a tough job. You represent many thousands of people whose views on important issues can range all over the lot. So any decision you make on a controversial subject can get you in trouble with large blocs of voters. What’s more, at each election, a challenger from the other party may belittle many of your decisions, perhaps even question your character. So it’s understandable if you and your ideological allies often butt heads with lawmakers from the opposing party.

Even so, there may be times when an issue is so critical to your community or your state that you and your colleagues want to resolve it in a way that all sides can support. We believe there’s a process that can help.

To give you a picture of this process, we want to describe two episodes that you may recall. The first one concerns the Superfund, a program to clean up the country’s hazardous waste sites that provoked many lawsuits between the government and various corporations over who should pay for the cleanups. By some estimates, the opposing sides spent three times as much on litigation as they spent on cleaning up the designated sites. Several congressional committees looked for ways to rewrite the Superfund law to avoid these lawsuits, but without success.

So, leading environmentalists, chief executives from the chemical industry, the heads of several labor unions, and various state officials met to tackle the problem. The members of this group, called the National Commission on Superfund (NCS), had been adversaries for years. Yet they negotiated a detailed proposal that every relevant constituency endorsed. Commission member Robert Burt, CEO of the FMC Corporation, persuaded the Chemical Manufacturers Association to support the NCS measure. Meanwhile, environmental leaders John H. Adams and Fred Krupp won backing from the environmental community. And the state officials won the endorsement of the appropriate regulatory agencies.

The second episode drew wider publicity. In June of 1997, representatives for attorneys general from 40 states, the tobacco companies, and major anti-smoking groups ─ all fierce partisans for their own interests ─ agreed unanimously on a measure to curb teenage smoking. Again, all of their constituencies supported the proposal, which was a big improvement over the status quo. Yet Congress deadlocked over the very same issue.

Why did these representatives for antagonistic interests reach unanimous agreement when lawmakers could not come close? As we see it, the representatives outside the legislature had a much easier job. Each one spoke for a group of constituents with an agreed-upon agenda. And each representative knew that to advance his or her group’s agenda, he would need to reach an agreement with their long-standing adversaries. Each representative could then explain to everyone in his or her camp exactly how that agreement with their long-time foes was the most realistic way to advance their own interests.

Your situation is much harder. Your constituents have a wide range of opinions on every issue you have to deal with. On top of that, you also owe loyalty to your party leaders. And you owe allegiance to colleagues whose support you need on measures you care deeply about. You are also indebted to key backers who have helped you win elections. All of these are your constituencies, and they can disagree on every topic under the sun.

So, any action you take on a controversial issue is bound to draw fire from many directions. Any person in this situation would find it daunting. It's practically a no-win position. No wonder your legislature often deadlocks over hard issues. Each lawmaker can then at least say to his or her various constituencies that he tried to resolve the issue sensibly, but the other side blocked those efforts.

What can you do about this? If your legislature is struggling with a controversial issue that you feel you must resolve, here’s what we propose: Each bloc of lawmakers who share an agenda on that issue would pick a spokesperson.

Each of these representatives would have to accept that his or her main responsibility on this one issue would be to those colleagues who had picked him. All the other constituencies that he or she owed loyalty to would not go away, but on this subject his prime constituency would be his or her allies in the legislature.

These representatives would constitute a special task force whose mission was to strive for consensus on the issue.

Here’s why they’d have a good chance to succeed: Each member of this task force would have been chosen by a group of colleagues to advance their agenda. He could not make any progress on that agenda by simply fighting with other task force members. The only way to serve his colleagues’ agenda would be to negotiate an agreement with other camps. Each task force member could then explain to his allies in detail how that agreement was the most practical way to advance their own cause.

Furthermore, the closer this task force came to consensus, the higher the odds that the legislature would pass the measure intact. Each task force member would therefore want to reach consensus. Because that way, the provisions he and his allies cared about – the provisions he had negotiated – would actually become law.

When might you try this? Perhaps when the public was demanding progress on a critical issue on which your legislature seemed hopelessly divided. The budget? The most sensible tax policy at a time when revenues are plunging? If you deadlock on these issues, every lawmaker may take heat from his or her various constituencies. But if you make major headway on these issues, all of you might win a level of public trust that you could not achieve by other means.

How exactly could you set up such a task force, that is identify the right blocs and the right spokespeople? After all, every issue generates very different factions. And it’s often unclear who exactly is in each faction.

Here’s what we propose: Any of your colleagues who wanted a seat on this task force would be asked to draft a position statement on the issue at hand. Those position statements would be circulated throughout the legislature.

If some lawmakers feel that none of the statements reflect their concerns, they could be asked to become candidates for the task force or to find like-minded colleagues to step forward as candidates. Those additional candidates would draft statements of their priorities that would be circulated throughout the legislature.

Every lawmaker would then pick his or her spokesperson. In effect, the factions would form around the legislators who most wanted to tackle the issue.

To keep the task force to a manageable size, the candidate who drew the fewest backers could be asked to drop out. He and each of his backers could be asked to choose a candidate with a larger following. This process would be repeated until each remaining candidate had a minimum threshold of support, say five to ten percent of the legislature.

Each of your colleagues would thereby end up with a spokesperson whose views were close to his or her own. Everyone on the task force would, in turn, be representing colleagues who shared his or her policy agenda.

Between task force meetings, each member could caucus with all the lawmakers he or she represented to get feedback and/or build support for tentative proposals.

If the task force did generate a proposal, it would still be subject to an up-or-down vote by the whole legislature. But if the task force had done its job well, the measure would likely pass by a wide margin.

Whenever we present this idea, people ask a variety of questions. So here are our answers to the questions we hear most often:

Why would this approach produce better results than assigning the issue to a select committee appointed by party leaders?

On this kind of task force, each bloc of lawmakers would likely choose the one person they most trusted to speak for them on the issue in question. So if the task force did strike an agreement, each member would be in the best position to win support for the measure from those legislators who had chosen him. By contrast, party leaders cannot know in advance which lawmakers will be most likely to win wide support for a controversial measure throughout the legislature.

Furthermore, the task force would be representing all factions of the legislature. So the resulting bill would likely satisfy more competing interests than a bill drafted by a select committee or bipartisan commission. Each lawmaker would therefore be more likely to win support for the measure from his or her various constituencies: voters, campaign contributors, relevant interest groups and so on.

How would the task force chair be chosen?

For the members to negotiate in earnest, they would need to believe that the chair wasn’t intent on pushing them in a pre-ordained direction. So, we recommend that a neutral party run the meetings, either from within the legislature or a professional mediator from outside.

Why would party leaders want to deviate from well-established procedures to try this approach?

Because some issues stir up a great deal of public anger that reflects badly on party leaders. Whereas, if party leaders use this process, the worst that can happen is that they end up back where they started. But if the process succeeds, if the legislature resolves a problem that few people thought it could, party leaders would share in the glory.

Party leaders might especially want to use these task forces in two situations: when they had tried to impose their will and failed, or when the subject was so controversial that they were reluctant to impose their will. On education reform, for instance, it might be politically dangerous for either party to force a bill through a legislature over strong opposition. In fact, when party leaders face a hard political decision, the safest approach may be to say: “Every faction of this legislature had a hand in crafting the solution. It may be imperfect, but given the many conflicting agendas on this issue, any solution will be imperfect. This bill reconciles our conflicts as well as humanly possible.”

A special task force could also be the ideal way out when party leaders had tried to impose their will without success. Instead of a leader futilely trying to strong-arm a party's various factions, each member of the task force would be in a better position to get his or her own faction to go along with a difficult measure. Each spokesperson could readily say to his or her supporters: "You chose me to represent you. And we're one just bloc of many. So, the outcome we want can't be had. But by negotiating I can get a key piece of our agenda. Here's why that's the best we can realistically do . . . "

By the procedure you’ve proposed, every lawmaker would have to publicly disclose who he or she preferred as a spokesperson on this task force. But might some lawmakers be reluctant to acknowledge their true preferences? They might fear they will offend some of their colleagues.

That is a possibility. The solution would be for each lawmaker to fill out a secret ballot on which he or she would mark which candidate for the task force was his first choice, second choice, third choice and so on. When the ballots were counted, the lowest drawing candidates would be dropped from contention one by one until each remaining candidate had the number of backers needed to win a seat.

In that event, however, when the election was over, each task force member would have to know whom he or she was speaking for, so he could stay in contact with them as the task force moved forward. That means, when the election was over, each lawmaker would have to identify which task force member he or she preferred as his representative.

What kind of people would wind up on this task force?

All that anyone can safely predict is that if a group of lawmakers chose someone particularly strident, that trait wouldn't help advance their agenda. Any lawmakers who wanted their point of view to actually have an impact on legislation would have to choose a representative who both articulated their position well and negotiated well.

How would the task force assemble a staff?

Lawmakers who won seats would probably be knowledgeable about the issue, with a staff to match. So, the members could lend some of their own staff. They could also negotiate with standing committees to borrow staff. In some cases, the task force might have to hire some staff members with appropriate expertise from outside the legislature.

What about factions that, for ideological reasons, don't want any deal?

The task force members most eager to resolve the issue could turn to the most recalcitrant members and say: “There has to be something your backers want that would get them to support a bill. Tell us what that is and maybe we can work something out.” If that approach fails, that shouldn’t stop the rest of the task force from trying to develop a solution that as many factions as possible can accept.

Each member of the task force is likely to have a different number of backers in the legislature. So, when the task force votes on a proposal, should each member have the same voting power?

We recommend that the task force operate by consensus, and avoid up-or-down votes. If that proves unworkable, then to be fair, each member should have a number of votes equal to the number of lawmakers whom he or she represents. If that proves too controversial, each member could have one vote. As we see it, this issue is secondary to the task force’s main purpose: to craft a proposal that the legislature can overwhelmingly endorse.

What if one chamber of the legislature uses this process and the other chamber doesn't?

If a task force in one chamber can reach consensus and win that chamber's overwhelming support for the measure, the bill would presumably satisfy the major conflicts on the issue at hand. Faced with a bill that could satisfy so many demands, the other chamber might find it politically difficult to obstruct the measure.

If you'd like more information on this process, please email us.