What Does “Compromise” Mean?

We all know the word, and it is used in a variety of contexts. A layperson’s definition would relate to one person or side wanting this, and the other side wanting that, and then a compromise would be meeting somewhere in the middle.

This concept works best with concrete numbers. Someone files a legal case alleging injury and fault, and it has some merit. The person filing the suit, usually through the attorney representing him or her, demands a certain figure to settle, and not go to trial and let the judge or jury decide the amount, which can be quite risky. The defendant counters with an offer. There is negotiating. And often there is a settlement, which is felt to be a compromise between the figures.

Obviously, a compromise does not mean “meet at the midpoint of the two figures.’ I have known attorneys, who maybe to impress their client, or maybe just to be irritating, would make a ridiculously high demand, and then “negotiate’ off that. For example, a case may have a reasonable value of $10,000-$40,000. But this attorney demands $175,000, and then when you make your somewhat low, but reasonably negotiable offer of $15,000, then says, “Well, the average here is $95,000 (halfway between the two), and I’ll even come down from that, and settle for $80,000.” No. Obviously, there is infinite upward limit in numbers, and nothing lower than 0, so someone might as well ask for a billion dollars, and say that anything less than that represents a compromise!

On the other side, if there is an attorney who always makes very lowball offers to settle, this does not lower the inherent value of the case, unless in a particular instance, there are serious holes in it. And someone with that reputation is going to end up in trial a lot, because opponents will not bother trying to negotiate with him.

Note that in personal injury cases, or Workers’ Compensation cases, the plaintiff’s attorney is getting paid on contingency, they get a percentage of the settlement or award. The defense attorney is on some kind of hourly fee, or retainer agreement. He gets paid whether there is a deal or not,; although do note that if someone is “churning” his cases, drawing them out by not negotiating in good faith, and trying to pile up legal bills, this will quickly become obvious, and he will lose business. So there are some externally imposed constraints on this.

Negotiating settlements was my favorite part of law. It was somewhat like playing poker. You have to know the strengths and weaknesses of your case, and the psychology of your opposition. But in the field I worked in, one ran into the same attorneys for the other side very often, and so it was important to stay on reasonably amicable terms, so that you could negotiate other cases you would have with them. Sometimes this is easier said than done. And I would have the same clients on various cases, so it was just as much about having a good reputation for representing your client vigorously, but being willing to negotiate with the other side, if you wanted to have a fairly benign experience altogether

This example is all about concrete dollar figures. There are so many other instances in life where what is at stake for one side is not the same as for the other. An always fascinating but very complex example might be in a personal argument with a spouse. What is at stake for either side? Money expenditures? Pride? Avoiding long-term resentment? The possible end of the marriage? Bad feelings? What the other person might do as far as recompense or revenge for not getting their way? That all seems contentious and cold, but it is just meant to show that “compromise” is not just getting to a reasonable dollar figure, as in the legal examples. And any divorce attorney would tell you that what is at stake in their negotiating, is much more psychologically fraught than the money part.

The managing attorney in my first legal job told me that the most difficult negotiating you will ever have to do, is with your own client. This seems obvious in retrospect, but you have to see it in action to really understand it. I have had some cases where my client, or at least the person who was handling that case, simply would not see what I thought I saw, that the settlement I had discussed with opposing counsel was quite reasonable and cost-effective. If the client doesn’t see it that way, then you just go to trial. And you risk a higher award, and then someone down the line might blame that on you, but that is how it goes.

And there were a few cases where the opposing attorney actually wanted me to talk to his client in front of him, because he could not convince him that the proposed settlement was a fair compromise, with risks for either side, if the case went to trial. I was good at that, and honest about it, and I was proud to sometimes settle a case in that way. But sometimes you cannot.

This is all a preamble to the concept of compromise as it relates to the business of passing bills, trying to get the votes on either side.

There are some political figures who are very good at negotiations, at least in the days when there was some fairly good-faith negotiating. The issue, of course, is what is at stake? What happens if your bill doesn’t pass? Is the proverbial “half a loaf” better than “none”? What is half a loaf, in each context? And who is “your client”? Is it the electorate? In the case of Republicans, is it their wealthy donors? That latter does seem to be the case, as Republicans are constantly opposing bills which polls show are very popular with their constituents, but not so with the billionaires the legislators are beholden to, so they block them, or in the case of the 2017 tax bill, ram it through, even with 20% or so national support.

Governmental officials are supposed to be trying to do the work of Americans, as we have a representative democracy. But as we know, many of them are only doing what personally benefits them, or what pleases their wealthy benefactors, and nothing else matters. This makes the concept of “compromise’ a very ambiguous one.

As we unfortunately see, the media perennially seems to demand that Democrats compromise, while Republicans do not have to when they hold power. This makes things a great deal more difficult for Democrats, when the broadcast journalism is constantly about, “Why won’t they compromise”? “Don’t Americans want there to be some sort of deal”? The answer is that, yes, Americans generally like compromise in politics, often without understanding the stakes. And Republicans, buoyed by their media support wall, don’t usually bother to make any reasonable offers, they just wait for the media pressure to force the Democrats to come to them.

Another crucial problem is that while obviously both parties want political power, and to win elections, Republicans are far more willing to have the government collapse, to get their way. The best example of this is when House Republicans during the Clinton and Obama Administrations were willing to have the government shut down, and even to have the debt ceiling not raised, which would have destroyed the full faith and credit of our government. But they really did not care. So it is much harder to negotiate with those who do not mind if the whole system falls apart.

Mitch McConnell is the epitome of Republican intransigence and ‘power at any cost.” He said that the only goal of Republicans was to make Obama a one-term President. He has said that his only goal is “to stop the Biden agenda.” Republican Senator Barasso of Wyoming just said that the goal is to make Biden a “half-term President.”

How do they get away with this stance of never seeking compromise, never giving to a reasonable amount? Because their billionaire donors don’t want them to, so they are protected. They know that this donor money will help keep them in power, and that somehow their constituents do not turn their being upset about how they vote, into election votes against them. They have the broadcast media; they can pour ads on social media; they can scare people by calling the Democrats the party of socialism, of defunding the police; of “cancel culture,’ of “critical race theory,’ whatever they can come up with.

So they act as if they are poker players who are being totally funded by rich backers, so that they have no risk. This simile breaks down in that backers want their players to win. But here “winning” is not passing bills and making law, it is obstructing all Democratic bills. If McConnell could legally call the Senate into recess until 2023, he would do that. He doesn’t want to legislate, he doesn’t want to make deals; he wants to make sure that none are made. And the filibuster was invented and enhanced for just this purpose.

So Biden has to either accept a ‘compromise’ infrastructure bill, which is very much in Republicans’ favor, or try to pass the bill through reconciliation, with the media fulminating about how much it would cost, how it would blow up the deficit. On voting rights, Republicans will filibuster any bill, they would not dare let a bill helping people to be able to vote, get through. They might “compromise” on police reform, because most voters want that, and the big donors don’t care much; so it looks as if they got something done, giving them cover for not doing anything else.

Republicans view this legislative session as an unpleasant period that they have to get through, by making speeches, doing stunts on the floor, reading newspapers or playing with their cell phones; until they can get to the 2022 elections. They have to act as if they are doing something, when they really are not, not in terms of getting legislation passed

Compare this to a shorthanded hockey team on the opponents’ power play, just running out the time by knocking the puck down the ice to the other end. That is a legitimate strategy in that sport, not in government, but Republicans do not believe in the federal government. They are always excited about passing multiple bills on the state level, where there is no filibuster, and “might makes right’ for them.

Compromise is a word with a favorable connotation in most cases. It implies each side giving a little. But the word loses its meaning when used as a propaganda term, which virtually everything in our political system is. What is the “long game” for Democrats here? Win a majority in the Senate of 60 votes? The way the system is set up, there are so many small Deep Red states, that getting to 60 is virtually impossible. And of course without H.R.1, it will be very difficult to win any elections, this making it “game over,” if Republicans run out the clock and make sure that no such bill passes.

This is where we so much want the Democrats to have a grand strategy. Making forceful speeches will not do any good. Alerting the constituents to the Republicans complete refusal to override draconian state vote suppression laws, will not help if the constituents cannot vote because of them.

It is almost laughable, but actually disgraceful, not that they care, that Republican ‘legislators” go back to their voters, and take credit for the Relief Bill, when all of them voted against it. They plan to do that with the infrastructure bill. Their man concern there is making sure that nothing passes regarding climate change, as their donors are already making their plans to go to Mars, when the temperatures reach 120 degrees here; or maybe they will make deals with power companies so that all of the power goes to their houses, which is rather what happened in Texas a few months ago.

“Compromise,” with these backdrops, almost becomes a word you are sick of hearing, because it turns into an electioneering slogan. One wouldn’t be surprised to see the Republicans calling themselves “the party of compromise,” while the Democrats are “the party of radical demands.” It’s just words after all. And as Humpty Dumpty said in a famous novel, “When I use a word, it means just what I choose it to mean.”