Law and Power in the Agency Relationship or Why Boehner’s Blessing Bibi Is Bad for Bargaining

By Allison Beth Hodgkins

There is much to be said about the possible repercussions of Speaker of the House John Boehner’s decision to invite to Israeli Prime Minister Benjamin Netanyahu’s chime in on President Barack Obama’s Iran policy.

However, since most of what could or should be said has already been done so – here, here, here, here, here and here I will limit myself to how the invitation and the response to the speech will make it more difficult for US Secretary of John Kerry to squeeze the Iranians into an acceptable deal.

The rationalization explanation provided by most supporting the speech is concerns over the parameters of the putative deal between the United States, the EU, Russia, China, and Iran over the latter’s nuclear program. Will the deal really curtail Iran’s nuclear ambitions or just defer them for a decade? Will the Iranians simply pocket the eased sanctions, rebuild their economy and wait for the chance to resume their race to the nuclear weapons club?

These are valid questions and any sensible observer of this process is withholding judgment until they are answered.  I will grant Boehner and Bibi one thing – there is a lot at stake for Israel, for American allies in the region, for the stability of the region and the world here. But, let me remind you, we don’t yet have deal. We are still in the midst of negotiating one. In fact, Kerry is on his way to Switzerland to meet the Iranian Foreign Minister as Bibi gets ready to speak.

And if there is one thing certain about this whole sordid sideshow, it’s that it has unquestionably weakened the Secretary’s hand at the negotiating table.

One of the first lessons eager young candidates for a Masters in Law and Diplomacy get at the Fletcher School is about the inherent dilemmas of agency in the process of international negotiations.[1] 99.9% of international negotiations in the world are conducted by agents; diplomats, special envoys, ad-hoc “friends groups,” free-lancing former presidents, national security advisors and, yes, secretaries of state. These individuals or teams of individuals are selected for their skills and experience at the table, reputation and prestige and charged with the responsibility of crafting a deal commensurate with the principal’s stated interests.

However, while it is the agents who make the deals it is the principals who are bound by them. This is why agents are so carefully vetted and managed. It is also why agency can be both a double edged sword at the table.

The first thing a shrewd agent will endeavor to ascertain is the extent of their counterpart’s influence with the principal. Are they a close advisor; a trusted emissary or a minor player? Anyone who has ever negotiated for a better room at a hotel knows you don’t yield until you get the manager on duty. But what if the general manager comes in and takes issue with your deal and tries to add additional charges? Aren’t you likely to become aggravated, heap on additional demands and write a formal complaint?

One of the many reasons that scholars like Fischer and Sheehan argue that Kissinger was so successful in hammering out the ceasefire agreements between Egypt and Israel in 1975 was the perception of his influence with President Nixon. If Kissinger said that a concession would be bolstered with a certain presidential guarantee, everyone believed him. He could credibly extract better terms from the recalcitrant parties because they knew he had influence.

It was also clear at that time that the United States spoke with one voice. Congress had plenty of issues with Nixon, but those battles stopped at the water’s edge. Thus, the parties knew the negotiating dollar stopped and started with Mr. Kissinger.

As an agent of the United States, Kerry’s leverage at the table is only as good as the clout the Iranian’s perceive he has with his principal. If Kerry is perceived as having limited influence over his principal, or perceived as being several links removed from the clasp in the agency chain, his power at the table is dramatically reduced. More candidly, depending on the attendance and the number of standing ovations awarded the Israeli Prime Minister in Tuesday’s speech, the more likely the Iranians are going to balk at further concessions. Why should they put their cards on the table when it is so patently clear that any deal reached with Kerry will have to be renegotiated with a Congress that has all but put up a billboard pledging to reject any deal short of unconditional surrender?

If there is one thing that Boehner, Netanyahu, Obama and Kerry can all agree on it’s that the Iranians aren’t stupid. They can count the number of Democrats skipping the speech and add up the numbers necessary for 2/3rds override.

I can see Kerry squirming in his chair when asked to explain precisely what guarantees the Iranians can expect for making the concessions necessary to forge a mutually credible deal. What ever you think of Bibi or the merits of engaging with the Iranians over their nuclear program, the speech is the rhetorical equivalent of a negotiating power bunker buster.

[1] These lessons are so time honored they pre-date hyperlinks! See Mnookin, R. H., & Susskind, L. E. (Eds.). (1999). Negotiating on behalf of others: Advice to lawyers, business executives, sports agents, diplomats, politicians, and everybody else (Vol. 1). Sage Publications. Salacuse, J. W. (1999). Law and power in agency relationships. Negotiating on Behalf of Others, 157-175.

Correction (3/2/15, 2:30 PM EST): An earlier version of this post stated that Kissinger negotiated a ceasefire following the 1967 War.