Carey Parker Oral History (09/2008)

This is an interview with Carey Parker in the Russell Senate Office Building. Carey and I have talked for a while about the interview, about the Senator, and about his work. We will have, I hope, a series of interviews, because his work with the Senator has covered so many years. There is a lot to be covered. We thought that we might start by talking about the early days: when he joined Senator Kennedy’s staff in 1969, how that came about, and what he was principally involved with at the outset. If we have time today, we can continue up to the end of the [Jimmy] Carter years. Let’s start at the beginning.

I joined the office at the end of January, beginning of February, in 1969. For two or three years before that I had been a special assistant in the Criminal Division at the Department of Justice, working for the head of the Criminal Division, Fred Vinson, the son of the former Chief Justice. In the course of my work for him in the late ’60s, I had worked quite a bit on President [Lyndon] Johnson’s crime legislation, and I had gotten to know staff on both the House and the Senate sides of the Capitol. Senator Kennedy was a member of the Judiciary Committee, and I got to know his staff person on judiciary issues, Jim Flug, quite well as the legislation was going through the Senate. 

I also was assigned by Fred Vinson to work with Warren Christopher, who was then the Deputy Attorney General, on President [Lyndon B.] Johnson’s nomination of Abe Fortas in 1968 to be Chief Justice. At the time, Fortas was an Associate Justice, but his nomination to be Chief Justice was highly controversial and was blocked by a Republican filibuster. I got to know members of the Senate Judiciary Committee staff quite well during that debate.

After the ’68 election, when [Richard] Nixon became President, the political appointees and their staff assistants had to leave the Justice Department. I was looking for new work, and I got a phone call from Jim Flug asking if I would be interested in coming up to Capitol Hill. Jim had been one of Senator Kennedy’s two legislative assistants, and he was moving over to the Judiciary Committee staff to become the chief counsel on a subcommittee that Senator Kennedy had just become the chairman of, the Administrative Practice and Procedure Subcommittee. I was very interested in the job, one thing led to another, and I started work shortly after the inauguration of President Nixon. I came to Capitol Hill to work for Senator Kennedy.

Were you interviewed by the Senator?

Yes, I met with him briefly.

Talk about that. Had you met him?

No, I had seen him, and I had worked with his staff. I had been in some strategy meetings with him, but those were large meetings. I didn’t know him personally. I knew Flug quite well, and I had also interviewed with David Burke, who was Senator Kennedy’s administrative assistant at the time. Those were the two people I talked with principally. Basically they had me come in and meet with the Senator very briefly, maybe for 10 or 15 minutes, something like that, and we had a very pleasant conversation. I could immediately sense his warm personality. He certainly seemed eager to have me come on board after what he’d heard from Dave and Jim. I took that as a good sign, and said I was very much looking forward to the opportunity.

Did you ask him any questions?

No. Once I moved in, there was one other legislative assistant who was senior to me. At that time, Senators had two legislative assistants and however many committee assistants they needed, depending on their seniority. Kennedy’s office had two. Dun Gifford was serving as Kennedy’s chief legislative assistant then, and I was the other legislative assistant for a year. Dun left in 1970 to go back to Massachusetts for other pursuits, and I became, by default, Senator Kennedy’s principal legislative assistant, which I’ve continued to be over the years.

Was Paul Kirk there when you came?

Paul Kirk arrived about the same time I did. Senator Kennedy had just been elected by his fellow Democratic Senators to be the assistant majority leader of the Senate. In order to staff that position, Senator Kennedy hired two people: one was Paul Kirk, and the other was Wayne Owens. I think that Paul arrived in the office about a month after I did, at the beginning of 1969. We were both getting acclimated.

So the Senator was elected to be the whip in January of ’69.

Yes.

And he had won over Russell Long, who was the incumbent.

Yes, Kennedy had just become the whip, as they called it, the assistant majority leader. I was beginning to figure out what the responsibilities of the office were. I had very little to do with the politics of the office, and that’s pretty much what the whip’s office was responsible for in those days. The staff worked very closely together, and I attended some of those meetings, but overall I had relatively little to do with that. 

I spent most of my time working on legislation. I worked fairly closely with Paul Kirk, Dave Burke, and Dun Gifford, depending on different aspects of the issues. Basically, I was responsible for picking up the issues that were not being covered particularly well at the time, because the Senator’s previous staff had been interested in other issues. Flug took most of the Judiciary Committee issues over to Judiciary. The big issue that was outstanding was health care, and that’s one of the principal issues I started on when I arrived.

You arrived at the beginning of the final year of the Senator’s first full term, I think.

It was the final two years. He was up for reelection again in 1970. He had just been elected to one of the leadership positions in the Senate. There was obviously, at that time, a lot of discussion about Senator Kennedy being the Democratic candidate in 1972. After the tragedy of Robert Kennedy in the 1968 primaries, there had even been talk about Senator Kennedy being on the ticket in 1968 as the nominee for Vice President. He didn’t want to do that. the time had been too traumatic, and he ruled it out. 

But from 1969 through, 1985, for the next 16 years Senator Kennedy was always being talked about as a possible Presidential candidate. Before each election, until 1980, something came up that persuaded him that it wasn’t the year. He took himself out in ’84, and made a fundamental decision at the beginning of 1985 that he would never be a Presidential candidate again. He took himself out of the 1988 Presidential race and any further races. In many ways, I think his career in the Senate was already an extraordinary one, but it became even more extraordinary once everyone got used to the fact that anything Senator Kennedy did was not done with one eye on the White House. Rather, he was genuinely involved in the issues.

When you came aboard, there was a feeling out there that he was the next one.

Yes, no question about it. That was always the first question. If it’s not Kennedy, who might it be? Everything was pointing toward that. 

At the end of 1984, he had made a major trip to South Africa. He had been very involved in the issue of apartheid. When he came back, he realized that the press attention and the headlines he was getting were distorted, as though the trip was somehow laying the groundwork for the 1988 Presidential campaign. It bothered him that people in South Africa were saying, Senator, you’re here because you’re running for President. This is an issue that you expect to use in your Presidential campaign. He said, That isn’t true. He was genuinely offended by that. He deeply committed to civil rights in all its aspects, including the serious problem of apartheid in South Africa, and he refused to allow his opposition to apartheid to be dismissed as an issue of partisan Presidential politics. In the Senate, he was a leader in opposing President [Ronald] Reagan’s policy on apartheid and in passing anti-apartheid legislation over President Reagan’s veto.

I’ll ask later about the status of his Presidential thinking up to 1980. But it was in the air.

Certainly throughout the ’80s it was there, and throughout the ’70s it was there—’72 and ’76, both times.

Does that mean that you encountered the view that anything he was taking on was with an eye to his Presidency? For example, health care or the 18-year-old vote.

No, that wasn’t so visible, I think, at that time. The feeling in the 1970s was that he would almost certainly be the nominee. There was less of a feeling that everything he was doing three or four years out was somehow related to the coming Presidential campaign. I don’t think it began to take a toll on the Senator until the 1980s. Politics changed between the ’70s and the ’80s. With the advent of the Reagan administration, the battle lines became much more sharply drawn than they had been during the Nixon administration. There was much more partisanship. Linking issues to political considerations occasionally happens, but it wasn’t a major factor that I remember from the ’70s. In those years, as far as the Democratic nominee in Presidential elections was concerned, Senator Kennedy was widely regarded as the heir apparent.

So he didn’t have to climb up the ladder.

He didn’t have to be concerned about it. Everybody just understood. But at the same time, I think there was much less focus on partisanship and on how issues in ’69 might relate to the ’72 campaign. That just wasn’t happening.

Did you do any speechwriting early on, or did you help with speeches? There’s a lot in the record about some of the major speeches he gave later on.

I did a lot of the legislative writing almost from the beginning, writing statements for him to give on the Senate floor. Dave Burke did quite a bit of the speechwriting as well, while he was the chief of staff and administrative assistant. I’d say that he was the principal speechwriter until he left the staff in 1970, and then I began to do more and more of it. It wasn’t that I all of a sudden was supposed to write speeches. It just evolved. I spent a fair amount of time editing other people’s remarks and drafting occasional speeches. There wasn’t a lot of speechwriting involved. I’d say it was about 80 percent legislative work and issue papers, and maybe 20 percent of the work was looking at drafts of speeches or composing speeches.

Talk a little bit about health care, which was one of the major early issues you were involved with, and the 18-year-old vote.

They were the two biggest issues of my first year. The 18-year-old vote happened fairly quickly. They’re at opposite ends in terms of the time spectrum. On health care, we’re still trying to reach the goal that we set out in 1970. The 18-year-old vote came up almost by coincidence. It was partly a product of the Vietnam War. 

For years there had been some support in the Senate, though not very strong support, for a constitutional amendment to lower the voting age to 18. Senator Jennings Randolph and Senator Warren Magnuson had been very interested in the issue and had introduced constitutional amendments. But the amendments never moved forward because, I think, there was a general recognition that you couldn’t get the two-thirds vote you needed in Congress to pass the constitutional amendment and then send it to the states to be ratified. 

There was quite a bit of opposition from the Republicans, who were concerned that the youth vote would tend to be Democratic. In fact, there was intense resistance to it. There was also philosophical resistance by a number of Republicans who thought that it was an issue for the states. The states had always set the voting age. Why should Congress suddenly step in and set a national voting age that every state had to comply with? As I recall, there were only two states that had the 18-year-old vote at the time when we began to look at the issue.

In 1969, and certainly in 1970 and 1971, as the Vietnam War dragged on, there was much concern about what was happening to the nation’s youth. The Voting Rights Act of 1970 extended the reauthorization of the 1965 Voting Rights Act, which had been one of the centerpieces of Johnson’s Great Society. It was one of these major civil rights bills in the 1960s. The Civil Rights Act of 1964 was intended to end segregation in public accommodations. The Voting Rights Act of 1965 was intended to prevent states from discriminating against minority voters, and the Fair Housing Act of 1968 was intended to prevent discrimination in housing. 

The Voting Rights Act of 1965 contained a sunset of five years, which meant that it had to be reauthorized by Congress in 1970. The thought was that there was a lot of resistance in ’65 from some of the southern Senators to an endless federal determination of what state voting laws should be. So a compromise was reached that said, We’ll sunset it so that we’ll have to take a look again after five years to see if it works. If southern states seem to be permitting minorities to vote like other citizens, there will be no further need for federal regulation. But by 1970 it was clear, in terms of the civil rights movement, that a lot still needed to be done, and there was no question that the law would not be extended.

By chance, at the end of ’69 and the beginning of 1970, I was looking through various articles about Congress, about the role of the Supreme Court, and about how the Constitution affected laws on voting rights. I came across a Harvard Law School article that Archibald Cox had written. He’d been the Solicitor General in the [John F.] Kennedy administration, and was a very good friend of Senator Kennedy. He wrote, in a Harvard Law Review article in 1966, a very strong defense of the Supreme Court’s decision that year upholding the constitutionality of a provision in the Voting Rights Act that prevented New York from imposing a requirement that people be able to speak English to vote. That precedent, Professor Cox concluded, meant that Congress also had the power to reduce the voting age to 18 by statute. It didn’t have to be done by a constitutional amendment.

By chance you discovered this?

Yes. I was reading it just to learn what was happening in constitutional law. I wasn’t looking for that argument.

With the voting-rights extension coming up in 1970?

Yes. Cox was dealing with a lot of the issues related to the Voting Rights Act in his law review article, but his mention of this possibility immediately clicked, because we were well aware of how much interest there was to lowering the voting age. No one wanted to do it as a constitutional amendment, but Archibald Cox was highly respected, and here he was, saying that it was constitutional to do it by statute. 

So I prepared some memoranda for the Senator, and we circulated them at the beginning of 1970 to other members of the Judiciary Committee, and we got a lot of attention for it. I think the Senator said, It’s worth doing. Let’s try it. It was not a sure thing, and obviously it would be challenged in court. It would have to be ruled on by the Supreme Court, but at least it was a way for Congress to address the issue and to respond to a need that seemed to be very strong in many constituencies throughout the country. 

The Vietnam debate was at the heart of the issue. The argument was, Old enough to fight, old enough to vote. If we can send your son to Vietnam, why can’t he vote on what our policy should be? That argument was resonating particularly with Democrats and even with a lot of Republicans. But it turned out that as we were beginning to make headway on the issue, resistance was developing among key House Democrats who were worried about adding 18-year-old voters to their constituencies, and it became a serious political issue, a serious problem.

What about the Judiciary Committee?

I think we probably could have passed it through the Judiciary Committee.

Would Chairmen [James] Eastland have gone for it?

No, but we felt we probably would still have the votes in the committee if we were to bring it to a vote. As we were developing it and preparing to bring it to a vote, however, a great deal of resistance also came from the civil rights community, unfortunately. The extension of the Voting Rights Act was a must-pass piece of legislation, and they felt that adding the 18-year-old vote amendment to it might somehow undermine the chances of passing the Voting Rights Act over a southern filibuster. Senator Kennedy said, I don’t think that we can push this hard enough to add it to the Voting Rights Act in the Judiciary Committee. So the bill was approved by the Committee without the 18-year-old vote amendment, but we continued to push for it. 

While the bill was waiting for action to begin on it by the full Senate, Senator Kennedy had a conversation with Senate Majority Leader Mike Mansfield, which was rather extraordinary. Apparently Senator Mansfield had been told by Senator Magnuson, I wanted to do this 18-year-old vote by constitutional amendment, but Ted Kennedy has a pretty good idea. I think we can do it by statute. Some of the civil rights groups are saying, ‘Don’t do it. You’ll cause problems for the Voting Rights Act.’ I don’t think that’s true. I think, Mike, that if you and I take the initiative and bring this 18-year-old vote legislation to the floor for a vote, we’ll be able to pass it, and the Voting Rights Act will not be affected at all. 

At that point Mansfield came to Senator Kennedy and said, Ted, Senator Magnuson and I would like to offer your 18-year-old vote amendment, and the Senator said, There’s resistance from the civil rights community. Mansfield said, I think we can deal with that. We intend to do it. You’re with us as one of the chief sponsors of the amendment or you’re not with us, but we’re going to offer it. Kennedy said, Of course I’m with you. So they introduced the amendment, and it passed something like 64 to 17 in the Senate, rather remarkably.

Was [Barry] Goldwater brought in?

No, but he was for it.

It was Kennedy’s issue.

Yes, it was definitely Kennedy’s issue. I think that Goldwater had been considering supporting it, but I don’t recall him playing a significant role in it. The key decision was Mansfield’s. Phil Hart, the Senator from Michigan, who was a good friend of Senator Kennedy’s—Kennedy respected him immensely—felt strongly that it would be a mistake to add it to the Voting Rights Act on the Senate floor. His staff member came over and told me, If Ted Kennedy tries that, Senator Hart will have to move to table it, meaning he’d try to defeat it, to vote against it. That, I think, caused Senator Kennedy to pause. But Senators Mansfield and Magnuson didn’t feel that way. Senator Hart acquiesced in the end, and did not oppose it. 

The fact that the amendment sailed through the Senate by a remarkably large margin gave it a head of steam, and the House accepted it in conference. They added a provision that, if the amendment were challenged in the courts, it would go before a three-judge court in the District of Columbia and then would go directly to the Supreme Court for a prompt ruling on its constitutionality, so that the issue would be settled in time for the 1972 election. That provision was designed to allay any doubts that we could deal with the constitutional issue very quickly. The bill was passed, and was signed by President Nixon, because he could not have vetoed the Voting Rights Act legislation. 

The issue quickly reached the Supreme Court, and the Supreme Court, rather surprisingly, came out with a very unusual decision in which the Court was split 4-4-1. Four Justices said that the bill was entirely constitutional, four Justices said that it was totally unconstitutional, and one Justice, Hugo Black, said, I think it’s constitutional for federal elections. Congress can do that for federal elections, but they can’t do it for state elections. That left a large national problem, particularly for the ’72 election. Many states immediately said, Wait a minute. We’ll have to maintain two different voting rolls, one for our state elections and one for our federal elections? That’s going to be a nightmare, a needless administrative burden. 

That problem gave sudden momentum to the effort to pass the constitutional amendment, to get it ratified by the states in order to avoid the problem in the 1972 elections. That amendment was brought before Congress soon after the Court’s decision. Congress passed it overwhelmingly by a two-thirds majority in March of 1971, and the necessary three-quarters of the states had ratified it by the beginning of July. My impression is that it was the fastest ratification of a constitutional amendment ever. 

In terms of an idea starting from scratch and being enacted, you rarely see something happen, as controversial as that was, as quickly in Congress. It was one of Senator Kennedy’s major achievements, and he was obviously delighted with how it turned out.

Separate from the Voting Rights Extension, did the bill for the 18-year-old vote go through the Judiciary Committee?

No, it was an amendment to the Voting Rights Act. We offered it as an amendment in the full Senate. We didn’t introduce it as separate legislation.

So the filibuster didn’t take place.

No. I think the Republicans understood that there was no chance that they could deny the votes to pass it, or at least they weren’t willing to stand up and say no to 18-year-olds. Once Mansfield and Magnuson made it clear that the Democrats would obviously be for it, the politics of it changed a great deal. The civil rights community was legitimately concerned about what might happen to their legislation, because it was already headed for major problems in the Senate. Any civil rights bill was subject to a filibuster, and it was difficult enough to break the filibuster without the 18-year-old vote as a rider. They had worked so hard on this bill, they felt—

Don’t load it up.

Yes. Do the 18-year-old vote as a separate bill, they said. Magnuson and Mansfield made an enormous difference with their mastery of Congress plus Kennedy’s initiative. Mike Mansfield had immense respect as the Senate Majority Leader. When he said he was going to do it on the Voting Rights bill, the objections of the civil rights community were withdrawn and they got on board and were all for it. It turned out to not have any harmful impact on any of the civil rights provisions. In fact it may have helped the bill get through. At the time, I think their  concern was that Senator Kennedy was causing more problems than solutions. When Phil Hart changed his mind, he changed the mind of the civil rights community too, and I think that made all the difference.

Were there major hearings on it?

Yes, we had full hearings on it. We prepared extensive memoranda for it, invited experts in, and the other side made their case against it. Our case was very strong, but it was based on precedents of the [Earl] Warren Court. As it turned out, the Court’s membership was changing, and the 18-year-old vote amendment  got through the Court by the skin of its teeth. I don’t recall another case where there was a double 5-4 decision—5-4 for the federal 18-year-old vote and 5-4 against the state 18-year-old vote—all in the same case, but it worked out okay, fortunately. We certainly were delighted that Hugo Black was still on the Court at that time.

Was that a learning experience for you?

Oh, yes. It was a baptism by fire, not only having to deal with the pressures of the interests groups and their longstanding commitments—We’re on the same side. Why are you doing this to us?—but at the same time, it seemed like an opportunity that shouldn’t be missed. Archibald Cox’s wisdom and reputation had a great deal to do with it. It was coming not just from Ted Kennedy, but from Archibald Cox, one of the preeminent constitutional scholars in the nation, who had said that it was possible. We ought to let the Supreme Court settle that question.

But I don’t think the heart of the problem was that the civil rights community was worried about the impact on the civil rights bill; it was that many members of the House of Representatives had gone to the speaker and said, We don’t want 18-year-olds voting in our district. We have our districts right where we want them now, and this is going to upset everything. They communicated that politically to their House leaders.

How was that opposition in the House dealt with?

It was dealt with by the Senate saying, We don’t think that’s a significant enough reason to not take advantage of this opportunity. In fact, I think it encouraged the Senators to put it on the bill, because they felt that a stand-alone bill on the 18-year-old vote, which was another possibility, would have immediately died in the House of Representatives, and they weren’t willing to let that happen. It hadn’t been possible to get the constitutional amendment to a point where Senators felt that they could bring it up, get the two-thirds vote needed, and send it out to the states to be ratified. All of a sudden, those Senators who were committed to the 18-year-old vote saw the answer to that problem and they said, Let’s seize the opportunity. Don’t let this moment pass. It was a rare case where I think they made a difficult but very important judgment, and it made a huge difference. I don’t think that the 18-year-old vote—

It was your discovery that—

Well, it was Archibald Cox’s article. [laughter]

I know, but it was your discovery to put it into the politics.

I was like, Eureka, Cox has given us the argument we need.

The Speaker of the House was [John] McCormack?

No, it was Tip [Thomas] O’Neill at that time.

How did he feel about it?

He was communicating that his House members didn’t want it.

But he didn’t take up their cause?

No. I think he basically was responding to the fact that the Democrats had a large majority. During that period, we still had a very large Democratic majority in the Senate and House, and it was possible to push through things like that. Speaker O’Neill realized, however, that half of his caucus was concerned about this. They didn’t want this to happen in their districts. They wanted to sink it behind the scenes. I don’t think they wanted to sink it to the extent that they would stand up and vote against it. They couldn’t do that. 

It was Mansfield’s power of leadership that got it through. If he hadn’t been the majority leader, it probably wouldn’t have happened. I know that people were asking, How can you let Mansfield take over your amendment? I said, Wait a minute. We’re part of it. With his leadership we can get it done. Kennedy had immense respect for Mansfield. I think that Mansfield looked at what Senator Kennedy had proposed and said, This is too important to let the moment pass, so we’re going to take advantage of it.

And the Nixon administration did not try to stop it?

No question. They never would have vetoed that bill. They weren’t even interested in coming up and making a strong argument against it. They basically were on the side of the Civil Rights Act. They were lined up against segregation. Nixon was a moderate against the right-wing southern Democrats on civil rights, and for Nixon to have come out against civil rights, that was never an issue.

Also against denying the vote to those he was sending to war.

That’s right.

That wasn’t exactly the issue, I suppose. Was there any lesson you learned from that experience? You said it was your baptism by fire.

In some ways I was impressed by the degree to which you could take an esoteric, legal argument and translate it into a political success. In some ways it’s unique. I can’t think of anything comparable to that, at least that I recall. I’m sure that there have been other examples of ideas taking hold that are legal controversies initially but then are resolved somehow. Usually that’s the way it happens. 

It’s rare, I think, that something like that happens, where there is a legal issue of such importance that it captures the imagination of the Congress, and you’re either for it or against it. What do we do? All of a sudden Congress was faced with an issue that the Supreme Court usually decides. Basically Congress sent this issue to the Supreme Court saying, We think this can be done. It’s your judgment as to whether you agree. 

In some ways the two most fortunate things that happened were, first, that we had a majority leader in the Senate who was committed to the issue, who was willing to say, Kennedy has a good idea. Let’s go with it. Second, though the Supreme Court was beginning to bend toward the conservative side even then, it was still liberal enough to justify it. I don’t know whether it would have happened today.

You wouldn’t take such comfort in saying, Just let it go to the Supreme Court.

No, we wouldn’t. Frankly I was surprised that we didn’t get a larger majority in the Court. The decision was a signal that the Court was shifting significantly toward the right. I think that most of the Senators who voted for it expected it to be resoundingly supported by the Supreme Court and not to squeak through as it did. I don’t know of any other precedent that was of such major political importance where there has been such a splitting of hairs between what Congress can do for the states and what Congress can do for the Federal Government.

Did you do work with Magnuson’s staff?

Yes, quite a bit, and Kennedy worked with them too. He basically thanked them for participating, and said that he was happy to work with them and that they had saved the day. I think he felt that. In some ways I think it increased the ability of Senator Kennedy to work with some of the senior Senators, such as Magnuson, who was a big deal on the Appropriations Committee. I think they gained a new appreciation of Senator Kennedy. He was good politically and friendly to work with, and he could do his homework and come up with things that were very beneficial. It was one of those steps that, by chance, came at the right time. It was right after 1969. It helped him establish himself as an effective Senator who could work with Senate leaders.

Before you came, the poll tax was his particular initiative.

Yes.

Which raised some of the same warnings from the Johnson administration: Don’t try to put this into the mix because you’ll risk a larger issue.

Right.

I understand that the civil rights community, the activists, very much wanted that.

Yes, very much so. That wasn’t a problem then, and I think that there certainly was a difference. The poll tax didn’t arouse the kind of Democratic sub silentio opposition that initially jeopardized the 18-year-olds vote—the I don’t want them voting in my district attitude.

Right.

But it was a precedent. The Senator, I think, particularly on Judiciary Committee issues, loves to work his way through everything. He likes to bring law professors together, bring them down.

Did he have any issue dinners over this?

No. The constitutional issue was pretty clear because we had Cox’s position.

So he didn’t have to have them.

We didn’t need to bring in people to convince him. There was enthusiastic support from a lot of interest groups and from other people we consistently worked with. They thought, If Archibald Cox says we can do it, how can any Democrat say no? We realized we needed to put in a provision for a rapid constitutional decision, and that obviously saved the day in some ways. I think it might not have been necessary. The case could have gone through the courts in the regular fashion, but the issue might not have been settled in time for the ’72 election. Still, there was concern that it was being done even though no one knew for sure if it was constitutional. In the end, the civil rights groups allayed those concerns and said, We can deal with any of the significant objections that come, in particular, from our supporters. Senator Kennedy had been very concerned and felt a lot of pressure initially, when Phil Hart said that he couldn’t support it.

Was the practice of setting an agenda for the session already established at the beginning of the session, or was it just beginning? Here are some things we want to accomplish. Did that agenda-setting statement, usually accompanied by public statement, come later in his career?

Yes, that came later, after he’d become a full committee chairman, after the 1978 election. I think that until he became a major-committee chairman, he was somewhat reluctant to set an agenda. But once he was chairman of the committee, then he’d say, This is how we’re going to deal with our principal priorities on the committee.

Would you say that he was searching for something that he could do and accomplish? In what areas? After all, it was a pretty crowded field in the civil rights era before that. He was a latecomer to the process of reform. He wanted to establish himself as a doer, as somebody of accomplishment, and as an effective Senator.

I think he liked the idea. He didn’t want to be just a go-along Senator. He felt there were a lot of issues that needed to be addressed. and he welcomed a lot of input. 

One of the advantages of working in his office, which we always describe to potential new staff members, is that you see a fair amount of Senator Kennedy. The Senator doesn’t want them to have to go through me or through his chief counsel on each of his committees. He wants to have meetings in which junior staff members are in the room to discuss the issues. That has been extremely helpful, because word gets out that if you go to Kennedy’s office, there isn’t a hierarchy that you’re at the bottom of and that you have to painfully work your way up. You can start right out talking to Senator Kennedy. 

I found that somewhat hard to believe. I hadn’t had much contact with Senator Kennedy, and I certainly was more an academic than a political figure. In fact, if I hadn’t come to this office, I probably would have taken a job teaching at a law school. I’d interviewed at a couple of law schools before I got the call from Flug, but Kennedy’s office was too appealing to turn down.

I wanted to ask, what could cause a young person, at that stage, a young lawyer whose career was ahead of him, to take a low-paying job, relatively speaking?

It was Kennedy for President, no question. That was part of the appeal. I thought that he was very likely to emerge as the Presidential nominee in 1972. I probably wouldn’t have come to work for any other Senator. At the same time, I wasn’t at all sure that this job was cut out for me. But after a couple of years, I never looked anywhere else.

You clicked.

It was too good a job not to keep going. Part of it is the joy of working with him. He loves to have meetings with staff, to go over issues when there’s time, and to seek out major new issues and ideas, and he does it all with a great sense of humor. 

For years he used to have dinners at his house with experts. On a typical evening at Kennedy’s house, we’d have well- known people in a particular field, whether it was on health care or education or a Supreme Court confirmation or whatever. We’d have a social dinner around the dinner table, with Kennedy, probably three staff people, and four or five experts, and then we’d spend two hours on the issue after dinner. It was very illuminating and enjoyable. You felt that you had access to the very best thinking in a perfect setting. It’s one thing to read everything the experts write. It’s another to have them beside you, where they can communicate  directly to Senator Kennedy. And he absorbs it like a sponge.

And nobody would turn him down.

No.

He could get anybody.

That was a big attraction. The saying was that other Senators read what the experts write, but they answer Senator Kennedy’s phone calls.

Isn’t that rather unusual?

I think so. Most of the leading experts are obviously in demand. If it’s not the media wanting to talk with them, it’s the leadership in Congress. Kennedy, regardless of his whip position, was, I think, clearly regarded, certainly by the liberal intelligentsia, as the person who could get their ideas accomplished, and they were eager to lay out their ideas in front of him. They’d drop everything and take the plane in or train down from Boston or whatever. We frequently did this. It hasn’t happened so much in recent years, but we used to do it, oh, sometimes three times a month, maybe once a week, something like that during the sessions of Congress.

It’s extraordinary.

It was very informative not just to the Senator, but to the staff as well. The other outreach that we spend a lot of time on, obviously, is talking to interest groups. They not only have an axe to grind—they also have extraordinary knowledge to share. We’ve always found them very effective, very helpful, not only in lining up other like-minded Senators—and sometimes unlike-minded Senators—to support our cause, but also in guiding us in some of the nooks and crannies of legislation in order to ensure that it’s not just a big, overall success, but that the details come out well too. I think that has been part of the secret of Kennedy’s achievements, that he has access to a world of advisors.

And he listens.

Yes, and he absorbs. He has an incredible memory. He can digest what they’re saying and frame it in his own words and repeat it on the Senate floor in a way that is very difficult to rebut. It not only strengthens his knowledge of the issues in general, but I think it strengthens his debating ability on the floor as well. He loves to talk about issues. I don’t think he’d like to sit down and write an op-ed article, for example, but he would love to sit down and debate an issue with anyone from the other side. People leave those briefings and they say, That was wonderful. Can we do that again? It’s remarkable.

At the dinners, was he the questioner or was he mostly the listener?

No, Kennedy would ask questions for about a third of the time, the staff would add questions for maybe a quarter of the time, and the various experts would chime in for the rest of the time. We found that getting five together was sometimes too much, sometimes even four, but typically there would be four people.

Four outside or four total?

Four from the outside. Typically it would be the Senator and two or three staff people from the inside. Maybe I’d be there or the chief counsel of one of his committees or subcommittees would be there. Usually, in recent years, say, Michael Myers and I would attend, as would whoever on the staff was doing most of the detail work on the issue. It was always informative, and I think it reassured Senator Kennedy that he had the intellectual support for the issues he was dealing with. The experts all are typically fairly well known. For example, one of his priorities in the ’70s was the 1976 Tax Reform Act. He said, The Tax Code is out of control, and I want to get involved in it. 

The Assistant Secretary with Treasury for Tax Policy in the LBJ Administration and in JFK’s [John Fitzgerald Kennedy] Administration too, was Stanley Surrey, a famous name in tax reform and a highly respected professor at Harvard Law School. Stanley Surrey was a brilliant educator as well as a great authority on tax policy. He basically floated the idea, at the end of the Johnson Administration, that the Internal Revenue Code is broken. The reason it’s broken, he said, is that there are too many ways for wealthy taxpayers to game the system by allocating their assets so that they can receive tax-free income. He said, What we need in this country is a minimum tax, so that nobody gets off scot-free. 

What generated the most attention was his finding that 155 Americans earning over two hundred thousand dollars a year in 1967 paid no income tax at all. That created an uproar. Because it was Stanley Surrey of Harvard, it caught Kennedy’s attention too. He said, I haven’t been involved in tax reform yet. Let’s see what we can do. So we put together a minimum tax, and he passed that in 1969. That was another one of those irresistibles that nobody could say no to once the facts made it clear that it was a scandal. The country was outraged by the scandal, and it was all because of Stanley Surrey. We put the idea into legislative form and brought it to the Senate floor, and the Senators voted for it. 

The minimum tax, unlike the 18-year-old vote, has caused growing pains ever since. It’s now called the alternative minimum tax, and Congress, partly because of conservative influence, has not adjusted it to keep pace with inflation. It’s not catching all of the income that should be taxed, and it’s reaching lower and lower on the income scale, from the very wealthiest taxpayers down into middle-income families. 

There are liberals who, for the past decade, have been calling for alternative minimum tax reform. As you still see in the press today, this is one of the issues that Democrats keep trying to put into any tax bill that comes along. The longer this reform is delayed, the more expensive it becomes to deal with it, because it requires a tax cut that Republicans would rather give to someone else. The minimum tax today is not what Congress intended when it was created. It’s reaching down into the middle class, adding to their tax burden. Republicans ignore that, Democrats keep trying to reform it, and one of these years it probably will be reformed.

As I said, that was another Kennedy issue that sailed through Congress. When it passed in 1969, it was the beginning of Senator Kennedy’s involvement in tax policy. He was exploring different fields, and learned how Congress had been finding ways to spend money through the Tax Code in order to avoid including it in appropriations bills. 

Stanley Surrey blew the whistle on this trend. Basically he introduced, in addition to the minimum tax, the concept of tax spending, or tax expenditures, as he called them. He was explaining what Congress had been doing surreptitiously through the Tax Code what it could never have done through the appropriations process. The Tax Code is supposed to bring in revenue to pay for public works and functions of government. But Congress had begun, through its use of tax deductions, tax credits, and other special incentives, to dispense large gifts to relatively wealthy taxpayers and numerous special interest groups. A lot of those tax breaks are not going to lower- and middle-income citizens who deserve a fair share of these tax breaks too. You can’t ignore the fact that you’re not being fair simply by putting tax relief in the Internal Revenue Code only for special-interest groups.

Surrey published a long list of tax expenditures that Congress had enacted over the years. He listed the dollar amount of each of them, and you began to see how much we were giving to oil companies, to other special-interest groups, and, of course, to homeowners through the mortgage-interest deduction. But there were many deductions that businesses could take that weren’t available to ordinary taxpayers, and some of them didn’t look like legitimate business expenses. So Kennedy was interested in that as well. 

Once the success of the minimum tax showed him that he could accomplish something on tax reform, he decided, We’re going to roll up our sleeves, learn a lot more about the Internal Revenue Code, and see what we can do. He began to prepare himself for a debate over tax reform, which had slowly begun to gather steam because of Surrey’s outline of the many tax expenditures that were not being monitored by Congress, even though they were giving away billions of dollars through the Tax Code and were causing serious problems for the federal budget.

How could he get a hook on this? Was this Finance Committee stuff?

It was all Finance Committee stuff.

He wasn’t on the Finance Committee then.

No, he wasn’t. That was a problem, but I think his stature, along with the minimum-tax debate, established him as a player on tax-reform issues, as did the new disclosures that were coming out about the nooks and crannies of the Tax Code that were sweetheart deals and that somebody needed to monitor. So there was a movement for tax reform that began to develop in the 1970s and that came to a head on the Senate floor in 1976. In that debate, Senator Kennedy challenged Senator Russell Long, who was chairman of the Senate Finance Committee. Senator Kennedy spent about six weeks standing on the Senate floor during July and August. He said, It was the worst thing I ever did for my back. 

We didn’t accomplish much, except to blow a lot of whistles and to put the issue more front and center. Although he wishes that we could have accomplished a lot more, he was part of the initial effort that took tax reform out of the do-not-touch file in Congress and said, We can do more to monitor how we’re spending the government’s money in the Tax Code, as well as through our direct appropriations. There has been more scrutiny of it, by far, since then. 

Russell Long, in some ways, was a good friend, but he was also a formidable adversary, and he wasn’t at all interested in having Kennedy write the tax laws. It was fairly frustrating. Nevertheless, Senator Kennedy felt that nobody else was willing to spend the time and to roll up their sleeves on the issue. I was amazed at how much he was prepared to go into the minutiae of the Tax Code to find these provisions, to open them up and explain them, and then to ask the Senate to do something about them. I think it helped lay the groundwork for a much more vigorous accountability. 

It’s not so easy now, I think, for Congress to get away with a blank check for tax breaks for whatever incentives that some interest group calls for. There are still a lot of them, however. Some of them are so-called investment incentives. It’s good to stimulate business, but there’s a feeling that we can’t go overboard as much as we have in the past. That’s a long way of saying that one of Kennedy’s major initiatives in the 1970s was to make more visible the way the budget deals with the Internal Revenue Code and how our tax system relates to the rest of the budget.

On an issue like that, would you be the point person?

Yes.

Since it wasn’t an issue involving any of Senator Kennedy’s committees.

Right.

Or maybe for other reasons as well.

Yes, but I wasn’t expert enough to do what needed to be done for the Senator. Stanley Surrey had a young protégé up at Harvard who knew a lot about the Tax Code. Paul McDaniel was basically Senator Kennedy’s tax advisor for a period of four or five years, from the early ’70s through the ’76 legislation. He was very good and very effective. He understood how Congress worked, and I worked very closely with him. We’d work on the particular issues that were worth Kennedy raising, such as by amendments on the Senate floor. I don’t know if you’ve come across Paul’s name.

No, I haven’t.

It was different from Kennedy’s traditional work in the Senate, but for six or seven years in the early 1970s, I think he was a significant player. I mean, he was Mr. Tax Reform in the Senate. No one else was assuming that mantle.

That hasn’t come out.

He felt that it was a vacuum he could fill, and he was willing to put in the time and the intellectual energy to understand it. Paul McDaniel was just the person to staff us on these issues.

I’m hearing this for the first time.

Yes, it’s too bad. I should have mentioned him earlier.

I mean, not only about him but also about this whole area.

Senator Kennedy hasn’t done much on tax reform since he became a full committee chairman for the first time in 1979. There were simply too many other responsibilities after that. At the time he chose to work on tax reform in 1969, he felt that he could pick almost any issue he wanted in any committee jurisdiction, and this one seemed to be asking to be brought up and laid out to see what would happen. It was basically his idea that it had gone unscrutinized for too long, and he was appalled when he heard about the billions of dollars that were being spent with basically no accountability, through the back door, through the Tax Code.

And he heard about it through you.

Yes, and I heard about it from Stanley Surrey.

You brought it to his attention.

Yes, but he had known of Stanley Surrey before that. The issue didn’t really burst forth until Surrey left the administration and called for a minimum tax. The thing that started it all was his revelation that 155 taxpayers were earning vast amounts and weren’t even paying a dime in income tax. That hit the country like a bomb, and that’s why the minimum tax sailed through so quickly. 

Do you want to talk about health care?

Sure. Health care was, I would say, the biggest of the basic issues that was not being handled when I arrived in the office. I think I was hired as much to go into health care as probably any issue. Looking into it, it became clear to me that we needed to pick up where LBJ left off with Medicare and Medicaid. A lot of the academics I talked to—we had meetings with Senator Kennedy on all aspects of the issue—felt that we’d missed an opportunity for comprehensive health reform, first in the 1930s, when Social Security was enacted, and then in the ’60s, when Medicare and Medicaid were enacted. Let’s not miss it in the ’70s. That was the attitude. 

But by the ’70s, unfortunately, the tidal wave had changed. The arc of liberalism was declining instead of gaining. The price tag made it unenactable, but that didn’t mean that we weren’t going to try to do it. We thought at the time that we could do it. We were very optimistic about it, because the atmosphere in the Senate in 1969 was very much that we were going to pick up where we had left off under LBJ. Nixon did not come in with a reputation as the type of hard-line conservative that you get today. He was a moderate, by far. Many of the things that Nixon did on health care would be anathema to conservatives in Congress today. We worked reasonably well with the Nixon administration on a number of health issues, but on national health insurance, they weren’t willing to do that. 

Senator Kennedy felt that it was very important, and he wanted to establish the marker, so we began to put it together, largely because of his conversations with Walter Reuther, the great leader of the United Auto Workers, as much as anyone. Unfortunately, Reuther died in an airplane crash in May of 1970, and his death was a huge loss for the cause of health reform.

Do you want to talk about this next time?

Yes. I was just laying a little groundwork now. In a nutshell, Kennedy spent a good deal of his time learning about health reform issues in 1969. At the end of that year, in a speech in Boston, he broadly outlined his plan for national health insurance, which was basically a firm guarantee of decent health care for all Americans. He wanted to begin the debate, and with the thought that he would begin to push the issue as a member of the Senate Labor Committee. 

At the time, his agenda on the committee was still developing. He’d already proposed a number of education reforms. But in the spring of 1970, Senator Ralph Yarborough, the Chairman of both the full committee and the Health Subcommittee, was defeated in the Texas primary election, and the Health Subcommittee chairmanship opened up for Senator Kennedy. Senator Claiborne Pell was continuing as chairman of the Education Subcommittee, so that subcommittee was not available. Senator Kennedy said, Health care is my subcommittee. Let’s go. Senator Yarborough’s staff director for health, Lee Goldman, continued on as part of Kennedy’s staff, and we began to build a broad agenda on health care. It was clear that national health insurance was not going to be enacted right away, certainly not in that Congress, but Senator Kennedy felt that he ought to lay down a marker and say, This is going to be our goal. We have to make sure that what we do brings us closer to that goal and doesn’t instead make it even more difficult to achieve. 

On many of the issues we began to work on in health care, there were different ways to deal with the problem. As new problems emerged in the health care system, we decided that one of the first things we could do—and even this happened much later—was to guarantee that if you changed your job or lost your job, at least you could keep your health insurance. That was a major bipartisan issue that Senator Kennedy worked on with Senator Nancy Kassebaum. We took a similar approach to children’s health care: at least we could provide health care for children and thereby avoid a lot of their problems. If you don’t have good health care for a child, it creates a huge burden for the system as the child grows. We did that in a bipartisan way too, with Senator Orrin Hatch.

I can tell you a fair amount about Senator Kennedy at the beginning of health care, but after he became chairman of the Health Subcommittee, his staff there did the major staff work on the issue. I was still involved in a lot of the issues, and those were important issues in the ’70s, ’80s, ’90s, and right up to today. We worked on a lot of health issues, always with the goal of broad health care reform in mind, but we were still a long way from reaching it. We’ll get into that.

The last time I talked to the Senator, he refused to be pessimistic about the next opportunity.

We’ll see. We’re hoping that 2008 will be another landslide year. In some ways, I think the pieces are in place for some sort of major, national health reform in 2009, health care for all as opposed to just piecemeal reform of the kind that Congress had been enacting since Medicare and Medicaid were passed in the 1960s. [Barack] Obama certainly seems ready to do that. [Max] Baucus, the Finance Committee chairman, is ready to do that. I think that even some Republicans are. We’ll see what reorientation there is in Congress. If it’s a neck-and-neck race, then I’m not as optimistic about health reform. I don’t think you can be a pessimist and stay around the Senate very long.

Okay, we’ll wind this up now. Thank you very much.

Thank you.