Carey Parker Oral History (11/10/2008)

This is an interview with Carey Parker, in Washington, D.C., on November the 10th. Maybe some day we’ll have a way of designating pre-[Barack] Obama, post-Obama. There have been some astonishing events, electoral results, so we’re basking in that glow, but we’re going to go back.

And we hope it continues for a while.

Yes.

I hope it’s not for just the first 100 days. [laughter]

We can talk about the significance of this event at some point if you’d like to, but maybe we ought to wait until it unfolds.

Probably. Right now, expectations are very high, and there’s a lot of talk about which priorities will be first in line. He’s clearly in a frame of mind where he doesn’t want to disappoint anybody, but there are a lot of suggestions to concentrate on the economy first. The question is, how much else will there be room for? We’re hoping that health care doesn’t fade to a second priority. Senator Kennedy wrote an op-ed piece about it that you might have seen in the Washington Post on Sunday.

No, I did not see it.

It basically said, Let’s move forward on health care. It’s no time to wait.

At some point we’ll talk about the [William] Clinton moment in health care and what preceded that and what happened to it. That will probably be an instructive and interesting story to tell, but we won’t do that today, unless you want to.

Whichever way the path of history leads.

We were going to pick up on some subjects from last time. Go ahead.

There were quite a few things that happened in the first couple of years after I arrived. One of them was that Senator Kennedy became concerned about a plan that had been on the drawing boards in the [Lyndon] Johnson administration to build an anti-ballistic missile system that would protect American cities against a nuclear attack by China or the Soviet Union. As the LBJ administration was ending in 1968 and [Richard] Nixon was coming in, there was a lot of talk about building this anti-ballistic missile system. Kennedy was very concerned about it. A lot of other Senators were hearing from constituents around the country who were nervous about such a policy. 

Kennedy was beginning, after RFK’s [Robert Francis Kennedy] death and after coming back to the Senate, to reach out to as many experts as possible. A couple of people he talked to were Abe Chayes at Harvard and Jerome Wiesner at M.I.T. [Massachusetts Institute of Technology]. They shared his concern about an ABM [anti-ballistic missile] system. They convinced Senator Kennedy that the major problem with this new focus on nuclear arms and the Cold War—and on what it meant in terms of protecting the country—was that decisions too often were being made behind closed doors in the White House, with very little involvement of Congress and with very little involvement of outside experts. The notion of somehow protecting every major American city from a nuclear strike seemed beyond imagination. 

I wasn’t the principal staff person involved in this. I was involved a little bit. Dun Gifford was the Senator’s legislative assistant on the issue. He worked closely with Chayes and Wiesner, and they decided to put together the arguments for and against a nuclear freeze and to analyze the arguments. The upshot was that within a few weeks in 1969, they had enough material to release a book of essays, which was called ABM: An Evaluation of the Decision to Deploy an Antiballistic Missile System. It provided an extraordinary amount of detail and scholarly input, particularly for members of Congress who were not yet part of this debate. They began to see and hear questions that should have been asked before in Congress in terms of how to shape the debate. 

The Nixon administration became aware very quickly that this issue was going to be a can of worms in Congress, and they immediately redesigned the program. Instead of protecting our cities against China, which had been the Johnson Administrations’ recommendation in 1967. Nixon’s new strategy, adopted early in 1969, was to protect our missile system against a first strike by Soviet nuclear weapons. They felt that they could adjust the system to build extensive defense networks, particularly the science and technology for the defense facilities that would be needed in remote parts of the country.

The silos and—

Yes. They would detect the missiles launching, and the anti-ballistic missiles could be fired from relatively rural parts of the country, which wouldn’t involve huge projects in major cities. In the end we lost the debate, and the anti-ballistic missile system went forward. But I think we felt that Kennedy’s jumping into the debate at that time made a significant difference. 

Kennedy’s role was controversial to some. They thought, It’s 1969. He’s thinking of challenging Nixon in 1972. But that wasn’t a significant factor in his decision to take up the issue. He knew he had growing clout in Congress as that year was starting, and the more he learned about the issue, the more concerned he became. He knew the arms-control community was very interested in having access to experts around the country who would look at the issue, who would contact their own people who had sources of information, and who would then formulate the case either for or against these anti-ballistic missile systems. They changed the tone of the defense debate in the country, I think.

Had an ABM system been on the table? Had it been an issue in the John F. Kennedy administration?

Not significantly. The [Dwight D.] Eisenhower Administration had begun research and development on possible ways to protect our missiles in the 1950s. That R & D work continued under JFK, but both of them decided it was premature to deploy a system.

Wiesner had been science advisor to President Kennedy?

Yes, and Chayes had been in the State Department. In fact I’ll take a brief detour. There was a great story that Justice [Stephen] Breyer used to tell. When he came to work on Senator Kennedy’s staff in the 1970s on regulatory reform, he was on the faculty at Harvard Law School, as was Abe Chayes, who had gone back to Harvard at the end of the Johnson administration. 

Steve sought Chayes’ advice about taking the job on Kennedy’s staff. Chayes told Steve, That’s the wrong career move for you. You don’t want to go up to Congress. If you’re interested in public service, you need to go into the administration, go with the Justice Department, or be part of the White House Office of Legal Counsel. You can be in the State Department like I was. Steve said, No, I see this regulatory-reform issue bubbling up with Senator Kennedy, and he’s very interested in airline deregulation. I think that’s what I’ll do. Years later, when Breyer was sworn in as a Justice on the Supreme Court in 1994, he said he always wondered what Abe Chayes would say now about his career move. [laughter] 

On the ABM issue, Chayes and Wiesner deserve a lot of credit for recognizing not only the seriousness of the issue, but also the importance of making it a public policy issue that the country and the Congress could understand, so that the legislative branch wouldn’t just feel it had to passively acquiesce in administration policies on defense, as seemed to have been typical through at least the early part of the Cold War. Through World War II, a lot of members still had the attitude that basically Whatever the President wants, the President gets. I think that Chayes and Wiesner recognized that we were in a new era with nuclear weapons. 

The question is, does any administration make the right moves behind closed doors? Don’t we need at least to inform members of Congress? I think people felt that this was a contribution. You could turn to almost any page in the ABM book and see the arguments and rebuttals that were being made. It certainly, I think, pulled the administration up short. There was no longer a possibility of forcing something through Congress without adequate debate and commit the nation to a decade-long program of building a massive nuclear defense system that might not work.

So it brought the nuclear-defense debate into the public square, so to speak. It was a discussion about strategic policy, basically.

Yes, right. Almost immediately there was a retreat by the administration. They basically agreed with Chayes and Wiesner. In the book, they included something like 15 chapters that were written by analysts in 15 of the various subareas of interest within the issue. It was a very scholarly but readable analysis, we felt. I think the Senator deserves some credit for awakening the country to that issue. In many ways it led to the escalation of the nuclear-freeze movement. That was a key movement that began to take shape.

That was contemporaneous, wasn’t it?

No, it was just beginning. Kennedy published two books related to arms control. The second came out in 1982, when the nuclear-freeze movement was reaching full speed as people realized Reagan’s arms plans. 

That was another book that Senator Kennedy put together. It was called Freeze, and it came out at the end of ’82. It basically tried to do what the ABM book had done for the anti-ballistic missile system. It said, We need to do much more than protect ourselves against these missiles. We need to prevent the development of new types of missiles and even more deadly nuclear missiles. We were in strong support of the freeze movement. It was active in most cities across the country, so we had a constituency that was ready to champion the cause. 

Kennedy, during the Reagan years, coined the phrase Star Wars to describe Reagan’s nuclear arms policy. We later heard that somebody else had called it that before Kennedy did, but nobody realized that at the time. Kennedy gave a speech calling it Star Wars, saying, We can’t go forward, as if this were a Hollywood adventure. It caught on, and I think even the Reagan people liked calling it Star Wars. They thought of the popular movie. [laughs]

Can you talk a little bit about the philosophy or approach that underlay Kennedy’s entry into this? Was it basically antiwar?

To some extent that’s true. He picked up the mantle of Robert Kennedy in terms of opposition to the Vietnam War.

He had started out supporting the Vietnam War.

He wasn’t opposed to it in the early ’60s.

One didn’t oppose your President.

That’s right. But by the end of the JFK administration, Vietnam was nowhere near what it was by the end of the Johnson administration. Nobody foresaw how bad it would get. Once it got as bad as it did, it was like Iraq. 

In 1964, there were only two votes in the Senate against the authorization to use force in Vietnam, Ernest Gruening of Alaska and Wayne Morse of Oregon. That was after the battle of the Gulf of Tonkin in 1964, when Johnson sought permission from Congress to use force. Senator Kennedy was not present for the vote—he was still recovering from his serious injury in an airplane crash in June of that year. But he announced that he would have voted for the resolution.

They had a term in those years, peaceniks.

Yes, that’s right. [laughter]

The right was playing off of Sputnik. Was the Senator in that camp? That’s what I’m trying to get at, if he was developing a philosophy of avoiding armed conflict, of finding alternatives to conflict. What was the motivation?

That came later, as we became more deeply embroiled n the war in Vietnam. He began to feel that the escalation was unjustified, that there were alternative steps that we could have taken. In some ways the situation seemed to repeat itself when [George W.] Bush went into Iraq, in a similar way to how Johnson used the Gulf of Tonkin episode as an excuse to launch the war in Vietnam. Hindsight is a lot clearer than foresight. Many members of Congress who voted on Iraq remembered the Gulf of Tonkin Resolution, and they said, We think it’s the wrong move. We’re not going to acquiesce just because the President says it’s the right move. 

On Vietnam, Kennedy began to feel that there were alternative ways to deal with the situation. The war was going badly, and many Senators were very concerned about the reaction of China, with the U.S. battling close to its border in Asia. Concerns like that spurred Senator Kennedy to become more deeply involved in foreign policy issues. Military adventures were jeopardizing the stability of the country—certainly the economy—and needlessly endangering lives. He felt we had been too quick to rush to war. The antiwar movement moved into high gear in 1968. The Democratic Convention was a disaster that year, and Kennedy was firmly against the war after the ’68 election. 

RFK felt the same way about the war. President Kennedy had begun the U.S. military presence in early 1960, just before the end of the administration. I think that ’63 was the first time they sent combat brigades to help, but that step was not a wholesale invasion of Vietnam, nor was it like the invasion of Iraq. There are ways to calibrate the use of force, but to go from basically a standing start to a massive escalation, unless there was an absolutely incontrovertible case for it, he felt that we ought to have paused before committing the country to that. 

People who had been through the Gulf of Tonkin debate were more than ready to pause and ask why. When they didn’t get a good answer for going into Iraq, they voted against the resolution. There was nowhere near a majority, but it still was a substantial minority against it. Those issues were so inflammatory and so widespread across the country that you couldn’t be a Senator and not somehow be involved in the such issues. 

Senator Kennedy, because of his jurisdiction over refugees at that time, had another reason to be involved. There were clearly massive problems with refugees in Southeast Asia. In 1965, Kennedy had become chairman of the Refugee Subcommittee. The military strategy was producing a refugee crisis that we had to deal with. He was involved in the war from that standpoint from then on. By 1969 the battle lines were pretty clearly drawn. Nixon wanted to continue the Johnson policy, but many Democrats said it was time to get out. That was the basis of [George] McGovern’s ’72 campaign, and Kennedy strongly supported McGovern. 

The escalation into Vietnam also drove the Senator’s decision to get involved in the ABM issue. There was an escalation of military issues without a sense that Congress was as involved as it should have been under the Constitution. There were enormous consequences for the country, and he felt that he had an obligation to be more active in these issues. When Reagan became President, there was an even greater militaristic approach to foreign policy. 

The Senate put Kennedy on the Armed Services Committee in 1983, at the beginning of that Congress, just as the freeze issue was heating up. I think they recognized that Kennedy would be a player in these defense-buildup issues. He couldn’t always put as much concentration into the details of the Armed Services Committee issues that he did on education, health, jobs, labor, and civil rights issues. It was a third major committee assignment, but in those years it was very important. 

He has kept up his involvement. He has been the Seapower Subcommittee chairman, for example, and he spends a lot of time working with the Navy. I think he still enjoys being part of that defense/Armed Services Committee network. But during those years of Star Wars, the ABM, and the freeze movement, foreign policy was pretty much number one on the plate of Congress, and he was part of that.

There is a theme that runs through this, right up to the Iraq War and the announcement of a preemptive war doctrine, which must have been—

Yes, that was a huge controversy.

Does the Senator recognize the concept of a just war?

Oh, yes, I think so. But that concept didn’t mean that a war could be a first resort, rather than a last resort. We hadn’t been faced with a situation like Pearl Harbor, for example. Arguably the [Osama] bin Laden 9/11 attack was comparable. There was a unanimous feeling in the Senate, and Kennedy wasn’t questioning the judgment to go after bin Laden. But there was a huge question of whether to go into Iraq on the theory that Iraq might become nuclear, and might somehow be supporting bin Laden. A huge crisis has developed because of Iraq. We’re in there and the question now is how do we get out? 

Kennedy still feels very strongly that it was a huge mistake to go in, and we’re paying a large price for having done it. He served in the Army for a couple of years, and he respects our Armed Forces. He feels that you can’t be a Senator and not be involved in those huge issues that come along. He’s not just a domestic-issues Senator. Unfortunately, he has always been in a position of restraint to a President who seems to be overreaching. That’s part of the checks and balances that he sees as the role of a Senator. 

He likes those issues. He likes almost any issue actually, and he loves to have a plate full of them, but he was especially interested in getting involved in the ABM issue and in the nuclear-freeze issue, to make sure that it was debated fully in Congress. He also wanted to be able to talk knowledgeably to his constituents in Massachusetts, especially those who were worried about the ABM system that was scheduled to be built there.

He is adept at finding areas of agreement between people who might otherwise disagree on everything. It strikes me that this is similar to his belief in what can be accomplished internationally by talking and negotiating.

There was a sense that he, in particular, would be able to do something. It wasn’t so much that he wanted to go into it because he could be successful. He hoped he would be, but he would have been involved no matter what. We’ve taken some defeats, and the progress is usually incremental on many of these issues. Because we raised a storm over ABM, it meant that other defense issues would have a better chance of being discussed rationally before they were acted on by the Administration rather than after a dubious policy began to be implemented.

How did the Armed Services establishment in the Senate take to his involvement in some of these issues?

I think they recognized, This is Ted Kennedy. It’s not as though we can slam the door on him. In fact, almost none of the Senators mind Senator Kennedy moving into an area that they regard as their jurisdiction. There’s plenty of press attention and credit to go around. I think he is treated as sui generis in the Senate. There’s a lot of squabbling over committee jurisdiction, but it hasn’t been a problem. We saw that, for example, with airline deregulation.

I happened to see a few weeks ago a new biography on Senator Howard Cannon that came out about his work and his years in the Senate. I read through the parts on Kennedy and airline deregulation, which was a challenge to Cannon as Chairman of the Commerce Committee, and Cannon welcomed it. Whatever he felt privately about it, he thought that Kennedy was contributing something. Kennedy apparently wakened an interest of Cannon’s, who thought that regulation of the airlines had gone too far in those years, and what were we going to do about it? 

Here came Ted Kennedy with a staff member on the issue, Steve Breyer, who was a scholar from Harvard and who knew a lot about deregulation in general and the airline industry in particular, and what we could do about it. They wound up working very well together on the issue. It went fairly easily through the Commerce Committee in 1978. There were some pitfalls here and there. For an encore they deregulated the trucking industry two years later. 

Trucking was a bit of a tougher one to crack, wasn’t it?

It was, and Kennedy wasn’t as involved in that as Cannon was. Cannon had already done a good deal of work on that, but Kennedy agreed with what he was trying to do. From basically ’75 to ’78, Kennedy devoted most of his effort on economic-regulation issues to the airline issue. Cannon was working on deregulation aspects that affected other industries in the Commerce Committee as well, and trucking was a possible candidate. When Kennedy picked up airlines, Cannon readily agreed that it deserved reform. Let’s go at this, and let’s get that done. Once that was done, they turned right to trucking, and Cannon laid the groundwork effectively for that. We picked up the mantle of reform there too. 

It was surprising that at the end of the [Jimmy] Carter administration, those two major, Congress-led initiatives of major importance for two big industries went through. We had a lot of support from people at the CAB [Civil Aeronautics Board], for example on airline deregulation, and also from the ICC [Interstate Commerce Commission] on the trucking industry. The economics profession, by and large, was very supportive about allowing more carriers in to participate about creating real competition for routes for the different carriers. 

The airlines had had an unjustified monopoly for decades through the CAB’s regulatory scheme as the industry was growing strong. We didn’t need more than a couple of evenings with Steve Breyer to know that there was a huge potential for action by Congress. People were looking and generally saying, Why hasn’t anybody done this before? It obviously needs to be done. Whenever you hear people accusing Ted Kennedy of big government, ask them, Have you heard about airline deregulation?

Or of being antibusiness.

Yes. I think Kennedy’s view basically is, You can go too far left or too far right. At some point, the free markets can’t be totally, absolutely free. I think I mentioned before that he likes the saying on the diploma from Harvard, Our laws are the wise restraints that make us free. And I think the question is, how wise are your restraints? Are they making you free, or are they preventing free markets from functioning as they should? That’s the huge question right now for the next Congress in terms of the financial markets.

I suppose this also figured as an element in the health care debate, getting the market to work.

That has been a contentious issue all along. He fought for it, and had been at odds with the FDA [Food and Drug administration]. This will be a huge issue as health reform heats up next year. 

Kennedy doesn’t subscribe to the Republican philosophy of letting the free markets work on health care. Patients can’t compare health care as if they were buying something in a hardware store. There has to be a way to make sure that people have access to good care and that it’s affordable. Competition doesn’t work well. To some extent it does, through the insurance industry, but they want to take it beyond the pale. 

Republicans make the strong argument, year in and year out, We have to let the markets work on health care. When we ask them about Medicare, they say, Senior citizens are different. Nobody wants to challenge Medicare. I think Senator Kennedy wishes that he’d been in the [Franklin D.] Roosevelt Cabinet so that they wouldn’t have taken on only Social Security. They would have picked up Medicare in the ’30s and not have waited until the ’60s.

If they had, we wouldn’t be where we are today.

Right. He went into that a little bit. He had some historians come to the house one night to talk about the Roosevelt philosophy. Why didn’t they do more on health care? In some ways it was the same kind of question that Johnson faced in ’65: how far can you go and not expect to run into a stone wall in Congress? I think that Roosevelt, for all his skill and affection in Congress, made the decision that creating Social Security was a huge enough change and that we shouldn’t try to do the same thing for the health care system. 

By the time World War II was over, the ’50s began to show the problems with the health care system, especially for senior citizens. There was a huge crisis. It became clear that America was a healthy, young country, but we had people in their 50s, 60s, and on up who simply could not get adequate health care. Medicare, with Johnson’s landslide in ’64, was a fait accompli in ’65. We hope that health care for everybody else will be a result of the Obama tsunami.

The American Medical Association was, way back in Roosevelt’s time, in favor of a social-insurance policy, which provided Social Security and many other things, but it had turned.

Yes, intensely.

It turned intensely the other way on socialized medicine. Is that still alive?

Far less. I think it represents a line in the sense that there won’t be Medicare for all. They won’t take Medicare as the model, but there will be enough alternative ways of guaranteeing people health care. Maybe as a last resort you could buy the same health care that members of Congress get from the government, a sort of Medicare through Congress. The AMA [American Medical Association] is not as opposed as they once were, but their opposition is still strong. That hit us in 1969, the intense opposition from the American Medical Association to any national health-insurance program, and they had enormous clout. 

Later on, it was the insurance industry, wasn’t it?

Oh, yes, the insurance industry definitely has picked up that too.

Once there is a large, established system of private insurance.

They filled in as the AMA was beginning to retreat from its all-out opposition, yes.

You mentioned a few things last time that we didn’t finish discussing.

We started to talk a little bit about the Family Practice of Medicine Act in 1970. That was another opportunity that the Senator saw. He was pushing the act as a member of the Health Subcommittee. He wasn’t even chairman on health issues in that Congress. We thought that one of the problems in the health care system was that medical schools were not teaching the family practice of medicine. In other words, they were training more specialists than general practitioners. So it seemed like an obvious thing to do, to offer federal grants to medical schools to train student physicians in the practice of family medicine. It began to gather speed in 1970.

You might say something about the concept of family medicine. Was it close to what would be called a GP, a general practitioner?

Yes, that’s right, a family doctor. You would have someone to go to their family doctor instead of to the emergency room at a hospital. When you felt a cold coming on, you didn’t have to go for emergency treatment. It saved money, but there was also a concern, particularly as the war on cancer began to gather speed in 1970. It passed in ’71, after this, but the revolution in medical care and science was clearly beginning to accelerate. 

Kennedy was a strong supporter of medical research, but he felt it shouldn’t take place at the expense of family medicine. Medicine was drifting much more toward research and toward training physicians in specialized areas of medicine, but was neglecting the practice of family medicine. As Kennedy was beginning to learn the ropes of health care, this was an issue that leapt out. Why not encourage medical schools to have a better rounded curriculum and to train young doctors in things that matter to family care—GPs, family practice of medicine? 

It had wide support in both the Senate and the House, but for some reason the Nixon administration was opposed to it, partly for budget reasons apparently, but that didn’t make any sense to Senator Kennedy. It was a bill that we thought, once we showed the administration that we had broad support for it, we could convince them to let become law, even if he didn’t want to sign it. But as it got close to the end of that Congress, it turned out that we couldn’t get it finished before the election of 1970. 

When Congress came back after Thanksgiving for a lame-duck session, we immediately picked up on the Family Practice of Medicine Act and said, We can at least complete this. It’s ready to go. It passed Congress by an overwhelming majority, with only a handful of negative votes in the House and Senate. It was a fait accompli that Nixon’s veto would be overridden, and our expectation was that Nixon would probably let it become law without a signature. 

To make a long story short, as we got to the end of the road in Congress and got the Senate version, which was identical to the House bill, and sent it to the White House, Congress was about to recess for a five-day Christmas break. They were soon coming back into session, but they weren’t able to get the bill to the President so that his 10-day period to sign it would expire while Congress was in session and not during this brief recess. 

Nixon’s lawyers told him, You said you’d veto this bill, and you can give it a pocket veto. If the 10 days expire and they’re not in final session, you can’t return it to Congress as the Constitution requires. You don’t have to return it to Congress, and there is no chance for them to override the pocket veto. 

Kennedy and many other Democrats were infuriated that Nixon would do that. It had never been done before. It was totally unprecedented for a President to veto a piece of legislation and claim a pocket veto, on the rationale that Congress happened to be in a brief recess on the day the 10-day period for signing the bill had expired. Typically a pocket veto applies for long recesses at the end of a Congress. At the beginning of the Republic, for example, 200 years ago, when Congress finished a session, they’d adjourn in June and come back in March. They didn’t want to be in session the cold winter or in the very hot summer.

They were climate wise.

They got used to the fact that the President wouldn’t sign some of these bills. The Constitution had included that a bill could become law without the President’s signature if the 10-day period had expired and Congress was in session. But if Congress wasn’t in session, then the President could veto it by putting it in his pocket, so called. That’s why they called it a pocket veto: he didn’t have to send it back to Congress. 

Over the years, the pocket veto had been widely used after the first and second sessions of a Congress. These are the two periods when a session of Congress adjourns, and there is usually a long period before the new session begins. Even today it’s typically a month or so. In our view, there is still some doubt about whether the pocket veto should be valid during the recess at the end of a first session. We felt it should just apply at the end of a Congress, when  a new Congress is coming in. A pocket veto should not be allowed if the Congress that passed the bill is coming back into session, even if the adjournment is quite long. 

That’s still controversial, and it may have to be settled in court, but no one we talked to thought that a five-day veto made any sense. The law school scholars we contacted said, It’s outrageous. The question is, how do you challenge it? Kennedy said, Can’t I just go to court? I’m the one who has been damaged by this. It’s my bill. I introduced this bill, and the President has treated it like a piece of trash. That’s wrong, and I ought to be able, based on the injury to me and to my vote in the Senate, to take this to court.

Kennedy got briefed by outside lawyers, and he filed a complaint in the court, Kennedy against [Arthur] Sampson, who was the Administration official who was supposed to print laws in the statute books. Kennedy argued the case himself in the district court, and the district court agreed with his reasoning. Then the administration took it to the Court of Appeals for the District of Columbia, and that court also upheld the statute. The administration didn’t try to take it further, to the Supreme Court, I suspect, because they felt they might lose there too. So the bill finally became law in 1974.

It took a long time to get it through the courts.

It took quite a while, but I think it established a basic principle, and Kennedy argued the case in both the district court and the court of appeals. He hadn’t done something like that since moot court at Virginia Law School. [laughter] He spent a lot of time preparing the case, and he loved doing it. He was in his element.

Was John Tunney in there with him?

No.

As in the moot court.

I think his colleagues in the Senate were impressed—Senators like [Robert] Byrd, who recognized that Kennedy was defending the role of the Senate under the Constitution. With things like that, if the idea is there, if it’s something Kennedy is involved in, and if he sees a way to make a difference on the issue in an innovative way, like taking it to court himself, he will.

A few years later, in a separate case, the Supreme Court ruled that Senators did not have standing to sue in cases involving legislation they’d worked on. That result didn’t affect the case that Senator Kennedy had argued. But it changed the law on standing for the future. The Supreme Court seemed to be very reluctant to have members of Congress rushing to court. And they didn’t want to face Senators in an oral argument. So now, Senators don’t have standing when a bill of theirs has been mistreated in some way. 

The other thing I think we talked about was the D.C. voting representation in Congress. Because it was a voting-rights issue, Kennedy was particularly interested in it. The movement was beginning in the District of Columbia that it was unfair for the District to have no voting representation in Congress, even though it had a larger population than many states. The District was entitled, they felt, to at least two members of Congress and two Senators. How could a democracy deny the citizens of the nation’s capital a voice in the issues? That resonated with Senator Kennedy. It certainly did not resonate with states around the country, but members of Congress who were working here in D.C., I think, were torn. 

Senator Kennedy was approached by Walter Fauntroy, the non-voting delegate for the District in the House of Representatives, who was a prominent D.C. citizen and who was then serving in the House. He got together with Kennedy and said, I hear you’re sympathetic to what I’m trying to do, Ted, and I think we should introduce legislation to amend the Constitution to grant D.C. representation in the Senate as if it were a state, meaning the District would have two Senators and the census would determine how many Representatives the District would be entitled to. It would be either one or two, based on the population, which was changing over the years. Kennedy said, Fine, let’s do that. I like that. I’m all for it. Obviously, since D.C. is a heavily minority city, Kennedy was especially interested in the issue. 

So in 1977, they introduced this legislation, and they managed, over a period of several months, with a lot of calls to Senators and House members and a series of meetings to explain and justify it, they gave the bill a good deal of traction. It got to the point where Kennedy felt we could bring it to a vote. The House Judiciary Committee and the Senate Judiciary Committee sent it to the chambers for the Senate and House to vote on, and in 1978 it passed by more than the two-thirds vote that was necessary to pass a constitutional amendment. 

They then sent it to the states to be ratified. We were concerned, because we had been hearing it from members we talked to, that their constituents—certainly those from Republican-leaning states—didn’t like the idea of two more obviously Democratic members of the House and two new Democratic Senators coming in. Plus there was a certain pride in the states that didn’t want an entity that wasn’t a state to be treated as though it were a state in Congress. 

The amendment didn’t get much traction in the states. It wound up getting 13 states to ratify it, when we needed three-quarters of the states to ratify it in order to make it a viable amendment, which was hopeless. When it died as a constitutional amendment, it gave rise to what became a D.C.-statehood bill, which had much less success in Congress, because members weren’t willing to make D.C. a state. Now, a compromise is being pushed to allow the D.C. delegate to have a full vote in the House of Representatives. Right now, the delegate can vote only in committees.

That can be done by the House membership.

No, it has to be done by statute. The compromise would also create an additional seat in the House for whatever state was next in line. According to census, that state would be Utah, which would probably send a Republican to Congress. The idea is that the House, at least, is willing to consider passing a bill that would give D.C. a voting member of the House, as long as a new Republican seat is created to neutralize the D.C. member’s Democratic vote. That’s the compromise they’re working on, but it still leaves 100 Senators, with no representation for D.C. With the Obama administration, I’m sure the District is thinking hard about what it can do to correct that. They see new life in the coming year.

I don’t see any room on his agenda to do this right now.

It’s an uphill fight, but it’s one of those issues that everybody understands when you bring it up for a vote. It doesn’t take a lot of homework because they’ve been through it before. It’s an issue that the Senator picked up out of the blue—well, not out of the blue in terms of his overall interests, but the Massachusetts Senator decided that D.C. is being treated unfairly. He said he was tired of seeing those license plates that say, Taxation Without Representation, on them, which D.C. started putting on its license plates.

Do you want to move to the Clinton years, or to [George H.W.] Bush and Clinton? Are we through with Reagan?

Yes, I think so. 

Health care gets not much of anywhere in Reagan’s time, is that right?

It was all relatively incremental steps. We didn’t have a chance for anything big. We kept raising the flag on comprehensive health insurance, health insurance for all, but there wasn’t enough support for it to make progress. I think the best hope we had for it was in ’93, when the Clinton administration came in.

This was not on the Bush administration’s agenda either.

No. It was like pulling teeth with the Bush administration. There were incremental steps that we could take on the Children’s Health Insurance Program, and we spent a lot of effort working on things like that. But I think the Senator’s biggest disappointment was the failure of the Clinton health-reform initiative.

Talk about that, because the Democrats were back in the White House, had a comfortable majority in Congress, and had so many in the House. Were Kennedy and others preparing, getting a coalition together? I’m thinking about the [Claude] Pepper Commission, where the idea of play-or-pay came up. It was divided on that subject. I don’t think they could come to a conclusion. But wasn’t there an effort to organize a coalition around a concept?

There was an effort made. It didn’t take shape until the inauguration. There had been some planning behind the scenes, but not nearly enough. We learned from that lesson that you need to be prepared at the beginning.

It was not like it is now.

There was a feeling that the Clinton administration was serious about it and was genuinely committed to it. There was a lot of involvement of Senate offices and House offices, with Hillary [Clinton], and the Task Force they put together, and it certainly seemed that we were doing the best we could at the time. I think it’s clear in hindsight that we wasted a lot of time in bringing it forward sooner. Too much time elapsed, when there was an initial period when it might have moved—or at least it could have gotten off the ground fairly quickly, in the sense that hearings would have been held on a specific plan and we would have been laying the groundwork for a timetable for action. By the fall of that year, when it was first unveiled, it was too late.

Going back to even before the inauguration, I assume that people were approached during the transition, if not earlier, about health care in order to get them interested in getting major legislation through. They must have been in touch with Clinton at least.

Yes, there’s no question. There was a great deal of discussion and thought about it.

And Senator Kennedy was probably the top person at the Capitol, along with others, who was interested in the priority, and yet the President decided to appoint Hillary. Is that the right way of putting it? I’m thinking that Clinton wouldn’t have had the option of saying, Okay, this is what I’ll go with, so run with it, to the people who were already on the scene, but he seems to have started a new process to come up with something.

There was a lot of angst over how to frame the debate. There was a general understanding that the kind of comprehensive national health care program that Senator Kennedy had been championing—basically making Medicare available to everyone, for example—wasn’t going to fly because the Congress was too narrowly divided. We didn’t have that strong a majority. There was an understanding that we wanted to come as close to that as we could, but we had to develop something that would involve the private sector. That put us on a slower trajectory than if we had just had a plan that was ready to go, that supporters were convinced was the best vehicle to move forward with the idea. We wanted to move more quickly, but at the same time, we wanted to do it right rather than fast. 

This is all hindsight. There was not that much concern at the time, in these early weeks. The Clinton transition basically began at the inauguration, and there was a lot of interest in a lot of other issues. We were working on education issues, labor issues, and other things, but we felt health care was under control, and it was being framed as, We’ll soon be ready to go with this, and we’ll all push hard for it.

Did you have a sense that the level of support or the coalition that would support something significant moving forward, whether it was this plan or that plan, was in place?

We had to build again as well. Because the longstanding champions of basically a government-run health program for everyone had lost enough altitude that even though there was a new Democratic administration with a reasonably strong Democratic Congress, it wasn’t as though this was a repeat of Medicare, where we basically had an overwhelming majority. In particular, you could see [Newt] Gingrich coming. 

The minority was becoming more vociferous. They seized on Clinton and his so-called Third Way approach as something that would undercut the liberal Democratic majority in Congress. The Republicans were interested in a third way too, because that meant that they wouldn’t have to accept the liberal way, even though they couldn’t get their way. That third way approach was a philosophy that worked for Clinton but didn’t necessarily work for health care, in terms of us being able to agree on a program. 

We recognized that our traditional approach to health care simply wasn’t going to be feasible with a big, knockdown, drag-out fight. One of the arguments was, Let’s bring it up. We’ll force it to a vote. The Republicans will vote against it. It will hurt them for the ’94 election. Ninety-four turned out the opposite way because of the way the country was moving. There was a sense that we were on the same page, and we were trying to come up with a sort of Third Way plan ourselves that would accomplish our goal but that would also have reasonable provisions for the insurance industry and the private-sector that wouldn’t undercut patients. That was the big debate. 

It was a major challenge to put that together, and the long delay was perhaps inevitable. It hurt us in the end. Our Health Subcommittee was deeply involved. I was involved in a fair amount of strategizing on that, but for a good, battle-by-battle debate over who was doing what and when, it makes sense to talk to David Nexon and our other health staff.

Yes.

It was disappointing in the end that when we got it all together, ready to bring to the Senate floor, it still met intense opposition in ’93. As we began to consider how to proceed, the opposition seemed sufficiently strong that we weren’t sure we would have the votes to overcome a filibuster. 

The majority leader was George Mitchell. His judgment, which carried the day, basically was, We’re facing a revolt by the Republican right. We won’t have an easy time even getting this moderate health-reform proposal through. There’s no chance of getting a comprehensive-reform proposal through the Senate. He would tell Kennedy and all of our champions of health reform, My feeling is that the best alternative now is not to bring it to a vote, because that would be too devastating. If we lose the vote, it will be a severe setback for all of our Democratic priorities.

Bring it to a vote, meaning the Clinton plan.

Meaning the Clinton plan, right. This was the huge issue that developed: are we simply going to fold our tent and move on to other priorities? Mitchell felt that he could explain that we should delay it, and it would just be lost in the shuffle. In the end we didn’t succeed, whatever the goal was. By the time the ’94 elections came along, the country was ready to throw the Democrats out, and they did. I think it violated Senator Kennedy’s basic principles that you go down fighting, and you don’t fold your tent when you’ve put so much effort into something. He would much rather—and he certainly still feels this way—have taken a negative vote than to have taken no vote and just walked away from the battle. 

Did the President get cold feet too?

I think he was willing to accept the judgment of the Senate leader that this was best, all things considered, for Democrats in the Senate and House, that it would be too big a defeat to move forward. We’ll continue to work on it, Mr. President. We’ll try to find a way that will bring more people on board, but we think it would be a mistake to bring it up and have it defeated by the Senate. Members were already beginning to feel angst about what would happen in the next election. Many of us thought that it would be an even more serious setback for the Clinton administration if Mitchell were able to convince the President that his signature initiative would be repudiated by Congress, and that it shouldn’t be moved forward. I wasn’t in on a lot of these political conversations about what should happen, but that seemed to be the bottom line. 

I think we were frustrated—certainly all of the staff members were. With all of the effort that had gone into it, we at least wanted to see a vote. We’re used to, frankly, bringing issues to the floor to air them, and when the outcome is far from certain, even if we don’t expect to win, we raise it because we feel that it’s an important issue and that people should know where their Senators stand on it.

The President didn’t put this at the top of his agenda, did he?

No. It was high on his agenda in terms of getting a plan prepared, but it wasn’t as though he was pushing to get it ready. I think he was basically letting the experts who were working with Hillary and with Congress come up with a plan that they thought would garner a consensus. It was very difficult, with something as huge as health care, to put together. It’s not something you just dream up overnight or phase in. 

There was some talk about phasing it in by age groups, which might have been easier if they had done it with Medicare, for example. There was an alternative of, for example, If you’re eligible for Medicare at 65, then why not make it eligible at 60 or even 55? That was anathema to Republicans too. They basically said, No more Medicare. We recognize Medicare as a third rail, and we won’t build another third rail beside it. 

It’s remarkable. We never understood the psychology or the dynamics that made Medicare so popular and yet prevented it from being popular enough for Congress to extend. People were keeping score of the uninsured population during those years. Year after year, you would see the number rising—tens of millions of people who had no access to health care and who couldn’t afford health insurance. 

The Republicans would argue, We’ve taken care of the people who need it most at the elder end and who need it most at the poverty end with Medicaid and Medicare. We’re talking now about the great middle class of the country. We’d like to work out a plan with you, but we’re not going to buy your Medicare for all. We had trouble reaching a consensus on a public/private-type plan that we could all work together on. Nothing jelled.

Clinton is often faulted for his strategy in developing a plan. Some people fault him very much. Some people faulted him for spending too much time on details and substance, and too little time on getting people aboard. Comment on that.

That’s more of a hindsight critique. We were talking to the President. He seemed to be interested in pushing the issue. Everything seemed to be getting done that we thought could be done. We knew that it was difficult to produce a plan that would bring together enough moderate Republicans to have a good chance of passing it in the Senate. That was a litmus test. They didn’t want to send something up to the House, have turmoil there, have it squeak through, and then have the Senate sink it. There’s an old JFK phrase: Victory has a thousand fathers, and defeat is an orphan. The orphan in this case was President Clinton, but there were others too.

And the Republicans, you felt, at that stage, were willing. Unlike after ’94, as I understand, they didn’t want to do anything on health care.

Right.

But you felt that it could have drawn people from both sides of the aisle.

We felt that it would have been better, especially given what happened. It was certainly against Senator Kennedy’s instinct not to bring it up after all of this prelude, to have a dramatic vote, and to see where Senators lined up. I think he always felt basically, deep down, that health care was an important enough issue that if you got it on the Senate floor and the country saw that it would help so many millions of people, it would be difficult for members to explain to their constituents why they were against what seemed to be a reasonable health-care plan. Unfortunately, the TV ads opposing it—such as the Harry and Louise ad—were devastating. That was a new dimension in Senate debate, to have it waged as though it were a political campaign. I don’t know whether more money has ever been devoted to another issue in partisan advertising as there was then.

These were from people who had financial interests?

Yes. They were well-organized. They were raising funds from the insurance industry and from others. We didn’t think that it was making a lot of difference until we began to hear Harry and Louise and to see them on the late-night shows.

Scaring everybody to death. It’s too complicated, or, We’re going to lose something here, and they’re going to tell us what doctor we can use. That was the main message you were hearing out in the sticks?

Yes. Using the sophisticated techniques of campaigning, they were able to saturate the airwaves with their negative ads, and we didn’t have interest groups that could afford to combat them effectively. So the other side basically had an open season on us, and that hurt a lot. As that advertising was heating up, it was influencing the leadership’s decision that We’re seeing enough of this Harry and Louise thing.

Was that from Haynes Johnson and others, who had written, calling this a failure? Was this a political failure?

We thought about that a fair amount. It didn’t get very far, but there was some serious thought. Is our divided political system able to function well enough to deal with something like this? Why is it that parliamentary democracies are able to enact their own health care system? They’re all systems that Republicans would say no to, but at least you don’t have to get something through opposing legislative institutions in order to pass a law. 

There was talk to the point where members were saying, We have colleagues asking us whether we should introduce a proposal to change the framework of Congress. If we win a majority in a parliament, we can control the debate. We can’t allow this divided government to sink the country. It got pretty passionate, but it subsided. There was a sense that we were not all of a sudden going to upend two centuries of American history. 

In this new political era, since JFK basically, but particularly since the rise of the modern conservative movement with Reagan, it has been a different sort of Congress. The partisanship has been much more intense, and the collegiality has suffered. You don’t see Republicans and Democrats wrapping their arms around each other nearly as much as you did before, when there was a sense that they could work together. It’s more combative. In the end, maybe two strongly opposing sides can reach the best results—but not always. This will be another good test for the Obama administration. With the head start he has, can he successfully negotiate the path ahead?

This is a good time to talk about how legislating in the House and Senate has changed over the time, with reference to what you were just saying. From your standpoint and the Senator’s standpoint, was there a point at which you could say, This was the beginning of polarization and the decline of collegiality and the willingness to negotiate or compromise? Did it start with the rise of the conservative movement during the Reagan administration?

That’s where I would say it became obvious what was happening. There was not a substantial archconservative movement in the Senate until the Reagan administration.

Not with Nixon?

No. Nixon was a moderate Republican. Nixon was the end of that Republican era. There were still sharp differences, obviously, in ideology.

[Dwight D.] Eisenhower had been a moderate Republican.

Although with the moderate Republican Congress in those days. I wasn’t here then, but I’m not aware that the divisions were so intense.

Well, there was the old [William] Taft wing, but it was defeated. I’m talking about Eisenhower as a moderate. Of course you had the Dixiecrat movement over there.

The biggest change in the Senate, certainly since I’ve been here, has been in the South, with the old segregation Democrats being replaced by Republicans, basically. We also used to have Republican and Democratic leaders who were not far apart, such as Mike Mansfield and Everett Dirksen. They were colleagues, basically—they saw eye to eye on many things. The Mansfield years in the Senate were not as contentious as they became after he stepped down and the Carter administration came in. 

It has been a new Senate since the rise of Republicans in the South in the Senate. The more contentious, conservative Republican movement was beginning to take shape then. It blossomed with the Reagan administration in 1980. There was a clear turn toward a very divisive Senate, certainly much less of the old Mansfield-Dirksen, reach-across-the-aisle philosophy. It became, Let’s unify our party and take it to the opposition. That attitude began with the Reagan administration.

These were the new Republicans who came in with the 1980 election?

Yes, beginning with Reagan.

So this didn’t affect the House so much, I guess.

No, not nearly so much the House, because the House still had a solid Democratic majority, although it was closing. When I first came to the Senate, I think it was 68 to 32, Democrats to Republicans. That was at the end of the Johnson administration. A lot of those Democrats were conservative southern Democrats, which meant that there were big fights over civil rights legislation. But on other legislation, there was basically a moderate-to-liberal majority on most social programs.

Kennedy’s early experience in the Senate, his introduction to the Congress, was basically with the Great Society. He certainly picked up that mantle in the sense that, We won’t neglect low-income or hard-pressed families, people without health care, and people who can’t afford health insurance. All those issues that soon became possible to act on in Congress were there for Senator Kennedy to pick up, particularly since he was on the Labor Committee. I think he relished that. Jobs, education, and health care has been his mantra ever since he came to the Senate, with civil rights too, of course. 

It blossomed in the ’60s, when we passed the Great Society legislation. It was all part of his liberal agenda, speaking for working families through unions and through the Labor Committee. Health care, obviously, was the big one. He made it his signature issue from the beginning, thinking that yes, this is the time, in 1969, when he first proposed national health insurance. It’s 40 years later and maybe it will at last be enacted. But that doesn’t mean that he hasn’t deeply involved himself and enjoyed working on all sorts of health care issues. 

It’s not just accessibility and affordability of insurance that he has worked on, but also research and prevention. He’s open to any ideas in health care, and he loves it. We’ve had a great health staff over the years, and he has benefited from that, and so has the country, whether it’s the disability community or the low-income community or the individual disease groups. He leaped to the defense of Nixon’s war on cancer, although there were clear issues that was resolved. It’s ironic now, but he’s obviously personally benefiting from the discoveries made in the war on cancer over the last 30 years. He just wishes that they had come a little more rapidly.

Yes. So the so-called Reagan revolution—

It began to divide.

You saw it in the Executive. You saw it in the new, more aggressive posture in foreign affairs, and it was manifested in domestic affairs in all kinds of ways. But you’re saying that the effect was already palpable in the Senate, not so much in the House. Did that continue even after the Democrats won the Senate back in Reagan’s second term?

Yes, I think so.

So it was one of those things that didn’t go away.

It took a sharp turn to the right, and then it came part way back. It was still very contentious, but we were glad to have the majority back, because it made such a huge difference. But at the same time, we could see that it was a different Senate, because the partisanship hadn’t gone away. The balance may have changed, but the intensity of it continued to grow. It has reached a crescendo in recent years with the increased use of the filibuster and cloture petitions to stop obstruction in the Senate—more than ever in this past Congress, for example. 

The Senate feels more reluctant to find a genuine compromise, to accept half a loaf, rather than keep at it and try to extract the last pound of flesh from the other side. It’s less of people of goodwill sitting down and saying, I’ll give up this if you give up that. It’s more of people fighting to the last inch of ground, like a Civil War battle almost. You hear them describe it as, We’re going to fight hard to keep every last inch of territory. We may have to yield in the end and find some compromise, but it’s a lot more difficult to reach compromises now than it was 20 years ago.

Harder to find allies.

On the other side, yes, and it’s rare. There’s certainly an attitude that we’ve recognized, without naming any names, but there are Republicans who let us know, I can’t do something with you, Ted. I’ll lose something over here if I do that. It doesn’t happen often, but it’s out there. People think twice on the Republican side. You have to be a fairly senior and secure Republican, like Orrin Hatch, for example, who was around in the old days too.

So you don’t have to run your continuous campaign on the Senate floor.

Right. If you were elected by a narrow margin, you may think twice before you sign on with Senator Kennedy, unless we’re reaching out on something that we know they’re interested in. There’s an effort to find people who have already broken with their party on particular issues. Even then, though, if they want to do something with Senator Kennedy, they know they’ll be rubbing salt in the wound with their leadership, so it’s difficult. At the same time, there are days when Senator Kennedy can get along beautifully with Trent Lott. They exchange paintings, things like that.

But not with Rick Santorum, I don’t think.

Not so much, no. But it’s always congenial on the Senate floor. There are some Senators who are either not on our wavelength or are very unlikely to be, but we reach out to them anyway. Every once in a while there’s a bit of a surprise. With [John] McCain, nobody was surprised on immigration, for example. Unfortunately he moved back, so we don’t know where he is anymore, but that’s typical. Today’s victory may come undone tomorrow unless you’ve nailed it down somehow.

Was there any compensatory gain in getting Democratic people together on issues as the Republicans became polarized? Was the same thing happening with the Democrats? Was it difficult to find sufficient allies on the Democratic side for the Senator?

I think not, by and large. The partisanship was across party lines. It didn’t so much affect things within the parties. There might have been some hesitation from a Senator who was up for reelection, but typically a Senator is free to do what he wants for four years. He can be his own man for the first four years, and then he needs to think a bit, If I do this, what happens? Will my opponent make something of it? We haven’t often found Democratic colleagues who resist us. They seem to want to work with Senator Kennedy. 

Other things being equal—and they’re less equal than they used to be—I think that almost any Republican Senator would welcome a chance to have Senator Kennedy as an ally on an issue. I think it cements the likelihood that he’ll make progress. They recognize that Ted Kennedy is a big boost for an issue if he comes onboard. In the same way, Kennedy feels that when we work with a conservative Republican, such as Nancy Kassebaum or Orrin Hatch, it’s especially helpful for passing legislation. We had Mark Hatfield with us in the early 1980s on the nuclear weapons freeze issue. It was much easier in those days. There were more Senators like Hatfield in the Senate.

Clinton also, there was going to be a stimulus package, a bill, wasn’t there?

Right.

What happened there?

I think their plan basically was to push that.

They dropped it, didn’t they?

It ran into too much difficulty.

That had jobs, a lot of things that Kennedy was interested in.

Yes, but not to the same degree as health care by any extent.

Oh, no. But I’m saying, he didn’t get health care.

He was certainly very reluctant to second-guess Clinton’s decisions or strategy. I think he recognized that in a very difficult year, Clinton had run a very good campaign. He liked Bill Clinton personally. Clinton was a charmer on almost anything, and the Senator wanted to be able to work with him. Clinton had very able advisors. A lot of them were friends of the Senator, people whom we knew. We had access to almost anybody in the administration. We were very much on the Clinton team, and we weren’t likely to second-guess most of his judgments. We’d urge him to do certain things, and he’d go out of his way on a few things that he had strong feelings about. The Breyer nomination to the Supreme Court in 1994 is an example. He leaned over backward to accommodate Senator Kennedy on that.

I got the sense that Clinton enjoyed Kennedy too.

Yes, I think so. They liked being around each other. That was also true of Reagan and Kennedy. I probably told you about the wonderful evening they had at Kennedy’s home in the ’80s.

Yes.

Kennedy says that Tip [Thomas P.] O’Neill used to say, We can argue until sundown, and then we can go out and have drinks together. It was that way with Reagan. The Senator liked Nancy Reagan too, very much. There were very few times that they were together like that, but Reagan paid a very nice tribute to President Kennedy by coming down for that library event. 

At the same time, the partisanship you were asking about certainly worked to our advantage in the case against [Robert] Bork. It wasn’t so much the partisanship as it was Kennedy’s philosophical opposition to Bork. But he felt intensely about it. He came out immediately in ’87, as soon as Reagan announced it, and said that the nomination shouldn’t go forward, and that he intended to oppose it strongly. The arguments he made were not intended to be partisan. People now cite that situation as an example of contributing to the polarization.

Poisonous. It poisoned the atmosphere.

There was shock and disbelief among the Republicans that this paragon of conservatism would be denied a seat on the Supreme Court. If Bork hadn’t fired Archibald Cox, he probably would have gotten the seat on the Supreme Court, but I think the firing made it too intense for Senator Kennedy. He certainly was philosophically against Bork. In the end we were able to put together a majority. Fortunately we had gotten the Senate back by then. We probably would have filibustered him, but we didn’t need to. 

The filibuster is becoming an increasingly powerful weapon of the opposition, whether by one person or more. How do you deal with that, if you could cite some examples? Has Kennedy ever used that weapon in this polarization?

There were times when we were the leader of it. We’ve certainly joined in and spoken strongly in defense of it whenever the Senate has done it. Democrats have been reluctant to do it. Certainly you’re reluctant to do it when you have the majority. You don’t filibuster your own leadership, but even when we were in the minority, it seemed almost counter instinctive for Democrats to filibuster. They’re here to legislate. They’re not here to oppose legislation.

 And yet, given the battle lines that are drawn, there are some areas where filibusters are more likely. The most common issues involve nominations. It’s often been a battle royal over Supreme Court nominations and to some extent for court of appeals seats as well. Because the Court is so narrowly divided, a single justice can make a huge difference. Both sides, therefore, don’t hesitate to try to use a filibuster to block a nomination to the Supreme Court. But in general, Kennedy has been a reluctant user of filibusters over the years. Partly, it’s his sense that it’s not what he was elected by the people to do. Although in many ways it is—to keep the bad from going through. But there ought to be a way, particularly on legislation, so that we don’t have to stonewall. 

Any piece of legislation that comes up, even though Democrats are filibustering it, has some good things about it. The Republicans sweeten it a little bit to try to persuade enough Democrats to come onboard, but they don’t succeed and they can’t get their 60 votes for cloture. Then there’s a question of whether there can be some further compromise. It then becomes awfully difficult because people think you’re selling out if you make a further offer after there has been a cloture vote. 

With the Republicans, having been in the minority longer and being more used to it, and with the Gingrich revolution in particular, the polarization took a much more intense turn, and that, I think, encouraged the use of the filibuster tactic by Republicans in the Senate too. Their tactic was to obstruct. They didn’t want to see the Democratic agenda make progress in the Senate. 

We always felt that a lot of the steam for the Senate Republican filibusters was generated in the House furnace. There certainly has been more intense use of filibusters since ’94 and ’95, when the Republican Congress first took over. Use of the filibuster became so excessive that it produced so-called Gangs of 12 or 14 or 16 moderates on both sides who would say, On this issue coming to the floor, we won’t support a filibuster from either side, or in particular, in the case of judicial nominations, they would say, We won’t support a filibuster against this judge if his nomination comes to the floor.

People are looking for a way around that. There’s enough concern about it that moderates on both sides of the aisle have decided they don’t want to be labeled as obstructionist Senators. It has certainly changed the atmosphere of the Senate. In effect, moderates are telling Senators on both sides, If you guys can’t reach an agreement, we won’t help you with a filibuster. There may be some truth to it—although it’s still too early to tell, because there haven’t been enough of these cases yet to test it—but they feel that by saying that, they force both sides back to the table to compromise some more, so that one side doesn’t lose and so that both sides can claim a step forward. 

The challenge in the Senate, when we passed incremental legislation, was to assess how much of a loaf was necessary on a major issue before you decided, It’s not enough. I’m going to vote against it. This is too tiny a step. We can’t take such a minor step. It’s a lot easier to filibuster when the other side is taking a backward step, but when Republicans are preventing you from offering, say, a strengthening amendment to a bill and they’re willing to bring something to the floor that is a tiny step forward, they will filibuster something that you would call half a step.

Can you give an example of that?

Nothing comes to mind. There is a lot of legislation where the image fits. A Senator finds a way to improve a bill that has been through the compromise factory and that has then been brought to the floor. All Democrats would be ready to support, for example, making a bill a little bit more liberal. To our way of thinking, this requires a small step, so we ought to support it. Why would they oppose that? But they do oppose it, and then the question is whether you’ll let the bill pass unamended. 

I don’t have a good example in mind, but I know the sort of thinking that goes on. Typically it comes from Senators who have been for the small bill, hoping that it could be improved on the floor, and then acquiescing and allowing the small bill to go forward if a filibuster would be used against any significant strengthening amendment. That’s basically because there is a consensus that at least it’s something and we can accomplish something.

For example, in Senator Kennedy’s earlier years in the Senate, there was a tradition that—on a defense bill, for example—if he felt that a bill was bad because it had something wrong—like, say, on something he objected to substantially—on Star Wars or something like that, where it was a huge mistake for the country to go in that direction—he might vote no. He’d vote no on the amendment and it would carry, and the bill would be strengthened in an adverse direction against you.

Then the question was, with that severe negative provision in the bill, do you vote for passage of the bill? The typical tradition in the Senate in the ’60s and early ’70s was yes, you vote for the bill. But then an attitude began in the ’70s, No, you just express your disagreement on amendment. If it’s fastened to the bill, then you vote against the bill. But then the argument came out, Wait a minute. Your vote against the bill means you think no defense at all would be better than a defense bill with this terrible provision in it. Of course that’s not true.

You’re not supporting our troops.

Yes, exactly. So there was an attitude of making your point, which a lot of constituents hear but which was very unpopular with the vast majority of people. Basically it was against your philosophy too because you didn’t mean that you were against everything in the bill. Now I think it’s much more accepted by liberal Democrats who used to have the attitude, If a major part of the bill is wrong, I’m voting against the whole bill. They don’t do that anymore. I cast my vote against that provision, but there are other provisions in the bill. I can’t be against the whole bill.

You can vote against a provision in a bill that authorizes the use of force overseas, and then vote against the whole bill if it still contains the provision. The President wants to go to war and you say no. You can take that issue to the country. That’s not a problem. That’s why they usually don’t try to wrap extensions of the authorization of the use of force into other bills. That’s why the current status of forces provision is running out in December, because they can’t get an extension in another bill, since members don’t want to have to vote for a bill that contains a bad provision like that. Democrats are sophisticated enough with their majorities in the committees to keep it out of other bills.

We’ve been talking about these right turns, hard line, with the rise of the conservative movement, or at least the empowerment of the move to conservatism. It didn’t start with Reagan. You had [Barry] Goldwater back then. There was one under Reagan that is perfectly manifest in judicial appointments, foreign affairs, and in the domestic posture, and it initiated a change in the Senate. Ideology seems to be coming in, making it more difficult and exacerbating the differences between people and reducing the willingness to move toward the center on issues. It seems as though the Reagan right turn would have petered out with Clinton and the new Democrats coming in, but it seems it didn’t. In ’94—

No, in ’94 it worsened.

It burst and exploded, at least in the House. Was that also true?

It was true in the Senate as well. It was not nearly as intense. I think the intensity in the House was due to the Gingrich factor. That was very polarizing at the time.

The Contract with America.

Yes. They were full of themselves basically. Waking up on Election Day ’94 and realizing what had happened—that blindsided everybody.

Was it expected? Did you or the Senator expect it? He ran the same year and was somewhat in trouble for a while.

Yes, all of that. In Massachusetts they’ve had a series of Republican Governors, and I think it has been personalities basically. [Mitt] Romney was a strong candidate, as it turned out, but we didn’t take him seriously enough in the spring and summer of 1994—a key decision, which in hindsight was obviously the wrong decision. The Senator decided not to buy any summer television commercials. He didn’t want to go on air during the summer, starting after the first of August, when other people were running commercials, because he felt that he didn’t have to put the expense into it, that it wouldn’t be that difficult a race. We were somewhat overconfident, because of polls showing Kennedy with a 26 point lead at that time. 

We suddenly became aware in mid-September that the race had tightened, and Kennedy and Romney were now neck and neck. That sent a shockwave through everybody. All of a sudden there was a real possibility that the Senator might lose his seat to this wealthy new GOP candidate. 

Since the Senate was still in session—it didn’t recess for the elections until the end of the first week in October. Romney was clearly making inroads, but once Kennedy could be in the state full-time, he turned on the afterburners, and started his trademark intense campaign swings. Romney’s momentum stopped and everybody paused to wait for the first debate to see what would happen. Kennedy spent a lot of time preparing for that debate, knowing how significant it would be. His performance was basically a home run. From then on, the gap began growing again in the polls, and Kennedy won going away. 

He realized he had made a mistake by letting Romney build momentum during the summer. When the campaign became touch and go in September, and it was all hands on deck. Former staff and close friends flocked in to help from wherever they were around the country. But at the same time, once Kennedy was up there in the state campaigning, we were reassured by the way the trend seemed to be going, and by election day, we were fairly confident he’d prevail. But it was a real scare.

The thought that he was not permanent in the Senate—I mean, when you look at the number of years, it’s hard to imagine.

You can imagine why he would have closed like that. In some ways it’s a tribute to Romney. Of the people who we thought at first might be likely candidates from within the state, I don’t think that it would have been a close race. But Romney was a new, young, attractive candidate with a lot of money to spend. We recognized too late that he was a serious threat. It seems likely that Kennedy would have dealt with it effectively earlier. But he rose to the challenge so well. He symbolized the saying that when the going gets tough, the tough get going. Of course, everybody was holding their breath for the first debate, obviously—and he aced it.

Were you up there?

Yes, after the Senate adjourned.

What did you do?

We basically practiced for the debates, rehearsed, and honed the issues, and we tried to anticipate the questions. We went through six or seven mock debates.

Who played Romney?

I’ve forgotten who did that. I think it was somebody up there from our outside team. I don’t think he wants to be identified. [laughs] We knew all the arguments against Romney, and it was just a question for Kennedy of, what are your priorities? Which of these issues do you want to address first? There were some personal issues that he mostly tried to keep away from. There was a lot of negative campaigning too. We wound up doing a lot of research on Romney, and the more we found out—for instance, the appalling labor issues, how his company had mistreated working people at his takeovers. He turned out to have a few scars. At the same time, I think the Senator respected him for giving him that sort of challenge. They’ve had a pretty good relationship since then.

Massachusetts was a special case. I guess you were anticipating some falloff in Democratic strength in the midterm elections?

I was blindsided by the GOP takeover of the Senate and House. I like to think that if Kennedy had had a walkover instead of a serious contest, he might have been out campaigning hard around the country. It’s difficult to tell whether he could have made any significant difference. His feeling is that he can rev up the crowds, but people don’t necessarily vote for the candidate you’re urging them to vote for. His focus was intensely on Massachusetts, and he was as surprised and appalled as anyone to wake up and find out that he was no longer the chairman of his committee. It was a thunderbolt. Maybe we would have learned something if we had been paying more attention, but it seemed to most of us that although the margin might narrow, the notion that we would lose enough seats to lose the majority didn’t seem realistic.

This was a party disaster, wasn’t it?

Oh yes, definitely. It was a rebuff to the Clinton administration too. It’s hard to see what was actually driving that, except that maybe the Gingrich genius, whatever it was, reached out and brought a lot of their voters to the polls. He’s talking about running again in 2012 for President. [laughs] You see him all the time now. He’s claiming some credit for this. That certainly was a bolt out of nowhere, and we had to live with it for quite a while.

Our time is up. Maybe we can start out next time with the Gingrich revolution. What I’m trying to get into the oral history is a sense of how Kennedy navigates through these adverse winds. We’ve talked about this with a lot of people. They have talked about what a disaster it was for the Democratic Party. A mood of defeatism or demoralization was widespread in the Democratic Party, a feeling of, This is a rejection in principle of the things we stand for. You’ve talked a bit, and a lot has been written about Clinton’s mood after this and about his reading of what it meant. Senator Kennedy was a rebuilder. He was making an effort.

Very much so.

I would like to hear about that, because I don’t know if there was anything like this on that kind of scale earlier.

No, I don’t think there was anything comparable. The loss of the Senate in ’80 wasn’t the same as the loss in ’94. The intensity of the partisanship was a significant turn away from the bipartisanship of the earlier years, when Reagan won the White House and Republicans won the Senate. There was a sharp change with the Gingrich revolution, and that alarmed a lot of Senators. There were Senators who were thinking, I’m going to retire in a couple years. This isn’t a place I want to be anymore. 

That wasn’t Kennedy’s attitude. Part of his philosophy was, We’ve searched too far and too wide looking for that middle ground. We’ve abandoned our principles. The country still cares about these principles, and we’ll go back to them. That was his basic way of thinking. To some extent, I think he has been vindicated by that. But Arthur Schlesinger says that the cycles go back and forth every 30 years or so.

In a way that’s a nice faith to have, that everything goes in cycles, because you may be dead, but—

It’s more soothing. That’s right. It’s not your fault, in a sense. Larger forces are at work that we don’t quite understand.

I figure that the winds of change drive the boat. Let’s talk about that era next time.

Yes, that would be good.