The Negotiator

by George Mitchell

  I knew that I and the other members of the Committee had to negotiate with and reach agreement with the White House, but I was determined that these negotiations not be exclusive. We had to get the interest and involvement of senators who were not on the Committee, including, perhaps especially, those who were opposed to one or more provisions in the Committee bill. So I invited all senators to join the discussion to enable them to ask questions, express concerns, and offer changes. Thus began an extraordinary process that took a full month and in which a large majority of senators personally participated. It grew much larger and took much longer than I had anticipated, but in the end it proved to be the right approach at the right time.

  That was not obvious at the outset. I had two conference rooms, one on either side of my personal office in the majority leader’s suite. To allow me to maximize my personal participation and to maintain a degree of control when I could not be there, I instructed that the negotiations take place in the larger of these rooms. The first few days of negotiations were essentially between the Committee and the administration. At the end of the long rectangular table closest to the door to my personal office I sat with Baucus, Chafee, and Durenberger. At the other end of the table, closest to the door that led out into the hallway alongside the Senate chamber, sat Porter and Grady; they were occasionally joined by other administration officials. Along both sides of the table sat other senators. They came and went, depending on the issue under discussion. John Breaux of Louisiana was a regular and helpful participant, as was Frank Lautenberg. In the first few days only a handful of senators participated. Gradually, as the process gained traction, more and more joined, as did their aides. Two rows of chairs were set up for the aides behind the senators at the table. Soon they were packed in, many of them standing, from morning until late at night. More participants meant more discussion, more debate, more controversy. The issues were many and technical. Few of the participants had a perfect understanding of every aspect of every issue. I was able to keep the process under control because I was assisted by a superb group of staff members with long experience and deep knowledge of the issues. They were led by Kate Kimball, a personable young woman who over the previous decade had mastered every detail of every aspect of the issue. The other key senators also were well-served by their staffs.

  It soon became apparent that those of us who supported the Committee bill were fighting a four-front battle. Across the table was the Bush administration, which wanted a bill, but only their bill. Their goal was to persuade us to accept it. Our goal was just the opposite: to persuade them to accept the Committee bill. We all believed that somewhere in between a reasonable compromise could be found. But there were many outside the room who did not share that view. Two of those groups battled to influence the process. The environmental organizations, aided by many Democratic senators who shared their views, opposed any weakening of the Committee bill; they advocated an all-or-nothing strategy. But they greatly overestimated their influence in the Senate. The other outside group was the business organizations, aided by many Republican senators and a few Democrats as well. They regarded even the administration’s bill as too strong and wanted no bill, or, if there had to be one, the weakest possible bill. They overestimated their influence in the House. Finally there was Senator Byrd. He had long opposed clean air legislation. His devotion to his constituents was total, his influence in the Senate high. He had been the Democratic leader for many years, and now he was in what was arguably an even more influential position, as chairman of the powerful Senate Appropriations Committee, through which every dollar of federal funding passes. As the Washington Post noted in reporting on Senator Byrd’s effort to amend the Clean Air bill:

  As chairman of the Senate Appropriations Committee, which he took over after stepping down as majority leader, Byrd holds the fate of every senator’s pet project in his hands and, according to colleagues, he has not been shy in reminding them of that fact.

  By Byrd’s count, he has paid “house calls” to at least 25 senators in their offices. “He’s been on the phone. He’s been in their offices. He writes them letters. He’s everywhere. I’ve never seen the likes of it,” one senator said. “He reminds you of every project he helped you pass . . . he hasn’t forgotten a one,” another said.15

  Byrd was not principally motivated by the concern over cost that drove the administration and some of its allies, or the dislike of regulation that motivated the business groups and their allies. His concern was more specific, more human: coal miners, their jobs, their families. It was a concern that resonated with many other senators.

  The negotiations were not open to the press or the public, but much of what was said soon became public. Those senators who were close to the environmental organizations kept them informed; senators on the other side of the issues kept the business groups informed. As the negotiations intensified the environmental leaders stepped up their criticism of me and the other senators who supported and participated in the process. In an effort to persuade them that our approach was the only one that had any chance of succeeding, I met with several leaders of the environmental movement.

  I was in the large conference room, engaged in negotiations with Porter and Grady. Max Baucus was to my left. To my right, just at the corner of the table, sat Senator John Heinz, a Republican from Pennsylvania. He was not a regular participant, but the subject that day happened to be of interest to him. He was wealthy, moderate, handsome, and well-spoken, and many thought he would at some point be a candidate for president. When an aide informed me that the environmental leaders had gathered in my small conference room, I turned the gavel over to Max, excused myself, and crossed through my office to the other meeting.

  I shook hands with each of the several leaders. They were good men, well-meaning, well-informed, who worked hard for a good cause in which they believed deeply. I liked and respected them, had worked with them for years. But on this day there were no smiles, no small talk. We sat down to a discussion that was serious and direct, even blunt. No one swore, no one yelled, but there was no mistaking the tension that filled the room. As the chairman of the Environmental Protection Subcommittee I had been the author and supporter of most of the environmental legislation enacted or considered for nearly a decade. During that time they trusted me. Now, I knew, they did not. They were so committed to gaining enactment of the strongest possible clean air bill that they had talked themselves and their allies in the Senate into believing that sixty or more senators would vote for the Senate Committee bill. That was the number necessary to overcome the filibuster that senators opposing the bill would mount. In their view the only remaining obstacle to a glorious victory was my unwillingness to bring the bill to the floor for a vote. Although no one directly called me a coward, that was the implication of their statements. I carefully explained to them, not for the first time, that I would gladly bring the Committee bill up for a vote if I thought there was any chance that we could pass it. But we couldn’t pass it. We didn’t have sixty votes. We didn’t have even fifty votes. I had worked with and talked with these senators for years, on a wide range of issues, especially on those relating to the environment. I knew their views and their concerns. I was absolutely certain that we did not have sixty votes at this time. If I forced a vote now we would get about forty-five votes for it, and our weakness would be fully exposed, whatever negotiating leverage we had would vanish, and the bill would be lost, perhaps for another decade. I couldn’t let that happen. I wouldn’t let that happen. I would continue negotiating to find the strongest bill that could become law. If I couldn’t get it done, if the best available bill was too weak to do the job of cleaning the air, I would stand up, say that publicly, and admit defeat. But I sure wasn’t ready for that yet. I told them I thought they had become so accustomed to glorious defeat that they were too quick to proclaim and accept it. They were good at making statements; they should try harder to be good at making laws.

  I was sensitive to and so
mewhat defensive about their constant criticism of me and the other leaders of the Committee. I felt reasonably secure in Maine; I wouldn’t be on the ballot again until 2004. But Baucus would soon be up for reelection, and his opponent claimed that acid rain was a hoax; yet these groups were attacking Max. I criticized them for that. They didn’t appreciate my comments, of course, and they responded vigorously to each of my arguments. Then they handed me a list they insisted was a hard and accurate head count on the Committee bill. It showed that sixty senators would vote for it. I slowly read down the list. I knew it wasn’t accurate. “Are you telling me that you got all of these commitments from the senators themselves?” I asked. After some discussion among themselves, without being specific they said that many of the commitments had come from senators themselves and that the others came from “reliable sources close to the senators, people in the know.” I was careful to say that I didn’t think they were lying to me; rather I told them that while they no doubt believed the list was accurate, I knew it was not. One of the affirmative votes on the list was John Heinz.

  I asked the group if they would excuse me for a few minutes, that I had to step out but would return shortly. They said they would wait. I went back through my office to the other conference room and settled into my chair. Heinz was still there. I leaned over and whispered to him, “Jack, I’m really grateful to you, I appreciate your support.”

  He sat up straight and asked, “What are you talking about?”

  “We’ve been trying to get a count on where everybody stands if I have to take this bill to a cloture vote, and I’ve just been informed that you’ve committed to vote for cloture.”

  “Are you crazy?” he practically shouted. “I can’t do that. There’s no way I would ever vote for cloture on this bill. You know very well we’ve got a lot of coal in western Pennsylvania.” He was visibly agitated.

  “I know that, and I thought that’s what you would say, but I had to check because I’ve been told differently.”

  “Well, whoever told you differently told you wrong.”

  “Okay. Thanks.”

  I started to get up. He grabbed my arm and pulled me back down into my chair. “I want to vote for a clean air bill, but I can’t vote for this one. You know what my problems are. You fix them and I’ll be with you.” I did know what his problems were. I wasn’t sure I could fix them, but I was going to try.

  I returned to the other meeting. As close to verbatim as I could, I recounted my conversation with Heinz to the environmental leaders. I told them I didn’t question their good faith or their sincerity, but I was certain that there were about fifteen other senators on their list who were in the same boat as Heinz. I understood and appreciated the role that groups like theirs played in the legislative process. They kept the pressure on to counter the pressure from outside groups on the other side of the issue (who, of course, justified their actions on the same grounds). But I asked them not to make it personal. “Max and I and John and Dave are all trying to do the right thing. We want a good, strong bill. I know you don’t agree, but I’m telling you that what we’re doing is the only way we can get it done.” They denied that they were making it personal, and they made it clear that on the central issue they were not persuaded. They repeated their demand for an immediate vote on the Committee bill. I was disappointed. They were disappointed. They hadn’t convinced me, and I hadn’t convinced them. The meeting ended. As bad as things had been, I knew they were about to get worse.

  In my years in the Senate, and beyond, I’ve occasionally gotten front-page headlines in Maine newspapers. But to the best of my knowledge, only once have I been the subject of a headline across the entire top of the front page of the Portland Press Herald. That happened on February 22, 1990, when the headline read, “ ‘Deals’ on Clean Air Attacked—13 States Say Mitchell, Others Are Diluting Bill.”

  A group of state environmental officials called on Senate Majority Leader George J. Mitchell Wednesday to stop making “back-room deals” with opponents of the clean-air bill because they’re “cutting the heart out” of the legislation.

  The group charged that Mitchell and other leaders of the clean-air fight are so anxious to get the bill through Congress that they have tentatively agreed to “unacceptable” concessions on smog control provisions with Senate opponents and White House officials.

  At a press conference Wednesday, Thomas C. Jorling, commissioner of New York state’s Department of Environmental Conservation, released a letter signed by 13 state environmental officials—including Dean Marriott, Maine’s commissioner of environmental protection—urging Mitchell not to agree to the compromises.

  The article triggered a series of similar attacks, all of which stung. I was angry and fumed about the irony: Jorling had been a Republican staffer on the Environment and Public Works Committee; now here he was getting headlines by criticizing me for negotiating and making compromises with a Republican president. I was aware that Jorling was being encouraged and helped by others who were supposedly friends of mine; some of them compared me unfavorably to Muskie. My offices in Maine and Washington got a few more calls than usual and soon critical letters started to arrive. I knew that when I returned to Maine that weekend, as I did every weekend, I would face a barrage of questions. I was confident that I could handle them—not convince everybody, of course, but at least fair-minded people would understand. But I was downcast and worried. I’d been arguing for a long time with my opponents; now I was arguing with my friends. The bill was so complicated, so hard. What if we couldn’t reach agreement with the White House? And even if we did, could we survive the barrage of amendments that would be fired at the bill, from both sides?

  Lost in negative thoughts, I said less than usual at the negotiations that day. It must have been noticeable because late in the afternoon Max leaned over and asked, “Are you okay?” “I’m okay,” I answered. “But I have to tell you, this is the hardest damn thing I’ve ever done.” He laughed and nodded in agreement. I made an effort to perk up, to stave off my rising sense of self-pity. I interrupted the discussion, moved it to an item on the agenda in which I was particularly interested, and started asking questions.

  The last dark days of February passed slowly, but we persevered, and day by day, issue by issue, we made progress. As we neared the end of the month, and of the negotiations, two major hurdles remained: cap-and-trade and coal miners. Bush had proposed and his team argued strongly for an emissions trading system that he could sell to the business organizations as a market-based solution to the problem of clean air. The environmental organizations and their allies were adamantly opposed. The Committee members were split. But after some internal debate most accepted my argument that we wouldn’t be here were it not for the president’s decision to reverse Reagan’s policy against clean air legislation; if we expected the president to move toward us on some issues, we had to be willing to move toward him on others; this one was especially important to him.

  On the coal miners we had struggled for years to find the right balance, without success. Byrd had participated in a few of the negotiating sessions but, unsatisfied by what was on offer, withdrew to enlist the support of other senators and to draft his own legislation. It provided for substantial benefits to coal miners who lost their jobs as a consequence of the legislation. The amounts went far beyond those provided to workers in other industries who might lose their jobs for similar reasons. The administration quickly took the position that the estimated $500 million cost of the Byrd amendment would cause the bill to exceed the president’s proposed budget for it. As a result, if Byrd’s amendment passed, the president said he would veto the bill. The fate of the clean air bill in the Senate thus would turn on the Byrd amendment.

  There were other amendments, of course. The environmentalists continued their criticism of the compromise bill. They heavily lobbied for three major amendments, each of which would have strengthened the bill, but adoption of any of them would have killed it becaus
e Bush had committed to a veto if any of the amendments was included in the final version. I was thus placed in the extremely uncomfortable position of publicly and aggressively opposing amendments that, in other circumstances, I might have supported. This further antagonized the environmentalists, who stepped up their criticism of me. Tim Wirth, a Democrat from Colorado, and Pete Wilson, a Republican from California, proposed to strengthen the requirements on automobile emissions. Wilson then joined with John Kerry, a Massachusetts Democrat, in proposing to strengthen the controls on smog. Frank Lautenberg proposed a strengthening amendment on toxic emissions. His amendment was especially painful for me to oppose, because we were such good friends and because he had worked so hard and so constructively on clean air and other important environmental legislation. In each case my argument was simple: “Do you want to make a statement or make a law?” While the amendments may have been good policy if considered independently, if adopted they would kill the bill. It might make a senator feel good to sponsor or vote for the amendment, and it certainly would help his or her voting record with environmental groups, but it would not advance the cause of clean air or improve the health of the American people. That argument was persuasive enough to cause the defeat of all three of the amendments. Although the margins were not great, they were misleading. Some of the senators who voted for the strengthening amendments did not in fact support their provisions. They were against the bill and hoped to kill it by supporting the amendments, in the hope that one or more would pass and induce a presidential veto.