The Negotiator

by George Mitchell

  Finally the Byrd amendment was reached. As I rose in the Senate chamber to speak against it on March 29, head throbbing and nose running, the gallery was full, the chamber was packed. I knew that I had already lost a majority of the Senate’s Democrats. That morning many of them had informed me that they were going to vote with Byrd. It felt like a rapid series of hammer blows, each hurting more than the one before. Most of them said some variation of “You know how much I like and support you, and I really do support clean air, but I just can’t take a chance on this one. I’ve got a big project pending in Appropriations.” I understood and appreciated their predicament. Although I was deeply disappointed, I kept my hurt feelings to myself. I simply thanked each senator for his or her consideration, shook hands, and turned to receive the next bit of bad news. There would be other votes, tomorrow, next week, next month, on which I would need their help. That’s the reality of being Senate majority leader. You always have to keep in mind the next battle, and the one after that. You can’t afford permanent enemies.

  Ninety-nine senators were present that day, so we needed fifty votes.I I tried hard, but I couldn’t get a reading on every single senator, so when the clerk started to call the roll I knew that we would win or lose by one vote, but I didn’t know which way it would go. I closed the debate by pointing out the problems with the amendment and urging senators to cast a vote for clean air. In his closing remarks, made just before I spoke, Dole emphasized to Republican senators the importance of the vote to the president. With so many Democrats lining up behind Byrd, and several Republicans who served on the Appropriations Committee going with him as well, we needed every available Republican vote. As the roll call progressed, I heard Steve Symms of Idaho vote yes. I knew he opposed the whole effort and strongly disagreed with the substance of Byrd’s amendment, so this was just an attempt to induce a veto by the president. I walked toward Dole to urge him to talk with Symms, but before I got there Dole had already collared him. As the end of the vote neared we were down by two votes, fifty to forty-eight. Only Joe Biden had not yet voted. Dole had to persuade Symms to switch, and I had to persuade Biden to vote no. Biden, a friend with whom I’d worked closely on major anticrime legislation, had already made it clear to me that he would like to support Byrd’s amendment. But he didn’t want the whole bill to go down. He needed to be assured that the veto threat was genuine. I tried to get the president on the phone to deliver that message directly to Biden. Bush wasn’t available, but his chief of staff, John Sununu, was. After the vote Biden addressed the Senate to explain his decision:

  I had indicated to Senator Byrd that my sympathies were with his position—I, like him, would like to help the coal miners—and if this were not a deal buster, if this would not kill this bill, I would vote with him. But if it would, I would not.

  I heard a good deal of discussion characterizing whether it would or would not kill this bill. I acknowledge that the phone call I received was incredibly timely, but, nonetheless, I received a phone call and spoke to Mr. Sununu. I asked him point blank: First, did they see this as a deal buster and, not going around the barn; second, would they, in fact, guarantee to me they would veto this; is that what they were saying?

  And the answer was yes. First, they thought it was a deal buster because it pushed up the total dollar cost of this bill which he said they agreed to. And, secondly, he guaranteed me the President was going to veto the bill. I was not ready to take the chance because it has been too many years since there has been a clean air bill, and I believe passage of a bill this year is necessary to deal with acid rain and other pollution problems that are hurting my State and so many others in this country.16

  Immediately after Biden voted Symms switched his vote to no. It was over. By a vote of fifty to forty-nine the Byrd amendment was defeated.

  I had prevailed on that vote, but of the fifty-three Senate Democrats other than Byrd and me, only fifteen had joined me in voting against the amendment. I was profoundly grateful to each for their courage, especially three of them who were most vulnerable. Pat Leahy of Vermont and Wyche Fowler of Georgia were members of the Appropriations Committee, where they dealt daily with Byrd. Although not a member of that Committee, Joe Biden had conspicuously cast the deciding vote. After it was over, I thanked Leahy and Fowler, then walked across the chamber to Biden. “Congratulations,” he said, “you earned it.” I grabbed his arm and pulled him close. “Joe,” I said, “you’ve got guts.”

  As on all Senate votes, the clerk who called the roll recorded each vote on a long rectangular tally sheet. The next day Byrd took that tally sheet, had it framed, and hung it next to the door leading into his Appropriations Committee office. For years thereafter anyone who entered his office was reminded of that vote.

  After the result was announced I extended my hand to Byrd. We shook hands wordlessly. It was a grim moment, the low point in our relationship. After that our interests and views most often coincided, and I continued to seek his advice regularly, especially on the rules and procedures of the Senate. As a result our relations steadily improved. Four years later, just before I retired from the Senate, I visited him in his office, where we had a warm and cordial talk. When I left, our relationship was the best it had ever been. Twenty years later, at Byrd’s funeral, Joe Biden, by then the vice president, jokingly told the story of his vote on the Byrd amendment to the clean air bill. Amid the laughter I thought about how the passage of time really does smooth over the jagged edges of our lives, leaving us with memories that tell the story as we’d like to remember it.

  On April 3, 1990, the Senate passed the clean air bill by a vote of eighty-nine to eleven. The outside groups reacted predictably: the environmentalists said it was too weak; the affected industries said it was too strong.17

  We made many concessions to the White House to get the bill through the Senate. But, to my dismay, the White House undertook a major effort to further weaken the bill in the House. It wasn’t a violation of our agreement; Roger Porter made it clear at the very end of our negotiation, when we had an agreement but before we took the bill to the Senate floor, that the White House was not bound to it once the bill passed the Senate. But while it was not a violation of the agreement, I felt it was inconsistent with the spirit of our negotiation. I had already spilled a lot of political blood to get the agreement and would have to make a costly personal effort during Senate consideration of the bill, speaking and voting against my friends and their amendments. It was too late for me to abandon the course I had chosen. We had the agreement and I had to honor it, which I did. But I didn’t feel right about the way it ended.

  One of the most potent arguments used against me by the environmental groups and the Democratic senators who shared their views was that I had started the Committee bill down a slippery slope: the White House would water down the bill when it reached the House, and then again in the inevitable conference between the House and Senate. My answer, which few of them found persuasive, was that the White House was miscalculating its chances in the House and in the conference. I had given the White House full access to the Senate process. But the House leadership excluded the White House from their inner deliberations. They could do that because in the House, unlike the Senate, the majority, if united, need not concern itself with those in the minority. Of course there were plenty of House members, Republicans and some Democrats, who kept the White House informed, but being kept informed is much less valuable than being at the negotiating table as a full and equal partner.

  Word spread and reached the press about the White House’s intentions. Because it was inevitable that whatever bill the House passed would be different from the Senate bill, a conference committee, composed of senators and representatives, would resolve the differences. Ordinarily the conferees are committed to the provisions of their body’s bill: senators advocate for the Senate bill, House members for their bill. Eventually they both compromise. I was confident that the House bill would be at least as strong as the Sen
ate bill, even stronger in some areas, so I wanted to give the Senate conferees the greatest possible latitude to yield to the House provisions whenever they believed it would strengthen the bill.

  At one of our last meetings I proposed to Porter that our agreement be binding all the way through the conference committee. If he accepted, I was prepared to fully honor the agreement. I thought the Senate bill was strong enough to be a good law. But if he declined, the Senate would have more freedom in the conference to work for an even stronger bill. As expected, he declined. I really liked Porter personally and had (and still have) total respect for his ability and integrity. I’m sure he believed it when he told me that the reason for declining my offer was that the administration didn’t want to offend the House by supporting the Senate bill. No doubt that was valid, but I believed there were other reasons, also valid, one of which was a desire to bring the bill back closer to what the president had initially proposed. As a result of our exchange, which all of the Senate supporters of the bill were aware of, it was clear to everyone that we had in good faith negotiated an agreement, we offered to make it permanent, and the White House declined, as they had every right to do. So once the bill passed the Senate we were on our own. The administration could work to weaken the bill, and I could work to strengthen it. I thought the White House was making a grave mistake, that they were wrong in thinking they could, through Dingell, get a weaker bill. I now had an even greater incentive to see that the final bill was as strong as possible.

  In the Senate the Committee had reported a bill in November 1989, the internal discussions took place in February 1990, floor debate took place in March, and final passage occurred on April 3. In the House, by contrast, the internal discussions came first and stretched over a period of several months, the Committee reported a bill on April 5, floor debate took place in May, and final passage occurred on May 23. At every step in the process Dingell and Waxman competed to control the outcome, right down to the last day of debate on the House floor. My confidence that Dingell and Waxman would resolve their differences was based on my personal experience with both men and on several other factors, including the circumstances facing Dingell. His seniority and extraordinary ability had enabled him to amass substantial prestige and influence in the House, which he used aggressively to protect his constituents. But he knew his limits. On this issue, one limit was the fact that a majority of Democrats in the House favored strong action on clean air. He could delay, he could modify, but he could not stop it. Most important, I did not believe that he wanted to stop it. I thought the White House and the business groups misjudged Dingell and were engaged in wishful thinking that he would somehow kill the bill. Like all members of Congress he rationalized differences between the interests of his district and those of the nation. But I thought that in the end he would do what was best for the country and would not risk his own position to try to defeat a bill that he believed was in the overall national interest. To the contrary, he would do his best to shape it and, then, when it passed, proclaim victory.

  Speaker of the House Tom Foley put strong pressure on Dingell and Waxman to resolve their differences. After a contentious battle over a provision on alternative fuels that continued to the last minute (an alternative fuel provision had, also at the last minute, made it into the Senate bill), Dingell and Waxman joined together to work for approval by the full House. The bill passed by an overwhelming margin, 401 to 21.II

  The House-Senate conference to reconcile the differences between the bills got off to a slow start. The bill was so large and important that many different committees and members wanted to be in on the action. As a result the House conferees, totaling 130 and representing seven committees, were not even appointed until June 28, more than a month after the House passed its bill. The first formal meeting took place in July, and little happened until the Congress reconvened in September, following its summer break. The process picked up quickly thereafter, and a compromise bill was agreed on October 22. The conference proceeded and concluded about as I had hoped and predicted. Baucus skillfully guided the Senate conferees. Although some disagreements lingered on the House side, Dingell and Waxman worked out their differences. The House yielded to the Senate’s stronger acid rain provisions, but on almost all other issues the Senate yielded and the stronger provisions of the House bill prevailed. As a result the conference “succeeded in strengthening the bill sent to President Bush.”18 It was the best possible result, from my perspective. Four days later the House approved the conference committee report 401 to 25. The next day, Saturday, October 27, the Senate agreed, eighty-nine to ten. Late that evening I left the Capitol with a mix of feelings: exhaustion, relief, elation, accomplishment. My ten-year clean air effort was over.

  After the bill was signed into law, several White House aides said that their decision not to extend our agreement had been a mistake.19

  The following year several of the environmental organizations asked me to address their annual conferences, at which they lauded my efforts on behalf of the environment; some of them gave me plaques describing me as their “Man of the Year” for my work on clean air legislation. I swallowed my anger and resisted the temptation to gloat. I knew that before I left the Senate I would want and ask for their help on other issues. I attended, accepted my plaques, and spoke earnestly about the importance of protecting the health of Americans.

  More meaningful validation came with the passage of time. Twenty-two years later the Environmental Protection Agency reported, “Since 1990, nationwide air quality has improved significantly for six common air pollutants.”20 In 2011 the Natural Resources Defense Council, one of our nation’s leading environmental organizations, concluded, “The Clean Air Act is a genuine American success story and one of the most effective tools in U.S. history for protecting public health.” Among many other health benefits, the NRDC estimated that the 1990 amendments saved nearly two million lives. It had been a long and hard struggle, but it was worth the effort.

  * * *

  I. Senator Johnston had to attend a funeral and was necessarily absent. He announced that if he were able to be present he would have voted for the Byrd amendment. This had no effect on the outcome. If he had been present and voted no, there would have been a tie, fifty to fifty. The presiding officer of the Senate was Vice President Dan Quayle; he would have broken the tie in a manner consistent with the president’s position, so the outcome would have been the same: the amendment defeated by one vote.

  II. Eighteen years later, after a bitter contest, House Democrats voted to elect Waxman as chairman of the Energy and Commerce Committee, displacing Dingell, who had become chairman in 1981. In 2014 both announced their retirement.

  THE STATE OF ALTOONA

  In addition to the Clean Air and Clean Water acts, the Senate Committee on Environment and Public Works dealt with other important issues, one of which was transportation infrastructure. Every few years Congress reviews and reauthorizes the laws that control the raising and spending of hundreds of billions of dollars on our nation’s highways, bridges, and transit systems. The money comes from the federal tax on the refining and sale of gasoline. It is then redistributed to the states in accordance with a complex formula that is always the subject of much contention, as members of Congress battle to increase their state’s share. Each time the measure moved through Congress while I was in the Senate, it generated unforgettable displays of aggressive behavior, statesmanship, and good humor. Also on display were the unique talents of Daniel Patrick Moynihan and Bud Shuster.

  Before entering the Senate from New York, “Pat,” as he was widely known, worked in both Democratic and Republican administrations. If there had been a title of resident intellectual in the Senate he would have been a top contender for it (along with Paul Sarbanes of Maryland). Widely read, Moynihan could (and did), at the merest hint of a question, expound on the foreign policies of the Russian czars of the eighteenth century or the domestic policies of the British Labour Party i
n the nineteenth century. As a member of the Committee, he regarded the periodic free-for-all over the funding formula as grubby but necessary business. I worked with him and others on the Committee to resolve the nasty fracas over the allocation formula in a process that at first seemed hopeless but always, somehow, got worked out. While competitive and political, the atmosphere was not as toxic as it is now; bipartisan cooperation was common then. Among my fond memories is working with Moynihan and the leaders of the counterpart House Committee to resolve differences between the two bodies on one of the transportation bills.

  Bud Shuster was a senior Republican member of Congress representing a district in central Pennsylvania centered on the city of Altoona. In an arena in which political aggression was the norm, Shuster stood out as superaggressive in fighting for his district. Yet although he was at times blunt, even gruff, he understood the need for compromise in enacting legislation.

  The process that later grew rapidly and earned infamy as “earmarks” was then still a relatively minor part of the bill when measured in dollars, although critically important for oiling the squeakiest wheels. No wheel squeaked louder or more often than Shuster. He was there to make sure that the people of central Pennsylvania got their fair share, which to him meant quite a bit more than anyone else’s definition of fair. But of course there is no objective definition; everyone decides what is fair through the prism of self-interest.