Kennedy Enduring

So much has been written about Senator Edward Kennedy’s extraordinary legislative achievement that it’s worthwhile to recall that he didn’t always win. And that he was as fierce an advocate in defeat as he was in victory.

The Congressional Review Act allows the Congress to overturn any executive rule that has been posted on the Federal Register for fewer than sixty days when a Congress convenes. It imposes limits on House debate and precludes the filibuster by limiting Senate debate to ten hours. When in early 2001 the Republican Congress and the Bush administration turned to the CRA (which had never before been used) to overturn ergonomics rules written to protect workers, Kennedy pleaded with his colleagues.

“Millions of workers and their families suffer needlessly,” he said in debate. “These injuries can be prevented by simple, inexpensive changes in the workplace. This rule is about prevention, preventing the injury. The President can stop this regulation and issue a new one if he doesn’t like it. But in ten hours of debate today, the Republicans intend to destroy this crucial protection that was begun over ten years ago by Secretary of Labor Elizabeth Dole.”

“We all know what’s going on,” Kennedy said.

At one point he interrupted Wyoming Republican Mike Enzi, who had been blatantly dishonest in his characterization of the ergonomic rule. “Please give me an example of what you are for, Senator!” Kennedy shouted across the Senate floor. “Give us an example of what you are for! It’s silent over there. That is a reflection of the bankruptcy of their arguments.”

After the Republicans prevailed, a member of Kennedy’s staff told me that the senator was “devastated.” The CRA imposes a moratorium on reinstating rules banned by it’s application, so worker protections were dead as long as George Bush, who would not order his secretary of labor to write a new ergonomic rule, remained in office.

PARTISAN DRUG BUST—At the end of the 1990s, Kennedy was determined to extend Medicare coverage to prescription medications for senior citizens. As chair of the Health, Education, Labor and Pensions Committee, he worked on legislation to do so. By 2002 he had enlisted 52 senators to vote for his prescription drug bill. The Republicans filibustered to ensure that the bill never came to a vote.

Then in 2003, President George W. Bush was looking for a big legislative victory (beyond tax cuts) for his second election campaign. This time a version of Kennedy’s Medicare bill passed the Senate with 76 votes. Over the summer of 2003 the bill was rewritten, by a conference committee on which no House Democrats and only two nominal Democrats from the Senate were permitted to participate. As Kennedy saw it, the bill was “hijacked” by Republicans.

The committee substitute first passed the House—by a process without precedent in the modern Congress. “We saw the facade that took place in the House of Representatives, where the vote was called at 2 or 3 o’clock in the morning, and the vote was kept open beyond the traditional time of fifteen to twenty minutes for nearly three hours, in order to try to effectively coerce members to support the proposal,” Kennedy said, as debate began in the Senate.

Procedure in the Senate was only a little better. The Republican majority had to overturn a ruling by the parliamentarian (by one vote) to move the bill to the floor. Kennedy tried to filibuster and when it was evident he didn’t have the votes he pleaded for more than a weekend debate to set up a Monday vote. He was ignored. The $400 billion prescription drug bill passed the Senate by a 54-44 margin.

On the day President Bush signed the bill, Kennedy led his own rally, roaring at a group of senior citizens: “Who do you trust? The HMO-coddling, drug-company loving, Medicare- destroying, Social-Security hating Bush Administration? Or do you trust the Democrats?”

Kennedy never came to terms with a bill that carved out huge profits for pharmaceutical and insurance companies and HMOs. Nor could he accept that it prohibited the government from using its buying power to negotiate lower drug prices from pharmaceutical companies, while American seniors were banned from buying American-made drugs in Canada, where prices are much lower.

He promised to return and right the damage. Last month he ran out of time.