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Politics & The Nation
Work on legislation in 1990s honed compromise skills
by Alec MacGillis
She was a White House aide
who, at the age of 37, had become President Bill Clinton’s point per- son on a big tobacco bill, impress- ing veteran Senate Republicans with her hard work and intelli- gence.
But then a magazine article
portrayed Elena Kagan as the driving force behind the legisla- tion, a central player who had bent it to the White House’s lik- ing. This did not sit well with Re- publicans overseeing the bill, a group led by Sens. John McCain (Ariz.), Orrin G. Hatch (Utah) and Bill Frist (Tenn.) Kagan rushed to offer an apol-
ogy, which the senators accepted. But just weeks later, the legisla- tion collapsed, felled in a political showdown that overwhelmed Kagan’s painstaking efforts to find a middle ground. “It was very disappointing,” said Rich Tarplin, then a lead ne- gotiator for the Health and Hu- man Services Department. “It was one of those things where you knew right away that the planets don’t align often and we’d missed an historic opportu- nity.”
A formative experience
In Kagan’s trajectory to be- come President Obama’s Su- preme Court nominee, the tobac- co battle of the 1990s proved for- mative for someone who had little exposure to the messy reali- ties of policymaking. In forging a deal that could satisfy Congress, public health advocates, states and tobacco companies, Kagan was for the first time in a high- profile role where she would hone the characteristics she has become known for: finding com- promise in pursuit of a daunting goal and using her command of complex issues to win over pow- erful people with outsize egos. The battle drew attention to Kagan as a force to be reckoned with, but it also was a lesson in the limits of compromise and persuasion, especially in the face of big lobbying efforts and parti- san rancor. Even as she made in- roads, White House attempts to keep both sides happy foundered badly, delivering a major blow to the administration. “It got too big. We put in any- thing that anyone wanted,” said Mike Moore, the Mississippi at- torney general at the time, who had led a multi-state lawsuit against tobacco companies. “It
became a Christmas tree that im- ploded under its own weight.” Shortly after she was promoted from the White House counsel’s office to deputy domestic policy adviser in 1997, Kagan took the lead in helping craft the legisla- tion needed to complete a histor- ic $368.5 billion settlement that tobacco companies had agreed to that year to cover state health costs caused by smoking. The legislation needed to de-
fine the new authority of the Food and Drug Administration to regulate tobacco, a key settle- ment provision. It would limit the industry’s future liability, a condition of its support, and es- tablish fees and taxes for the in- dustry and limits on advertising. Kagan, a smoker who had re- cently quit, faced multiple cross- currents. State officials thought that Clinton was not doing enough to promote their settle- ment. Public health experts such as C. Everett Koop, a former sur- geon general, and David Kessler, the just-departed FDA chief, called the settlement a sellout be- cause it included liability caps. And as 1998 began, the White House was distracted by the Monica Lewinsky scandal. Amid this uncertainty, Kagan presented an assertive front, ex- horting Congress in strong terms to pass a sweeping bill and sounding more like a political veteran than a University of Chi- cago law professor on leave. “We shouldn’t content our- selves with half measures that won’t work,” she said in January 1998. “We think people will be embarrassed to go home without doing anything,” she said two months later.
Behind the scenes, Kagan was working with McCain, Frist and their aides to negotiate a compro- mise that could get 60 Senate votes. One of the thorniest points was the provision giving the FDA authority to regulate tobacco. The FDA wanted to exercise
that power under its “drug and device” authority, but some sena- tors worried that would give the agency too much leeway. Kagan came up with an alternative: The FDA would regulate tobacco un- der a new, separate authority, but with broad discretion. She de- vised another compromise to ad- dress concerns that the FDA would regulate tobacco farmers. “She was pragmatic in the sense that she understood that compromise was necessary in or- der to achieve this huge public health objective,” Tarplin said. “But she was also smart enough to know that the FDA needed to get behind it and that their sub- stantive and legal expertise couldn’t be second-guessed. That was a very important balance.”
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Kagan tested by tobacco battles
Meanwhile, Kagan had to ad- dress Justice Department con- cerns that liability limits and ad- vertising restrictions pass legal muster. “She was always respect- ful, but also quite forceful,” said David Ogden, a former top Jus- tice Department official. “She didn’t give ground that she didn’t think she needed to give. She was thoughtful in listening to valid points, but if you didn’t have a valid point she pushed you until it was clear that you didn’t.”
‘Worked her tail off’
Kagan’s efforts paid off when the Senate Commerce Committee approved the bill in April 1998 on a 19 to 1 vote, during which Mc- Cain singled her out for praise. (The problematic article — writ- ten for the New Republic by Dana Milbank, now a Washington Post reporter — ran a few weeks later.) But the legislation ran into trouble in the full Senate. The bill had grown more anti-industry — the criticism from Kessler and Koop had opened companies up to more liability, and the White House and Congress, seeing to- bacco as an easy revenue source, had layered more taxes and fees onto the settlement, making it a $500 billion package. The indus- try had had enough: It launched a $50 million ad campaign, cast- ing the bill as a giant tax increase. Many Senate Republicans piled on, accusing Clinton of us- ing the legislation’s $1.10-a-pack tax increase to pay for things oth- er than its stated goal of reducing teen smoking. That June, the bill collapsed a few votes shy of a fili- buster-proof 60, which also killed the settlement. Five months later, the states agreed to a $206 bil- lion settlement that lacked key provisions such as FDA authority. Moore faults the White House,
saying that its advocacy needed to be “better and stronger” and that it let the bill get top-heavy. But he absolves Kagan, who “worked her tail off . . . to help us.”
Kagan put on a brave face, say- ing the smaller settlement did not reduce the administration’s leverage for a “broader resolu- tion of the tobacco issue.” But she left the White House in 1999, and it was not until last year that Con- gress granted the FDA regulatory authority. Kessler says the 1998 battle was worthwhile, part of a campaign that has, in two dec- ades, sharply reduced smoking. “This was one of those stories where, when it started was viewed as controversial, but when the president signed the bill last year was viewed as con- sensus,” he said. “And she played an important role in that proc- ess.”
macgillisa@washpost.com
Well, that clears things up
At his Tuesday briefing, White House press secretary Robert Gibbs was repeatedly asked about the Obama administration’s (unsuccessful) attempt last year to persuade Rep. Joe Sestak (Pa.) not to run against Sen. Arlen Specter in the Democratic primary. The White House counsel’s office issued a memo last Friday concluding that the administration did nothing improper when it dispatched Bill Clinton to talk to Sestak about dropping out of the race in exchange for the possibility of an unpaid administration job. But Gibbs was less than forthcoming about what, if any, job the White House may have had in mind. From the transcript:
Q: . . . The . . . memo on Friday said that efforts were made in June and July of 2009. Were multiple efforts — and were all of those made by President Clinton — (inaudible)? Gibbs: Whatever is in the memo is accurate.
Q: Okay, but I mean, were — but with regards to June and July, I mean, were all of those President Clinton or — Gibbs: I think that the relationship on how that happened, yes, is explained in the memo.
Q: But [Joe Sestak] had one conversation with president —
(Off mike.)
Gibbs: Let me check.
Q: Okay, and just one more. As far as — it said this was an unpaid position. Does that make a difference, in the view of the White House, that it would be an unpaid position as opposed to a paid position, in terms of whether — Gibbs: Well, again, I’m not going to get into hypotheticals. The situation was an unpaid position and didn’t constitute a lot of what you’re hearing.
(Off mike.)
Q: Okay, and just one more, sorry. But the Intelligence Advisory Board, which most reports said this offer was for, that would be a position that a member of the House could not serve on. Is that — Gibbs: That is — that’s how I understand the role that the PIAB is written.
Q: Okay, but the memo had said that this would be a position — he could serve in the House and serve on a presidential advisory board.
Gibbs: Correct.
Weighed down by controversies, White House goes on defensive
obama from A1
nia and Colorado to entice them to drop primary challenges against candidates favored by the White House. But they also note that whether these problems are large or small, there is a danger that they will affect public percep- tions of the administration’s com- petence. “In this environment, the only thing worse than doing ‘business as usual’ in Washington is doing it incompetently,” said John Weaver, a Republican strategist. “Height- ened partisanship, a bumbling re- sponse to the gulf disaster and these poorly executed attempts to coerce Washington’s will in pri- maries are about to define his first term in the minds of an angry electorate.” Doug Hattaway, a Democratic
strategist, offered a more positive assessment. “I think the White House has been doing an admira- ble job, given the sheer enormity of the challenges,” he said. “It’s hard to manage all of the big is- sues well and at the same time avoid setting little political brush- fires, which is how I think this other stuff can be categorized.”
A step backward
The latest setback came
Wednesday night, when Andrew Romanoff, a former state House speaker who is challenging in- cumbent Michael Bennet in Colo- rado’s Democratic Senate pri- mary, issued a statement describ- ing his interaction with White House Deputy Chief of Staff Jim Messina. Romanoff said Messina, in seeking to gauge his willing- ness to quit the race, raised the possibility of three jobs in the ad- ministration. Romanoff and the White House said no formal job offer was
made, and he did not drop out of the race. But the revelations came days after the White House sought to end an even bigger con- troversy over whether it had of- fered Rep. Joe Sestak a position to keep him from challenging party- switcher Sen. Arlen Specter in Pennsylvania’s Democratic Senate primary. Sestak refused and went on to beat Specter last month.
Cause for concern
Democratic strategists said there is cause for concern, but they were reluctant Thursday to speak on the record and risk the wrath of the White House. Their critiques, however, suggested that even within the party, there are questions about the effectiveness of the administration’s political operation and its communica- tions strategy.
“If I had a tombstone for every time they declared us dead, we could open a cemetery,” White House press secretary Robert Gibbs said. White House intervention in contested primaries has occurred during many presidencies and is rarely considered unusual or scandalous. What strikes Demo- cratic allies of the White House is the administration’s inability to keep its actions from blossoming into controversies and the evident lack of success by the president’s advisers in working their will within the party. “They don’t have the leverage
that past White House political operations have had,” said one strategist who spoke on the condi- tion of anonymity to discuss the situation candidly. “They’ve tried to influence these races and no- body’s listening. . . . A sitting president who arguably still had some political capital to spend was not able to prevent some pretty divisive primaries.” Obama himself is focused more closely on reassuring the public that he is working to gain control of the oil spill. He defended his handling of the crisis again on Thursday. In an interview with CNN’s Larry King, the president said he is “furious at this entire situation” but added that anger alone will not solve the problems. “I would love to just spend a lot of my time venting and yelling at people,” he said, “But that’s not the job I was hired to do. My job is to solve this problem, and ulti- mately this isn’t about me and how angry I am.”
Cloud of controversy
Administration officials may be
frustrated that Obama’s accom- plishments — passage of major health-care legislation among the
most significant — have been overshadowed by recent contro- versies. Friday’s jobs report, which forecasters predict will show substantial growth over the past month, is expected to pro- vide the White House with good news about the economy — and give officials something to point at to buttress their argument that their economic policies are work- ing. But it may be overshadowed by other problems that continue to weigh on the administration’s standing.
Only last week, the White
House sought to end the constant cable TV chatter over what in- ducements were offered to Sestak to end his campaign. A report from White House counsel Robert F. Bauer described the role former president Bill Clinton played as an intermediary on behalf of the administration, but ultimately left unresolved questions about what other steps officials took and just what was offered. Gibbs struggled Tuesday to an- swer reporters’ questions about the episode, several times refer- ring them to the report — which did not contain the answers. Then came Romanoff and his release of an e-mail from Messina describing three possible jobs in the administration. Gibbs issued a statement early Thursday ex- plaining that Romanoff had initi- ated interest in an administration job long before he decided to run for the Senate. Left unclear was whether administration officials had seriously considered him for any of those jobs before they learned he was preparing to chal- lenge Bennet. Bauer’s report said nothing was illegal about the Sestak episode, and officials said the same about talks with Romanoff. But what troubles White House allies is that the handling of both cases enlarged the story while under- mining the administration’s pledge to run a transparent op- eration shorn of politics as usual. Another Democratic strategist, who also spoke on the condition of anonymity to offer an analysis of White House operations, said Obama’s top advisers appear most focused on protecting his standing and his reelection pros- pects. “At the end of the day, they tend to ‘half do’ on problems they believe aren’t directly about the president and/or 2012,” the strat- egist said. “In short, they are am- bivalent about dealing with these things and it gets them into trou- ble.”
balzd@washpost.com
Staff writer Michael D. Shear contributed to this report.
Obama plans visit to India in November
Associated Press
President Obama said Thurs-
day that he will visit India in ear- ly November, adding that strengthening ties with the South Asian ally is among his “highest priorities.” Obama’s comments came dur- ing a visit to a high-level U.S.- India meeting at the State De- partment. The inaugural U.S.-In- dia Strategic Dialogue is meant to ease Indian fears that relations
Q: How was that — Q: Well, how could he sit on the board? Q: Yeah, how would that work? Gibbs: He couldn’t.
Q: So why would you offer that? Q: So that wasn’t the offer then? Gibbs: I would refer you to the memo.
Q: Well, what position — what board was it then? Do you know? Gibbs: I’d refer you to the memo. (Cross talk.)
Right. (Laughter.)
Thank you. (Laughs.)
FRIDAY, JUNE 4, 2010
KEVIN LAMARQUE/ REUTERS
with the United States have slipped.
Obama called India a “rising power and a responsible global power.” He added that the United States values “our partnership not because of where India is on a map but because of what we share,” citing social, political and strategic ties. The visit will come one year af-
ter Indian Prime Minister Man- mohan Singh visited Washington and was honored with a state din- ner.
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