I woke up with a throbbing headache, a sore throat, and a very runny nose. On any other day I would have stayed in bed, but March 29, 1990, was not any other day. It was the day on which the Senate was scheduled to vote on an amendment to the Clean Air Act offered by Senator Robert Byrd. For nine years I had struggled to make progress on legislation to deal with the growing problem of air pollution. Now we were on the verge of success. But adoption of the Byrd amendment could mean the end of our effort. The outcome was uncertain; the vote would be very close. I had to be there to speak and to vote against the amendment, no matter how bad I felt. I knew that exhaustion and stress from two relentless, pressure-packed months of negotiating, debating, and voting were contributing factors. But I had to retain my focus, for today and for a few more days.
The early settlers had spread across a continent that seemed limitless, but the steady increase in population, rapid industrialization, the movement of people from farms to cities, and the invention of the motor vehicle irrevocably changed the lives of Americans. By the time Ed Muskie entered the Senate, 85 percent of our waterways were polluted, as was the air in most large urban areas. Muskie was the principal author of the landmark laws that reversed both trends. Today 85 percent of our waterways are clean and the level of air pollution has been substantially reduced despite increases in the numbers of people and motor vehicles. The assault on air pollution began with the emergence of clear and convincing evidence of its adverse effects on the health of millions of Americans. That led directly to passage of the Clean Air Act of 1970, which was aimed primarily at automobile emissions. The Act was amended in 1977 to extend some deadlines for compliance, and also to bring under its scope new industrial sites in those areas in which the law’s air quality standards were not being met and to prevent the degradation of air quality in those areas in which the standards were being met.
I was appointed to the Senate just three years after adoption of the 1977 amendments. It was already clear then that further changes were needed to meet new challenges. On July 31, 1981, I said, in a speech to the Senate:
The issue of acid rain continues to grow as an environmental, international, and economic problem. . . . It has already been documented that approximately 50 percent of the high elevation lakes in the Adirondack Mountains no longer support fish life . . . as the acidity of these lakes has markedly increased. Maine lakes have undergone a similar change over the past 40 years; an eightfold increase in acidity has been measured.
For the next nine years I was among a small group of senators who worked hard to bring the issue to the attention of the public and to move legislation forward. Through a series of public hearings and statements on the Senate floor we made some progress in publicizing the problem, but we were wholly unsuccessful on the legislative front. There were many obstacles; among them were the president and the Senate majority leader.13 President Reagan wanted to terminate the Clean Air and Clean Water acts, not improve them. He nearly succeeded on the Clean Water Act, but it survived because the Senate overrode two presidential vetoes. Although Reagan was not as aggressive in trying to end the Clean Air Act, he was adamantly opposed to expanding or improving it. Senator Byrd did not share Reagan’s broad hostility to regulation but was concerned about and protective of West Virginia interests, in particular the jobs of coal miners. Clean air legislation was seen as a threat to those miners, especially any action on acid rain. The principal objective of the proponents of legislation, like me, was to reduce the amount of sulfur emitted from midwestern power plants, many of which burned high-sulfur coal from West Virginia. Over the decade of the 1980s evidence had accumulated that emissions from those plants were being deposited in the lakes and streams of the northeastern states and the provinces of eastern Canada. The Canadian government, alarmed by the acidification of its waters, actively urged a reduction in emissions. But the possibility of action remained remote. Then came the elections of 1988.
During my campaign for majority leader I made it clear to my Democratic colleagues that if elected I intended to vigorously pursue clean air legislation. I did not want anyone to feel misled. Of much greater significance was the decision by the newly elected president, George H. W. Bush, to support clean air legislation. Within a month of his inauguration, in a break with the policies of the Reagan administration, Bush announced that he would propose legislation for a new, more effective Clean Air Act, including action on acid rain. President Bush’s courageous decision made action on clean air legislation possible. Suddenly, dramatically, the question shifted from “Will there be a clean air bill?” to “What will be in the clean air bill?” I was impressed and heartened by the president’s statement. My colleagues on the Senate Committee on Environment and Public Works and I immediately began to prepare for what we knew would be a long and complicated process. But we greatly underestimated just how long and how difficult it would be.
To highlight the importance of the issue, in June President Bush used the East Room of the White House to outline his clean air proposal. The centerpiece was control of acid rain. Several factors led the president and his advisors to that decision:
(1) The subject had received the most political attention during the national clean-air debate and for years had been widely discussed on Capitol Hill, though consensus had proved elusive. (2) Resolution of the issue was especially important to Canadian prime minister Brian Mulroney, who had become a confidant of Bush. (3) The solution to the acid-rain conflict offered a market-oriented mechanism that appealed to the administration’s free-market ideological principles. (4) In the end, the debate over acid-rain control became a numbers game that the Bush team knew could be settled with old-fashioned horse trading, at which members of Congress are especially adept.14
Making an announcement and drafting a bill in formal legislative language are two very different things. When the president sent his bill to Congress in late July its provisions did not fully match the rhetoric of his statement in June. But that did not detract from the importance of his action. We had a serious proposal to consider, and we began immediately. Within days a House subcommittee chaired by Representative Henry Waxman of California, a staunch advocate of strong clean air legislation, held the first congressional hearing on the president’s bill. Waxman, a dynamo of intelligence, energy, and intensity, had been elected in 1974 and was involved in a wide range of legislation on health care, the environment, and women’s rights.
The relevant committee in the House was the Energy and Commerce Committee, chaired by Representative John Dingell Jr. of Michigan. Like many immigrants, Dingell’s father, of Polish descent, had changed the family’s original name, Dzieglewicz; he was elected to Congress in 1933. When he died in 1955 his son won a special election to succeed him. John Jr. was the longest serving member of Congress in American history.
In the Energy and Commerce Committee the bill fell within the jurisdiction of the Health and Environment Subcommittee, chaired by Waxman. Dingell and Waxman are dissimilar in size, approach, and outlook on issues, but both will be judged by historians to be among the greatest and most influential legislators in the House in the late twentieth and early twenty-first century. Much attention has been paid to their differences, and less than is justified to their similarities. The fact is they both represented their constituencies with a high level of intelligence and energy. It just happened that their constituencies had different interests. Waxman’s district, based in Beverly Hills, is one in which air pollution, and public concern about it, is high. Indeed concern is high in all of California, a fact recognized in the autonomy granted by federal law to that state in air pollution issues. The California Air Resources Board is widely recognized as one of the world’s preeminent public bodies dealing with such issues. Dingell’s district, based in the suburbs of Detroit, is home to automobile manufacturers and thousands of their workers.
For the previous decade, from my position on the Senate Committee on Environment and Public Works and especially when I served as chairman of the Environmental Protection Subcommittee, I worked with Dingell and Waxman on a wide range of issues. Despite their differences, despite the widespread view among some business and environmental groups that Dingell would oppose any meaningful clean air legislation, I believed that if we in the Senate could somehow pass a bill, Dingell and Waxman would resolve their differences and enact good and strong legislation.
The Senate does its business through committees; each senator serves on several. When a senator is elected majority leader he (and soon, hopefully, she) may continue to serve on committees and as chair of a subcommittee, but not as chair of a full committee. I therefore could have continued to serve as chair of the Environmental Protection Subcommittee, but I voluntarily relinquished the position, although I continued to serve on the committee. I gave it up because I wanted to concentrate fully on the position of leader and also because I liked and trusted Max Baucus, who replaced me as chair.
As Dingell and Waxman struggled to move a bill through their committee in the House, Max and I worked diligently to gain approval of a strong bill in the Senate committee. We were greatly aided by several of the other senators on the committee who were deeply committed to the passage of strong clean air legislation. Among them were Frank Lautenberg of New Jersey, a Democrat, and John Chafee of Rhode Island and David Durenberger of Minnesota, both Republicans. Chafee and Durenberger were following a long tradition, since abandoned, of Republican leadership on environmental issues. The previous Committee chairman, Republican senator Robert Stafford of Vermont, a soft-spoken and reserved man with a spine of steel, was a staunch protector of the environment and an advocate of clean air legislation; he had helped to keep the issue alive through the previous decade. We all knew that the Senate Committee bill would be the high-water mark for the legislation and that we would have to compromise it down with the White House, so the Committee approved the strongest possible bill in November.
There were substantial differences between the Committee bill and the administration’s proposal. On every issue, including the major ones—acid rain, smog, toxic chemicals, fuel efficiency standards on motor vehicles to reduce emissions of carbon dioxide—the Committee bill generally required more and faster action than the administration’s bill. The administration estimated that its bill would cost $20 billion a year and that the Committee bill would cost twice as much. We believed that the difference was not that great and that the estimated health costs of $40 billion to $50 billion a year should be considered in evaluating the costs and benefits of the two bills. There also was a significant difference in how the bills would be enforced. The Committee bill relied on the existing regulatory mechanism; it had been in place for years. The president proposed a new, untried, market-based system that he called cap-and-trade.
I had stated several times my intention to bring the bill to the Senate floor for consideration as soon as possible after Congress returned from its Christmas break. I did so on January 23, 1990, knowing that the technical complexity of the issues meant that we would not be able to move the bill rapidly. Senators, most of whom were not on the Committee that had drafted and reported the bill to the full Senate, needed time to review and digest its contents. I was optimistic and thought it might take two weeks. In fact it took ten intense and difficult weeks.
Just before I brought the bill up in the Senate, the president sent a letter to Senator Dole setting forth his opposition to several provisions in the Committee bill. For their part the environmental groups suggested ways the bill could be strengthened. I found myself in the middle, trying to find a way to satisfy several competing interests. Almost immediately the environmental organizations proposed and pushed for an all-or-nothing approach. They wanted me to force a vote by the full Senate on the bill as it was reported out of the Environment and Public Works Committee. But everyone knew that would trigger a filibuster; the bill was very complicated and several senators, Democrats and Republicans, would vote against it because they couldn’t accept one or more of its provisions. After a decade of working on the issue I had a good sense of where each senator stood. Not only could we not get the sixty votes necessary to end a filibuster, we couldn’t even get a simple majority of fifty-one. In addition I felt the president had made a good faith effort in advocating for clean air legislation; it would be wrong and unfair to start the process by forcing him into a position of opposition.
I talked through the situation with my staff, with my colleagues on the Senate Committee, and with Bob Dole. Dole had been through an intense primary battle with Bush for the Republican nomination for president in 1988. On one memorable occasion Vice President Bush was presiding over a Senate debate when Dole, angry about a Bush campaign ad that he felt misrepresented his record, walked up the few steps to the presiding officer’s chair and said to Bush, “Stop lying about my record.” I was standing just a few feet away and was startled, as was Bush. He denied the charge, Dole repeated it, and the incident ended. But it was clear that relations between them were strained. However, once Bush was elected they patched up their relationship, and now Dole was being a good soldier, working to protect the president’s position on clean air. Dole also personally opposed the bill the Senate Committee had produced and made it clear to me that unless some changes were made he would work hard against it. He suggested that he and I meet with some of the key administration officials on this issue. Those involved in the drafting of the administration’s bill included Roger Porter, the principal domestic policy advisor to the president; Boyden Gray, the White House counsel; Bill Reilly, the administrator of the Environmental Protection Agency; and Robert Grady of the Office of Management and Budget. Throughout the process that followed I talked with all of them and with others, including the president himself and his chief of staff, former New Hampshire governor John Sununu. Our first meeting was with Porter and Grady. Over the following weeks they served as the principal negotiators for the president. They proved to be effective and honorable negotiators. I developed, and retain, great respect and affection for both of them. We had many differences, but we were able to compromise them to a reasonable conclusion through a difficult but fair and responsible negotiation.
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 somewhat 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 because 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.
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 Senate 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.