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Senator Edward Kennedy: Architect Of Reform, Builder Of Compromise



August 27th, 2009

Editor’s Note: During his 47 years in the Senate, the late Senator Edward Kennedy of Massachusetts was a lion of U.S. health care and health policy. We at Health Affairs, along with much of the rest of America, grieve at his passing.  We recently asked Democratic and Republican politicians, policy experts, and former Senate staff to write for us about the senator’s many contributions.  We now publish several of these on the Health Affairs Blog, including the piece by David Nexon below, and will also issue Web Exclusive versions for the archives in the weeks to come.

 – Susan Dentzer, Editor-in-Chief

Senator Edward Kennedy was the indispensable senator in health care, as in so many other areas of national policy. His influence extended across the broad range of health policy, from the National Institutes of Health to community health centers to the Food and Drug Administration to Medicare and Medicaid. And, of course, his influence encompassed the continuing struggle to guarantee quality, affordable health care for every American.

I had the extraordinary good fortune to work with Senator Kennedy from 1983 to 2005 as his senior health policy adviser and as his chief of the health policy staff on the Senate Health, Education, Labor, and Pensions (HELP) Committee.  In this perspective I discuss the Kennedy approach to health policy making and briefly present two case studies illustrating that approach.

My Introduction To Senator Kennedy

When I first came to work for Senator Kennedy, he had already been in the Senate for 20 years. During that time, he and his staff had evolved an ethos and a way of doing things that had become deeply enmeshed in the day-to-day operations of the office. I quickly absorbed that ethos in the form of three messages that were never spoken but were nevertheless very real.

First, there was an expectation of very high performance. Kennedy worked extremely hard, he aimed high, and he expected his staff to do the same. Just “good” wasn’t “good enough.”

Second, Senator Kennedy had what I would describe as an executive temperament. He knew how to delegate. He didn’t want to do anything a staff person could do for him. He wanted to reserve his time and energy for those things that only a senator could do. He worked harder than anyone I have ever met, before or since, but his ability to delegate enabled him to multiply his effectiveness across a whole set of issues and policy arenas.

Third, the Senator expected his staff to do all the things that staff normally did for a senator — write speeches, analyze legislation, prepare him for hearings and meetings with outside groups, and so on — and to do all those things well. But what he really wanted his staff to do was to come up with new and better ways to improve the health (or the education or the retirement system or the job opportunities or the civil rights) of the American people and help him get these improvements enacted. The “enacted” part of the sentence was as important as the “come up with” part. To some on the outside, Senator Kennedy could appear ideological, but, in reality, he was deeply pragmatic. He was absolutely committed to basic goals — using government as a tool to improve people’s lives, giving every American a shot at the American dream, providing a social safety net for all who need it — but he was very flexible about the means by which those objectives are to be achieved.

Skillful Use Of All The Tools Available

To achieve his goals, Kennedy used a number of tools in his tool kit, pulling each of them out as needed. These included solid policy analysis, since the senator wanted to develop the best policies possible and the best arguments available to support those policies. Other critically important tools were bipartisanship, a deft ability to engage advocates and interest groups, a talent for using the Senate’s rules to advantage his agenda, and a unique ability to build personal relationships, often across party lines.

As anyone who saw Senator Kennedy in a floor debate or speaking on the stump knew, he did not shy away from partisanship. And he did not view bipartisanship as an end in itself. But he also knew that in the Senate, purely partisan votes generally don’t pass legislation. In the HELP Committee, the vast bulk of the health legislation we worked on did not qualify for precious and limited floor time — which meant that it had to be passed by unanimous consent. This required bipartisanship even when we were in the majority. And when we were in the minority, we couldn’t even get an agenda item considered without Republican support. During my time with Senator Kennedy, the HELP Committee had five different Republican chairmen or ranking members with whom we had to negotiate. In virtually every case, Senator Kennedy established a solid working relationship and was able to partner with his Republican counterpart to create a strong record of accomplishment.

On big, controversial bills, which did require a floor vote, Senator Kennedy’s typical strategy was to team up with one or more Republican partners. By making common cause with at least a limited number of Republicans, while holding the Democrats together, the senator could put together the 60 votes generally needed to pass legislation. His unique stature as the leading liberal champion helped him lead progressive Democrats to support compromises that they would not necessarily swallow from other, less trusted Democrats. At the same time, Republican support made it much easier to hold moderate or conservative Democrats who would be nervous about supporting the kind of ambitious legislation Senator Kennedy worked for without Republican support to provide cover. For progressive Democrats, it was hard to be to the left of Senator Kennedy. For moderate and conservative Democrats, it was hard to be to the right of Republican senators like Orrin Hatch of Utah or John McCain of Arizona.

Engaging key advocacy and interest groups was another of Senator Kennedy’s talents. Advocacy and interest groups provide two key roles in passing legislation. They validate its acceptability to members of Congress who look to them for advice. And they mobilize support for the legislation to convert the unconverted, carry the message to the broader public, and provide a counterforce to the opposition. Senator Kennedy was better equipped than almost any other member of the Senate to use groups in this way. The more liberal groups — labor, patients, public health, consumers, senior citizens — all trusted and depended on him, so that they were willing to go to the mat for his priorities, in a way they would not necessarily do for other senators. Other groups know that he was a formidable force and that, since it was impossible to ignore him, it generally made sense to try to work out a compromise with him, if at all possible.

Senator Kennedy also understood how critical it was to mobilize the public — especially on controversial issues, where he knew that a key ingredient for victory was for members to feel that there would be a political price to pay for being on the wrong side. This meant that the public had to be engaged or give the appearance of being engaged. Interest groups could help in mobilizing the public, but attention from the news media to the issue was also important. Senator Kennedy was a master at creating attention for an issue. His own stature helped, but so did well-designed hearings, events, floor amendments, and speeches. He also had an uncanny instinct for sensing when an issue was beginning to ripen and when the public was ready for action.
 
Using the Senate rules to one’s advantage was a skill honed by former President Lyndon B. Johnson when he led the Senate, and Senator Kennedy followed suit. He understood and made use of the rules in all their sublime complexity. In the fight over raising the minimum wage in 1986, for example, Kennedy knew that the issue was so popular that if Democrats could get a vote, they would win — because in an election year, enough Republicans would feel compelled to vote for a raise that it would pass. For that very reason, Sen. Bob Dole of Kansas (who was both the Republican majority leader and a presidential candidate) wanted to avoid a vote. Senator Kennedy essentially used the Senate rules — the unlimited ability to offer amendments unless cloture has been invoked — to tie the Senate up for months until he finally got his vote. The measure passed.

The importance of personal relationships in the Senate cannot be overemphasized, and here, too, Senator Kennedy was a master. He was by nature a charming person, and he worked at establishing and maintaining friendly relationships with his colleagues. It was a rare senator, of whatever political persuasion, who didn’t like him on a personal level. It wasn’t that Kennedy charmed people into supporting things that they oppose. He and Senator Hatch, for example, were very good friends, but any time Senator Kennedy partnered on a bill with Senator Hatch, it ended up as a genuine compromise representing the views of both. The personal relationship created an openness to trying to collaborate that might not have existed with some other senator. And these relationships didn’t stop with the Senate: During my time with Senator Kennedy, he managed to establish good relationships with almost every secretary of health and human services, FDA commissioner, and CMS administrator, regardless of party.

The Senator’s Mark On Health Policy

The mark Senator Kennedy made on the nation’s health policy can’t be overestimated. Key legislation we worked on together — during a period of time that represented less than half of his Senate career — amounts to a roll call of the nation’s signal health policy achievements in recent decades.  On the financing/insurance regulation side, Kennedy’s achievements include:

• Extension of health insurance coverage for the unemployed under the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986. This constituted the first serious federal regulation of private health insurance plans since passage of the Health Maintenance Organization Act in 1973, which itself was in part a Kennedy achievement. COBRA today provides quality insurance protection to several million Americans annually who lose job-based insurance.
• The Emergency Medical Treatment and Active Labor Act (EMTALA), also enacted in 1986, which prohibits hospitals from turning away emergency patients because they have no health insurance.
•  Mental health parity, provisions of which were enacted in 1996 and the Mental Health Parity and Addiction Equity Act of 2008.
• The Children’s Health Insurance Program (CHIP), enacted in 1997. Today CHIP provides coverage to more than six million children in low- and moderate-income families and has also prompted the enrollment into Medicaid of many children who were eligible for the program but weren’t participating.
• The Genetic Information Nondiscrimination Act of 2008.

On the public health side, a small selection of the many accomplishments of this period include:

• A whole array of legislative initiatives to deal with the AIDS epidemic, including, most prominently, the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, first enacted in 1990 and reauthorized several times since then.
• Smoking reduction, including enhanced cigarette labeling, the increase in the tobacco tax used to finance CHIP, and the long fight to subject tobacco products to FDA regulation, which was finally successful this year.
• The Public Health Threats and Emergencies Act of 2000 and successive laws passed since then. This legislation was the first to begin the effort to develop a national infrastructure to protect against bioterrorism — conceived and put in place before 9/11.
• The Breast and Cervical Cancer Mortality Prevention Act of 1990, which was the beginning of the federally funded breast and cervical cancer screening program for low-income women.
• The user fee programs for drugs and devices, a remarkably successful approach to providing the FDA with the resources it needed to move safe and effective products more quickly to patients while improving the ability to assure that approved products were indeed safe and effective.
• The Food and Drug Administration Modernization Act of 1997. This legislation included some needed streamlining of FDA regulatory processes but was most notable because Senator Kennedy was able, almost single-handedly, to block attempts to gut the agency’s authorities by the radical deregulation forces empowered by the Republican victory in 1994.

Of course, many of the legislative activities in public health of this period did not result in new, major programs. Instead, they were improvements or mid-course corrections of programs Senator Kennedy had created or shaped during earlier periods. The senator was the creator of the Community and Migrant Health Centers Program. He made a major mark on the National Institutes of Health, especially as the initiator of the “War on Cancer.” He led the hearings that resulted in creation of the “common rule,” a standard for protection of human research subjects — then authored the legislation that created the legal framework for the common rule as well as for institutional review boards and other requirements for human subjects protection.

Senator Kennedy created most of the categorical programs that were later folded into the preventive health block grant and the mental health services block grant. The latter included creation of the community mental health centers, which are still a key feature of the nation’s public mental health service infrastructure. Subsequently, he oversaw a major reorganization of federal mental health activities that included movement of the three behavioral research institutes to the NIH and strengthened federal support for substance abuse and mental health services through the new Substance Abuse and Mental Health Services Administration. More generally, the senator fought against stigmatization of mental illness and fought for more emphasis on treatment and prevention as the key to an effective anti-substance abuse strategy.

Senator Kennedy was a key shaper of the health personnel programs under Titles VII and VIII of the Public Health Service Act; among other innovations during this period, he added geriatric training to the list of supported activities. He was the lead author of the Medical Device Amendments of 1976, which established the modern framework for regulation of medical devices and diagnostics. And so on. In fact, it is difficult to think of a health program under the Public Health Service Act on which Senator Kennedy did not have a major influence.

In the end, it was Senator Kennedy’s role in passing two major pieces of legislation that best illustrates his unique approach. One is the Kassebaum-Kennedy insurance reforms, known as the Health Insurance Portability and Accountability Act (HIPAA) of 1996. The law guarantees millions of Americans that they can change jobs without worrying about preexisting condition exclusions as well as availability of coverage for groups as small as two employees. The second is Medicare prescription drug coverage, enacted as part of the Medicare Modernization Act of 2003.

Passage Of Kassebaum-Kennedy (HIPAA)

Kassebaum-Kennedy grew out of the wreckage of the effort to pass universal coverage under President Bill Clinton. Immediately after the 1994 election, a disaster for congressional Democrats, Senator Kennedy convened his health staff to discuss what he should push next in health policy. As a starting point, we reviewed the elements that universal coverage bills had in common and that, in theory, should be able to draw bipartisan support. Both the Democratic bills and their bipartisan competitors made special provision for coverage of children, so we originally thought we would try to move a bill expanding health insurance coverage for children.

Senator Kennedy met with a number of potential Republican cosponsors but seemed to get nowhere. Even Sen. John Chafee of Rhode Island, one of the leading child health advocates in the Congress, was glum. He told us that for incoming new members of Congress, expanding health insurance coverage was a nonstarter, because the GOP agenda was all about cutting programs and deficit reduction. We knew it was time to go back to the drawing board.

A feature that all the major Democratic and Republican health reform bills of the early 1990s had in common was insurance reform — especially reforms addressing the problem of preexisting conditions, a very real barrier to millions of Americans who wanted to change or leave a job. One-half of all individuals with employment-based plans were subject to preexisting condition exclusions in their policies. The situation was worse for individual policies. In this case, the senator found his Republican partner in Sen. Nancy Kassebaum of Kansas, the new chair of the HELP Committee.

In developing the bill with Senator Kassebaum, Senator Kennedy had to make one major concession: forgoing any limits on variations in premiums for individuals or groups (although the bill ultimately did prohibit variations in premiums charged to individuals within groups). Senator Kassebaum told Senator Kennedy that any such limits would be viewed by Republicans as too great an interference with the market and would kill the bill. He reluctantly accepted her conclusion. The legislation was supported by the AFL-CIO, AARP, Consumers Union and other consumer groups, Blue Cross Blue Shield, and the National Association of Insurance Commissioners, among others. It was overwhelmingly popular with the public, but there was behind-the-scenes opposition from the Health Insurance Association of America and individual insurers, as well as conservatives who viewed it as an inappropriate expansion of federal power.

The bill was reported out of the HELP Committee with a unanimous vote, but then it stalled. Conservative senators, backed by Senator Dole, put in a system of “rolling holds,” under which a senator can secretly notify the leader of his party that he will object to floor consideration of a bill. Bills are typically brought to the floor by being called up by the majority leader. If any senator objects to the bill being brought up, cloture must be invoked before the bill can be considered. A secret “hold” on a bill allows a senator to object to a bill being considered without any ability to hold the senator involved publicly responsible. Of course, the majority leader can ignore the hold and move to bring the bill to the floor; this requires the objecting senator to stand up in public and object. Under a “rolling hold”, if a senator is asked if he has a hold on the bill and does not want to admit he is the culprit, he can deny he has a hold and secretly lift his hold, but only after making sure that another senator has put a hold on in his place.

After several months of frustration in which Senator Dole refused to schedule the bill for floor action on the grounds that there were holds, we turned to the news media. We gave the Washington Post the full story, and the newspaper ran a report on the secret holds that were keeping the bill from going to the floor. The then-popular ABC news show Nightline subsequently did a similar story that featured an interview with Senator Kennedy in which he fixed responsibility for inaction squarely on Senator Dole, by pointing out it was ultimately the majority leader’s responsibility to determine whether or not to call a bill up. Nightline tracked Senator Dole down in a motel in New Hampshire, where he was campaigning in the New Hampshire primary. As Dole walked down the hall — trailed by the camera and a reporter — he was asked why he wouldn’t bring Kassebaum-Kennedy to the floor. He refused to respond to repeated questions until he finally muttered that there were “holds on the bill, lots of holds” and ducked into a room, shutting the door behind him. This whole episode was sufficiently embarrassing that we got a call from Senator Dole’s chief of staff the next day wanting to negotiate the terms of a unanimous consent to bring the bill to the floor.

When the bill did come to the floor, it was expected to pass overwhelmingly. An additional complication ensued, however. Several years earlier, Pat Rooney, the head of the Golden Rule Insurance Company and a major donor to Republican campaigns, had come up with the concept of “medical savings accounts” (MSAs).  The MSA, which has since given rise to the similar health savings accounts, or HSAs, was a high-deductible health plan that had a tax-favored savings account linked to it. Funds deposited in the savings account could be used to cover the high deductible and copayments in the health plan. With Rooney’s enthusiastic sponsorship and support from a conservative think tank he endowed, MSAs had somehow become a key conservative answer to the heath care cost problem. Golden Rule, incidentally, had a dismal track record as one of the most cutthroat companies in the individual insurance business, prone to find reasons to disallow claims for individuals on the grounds they hadn’t revealed preexisting conditions, even when the link between the alleged omission and the claim was extremely tenuous.

Senator Dole picked up the MSA concept as his way of demonstrating his conservative health bona fides, and giving something to the insurance companies who were opposed to Kassebaum-Kennedy. He announced he would offer it as an amendment to the bill. Kennedy was worried about MSAs being included in the program. He had seen several studies and had received private briefings from experts indicating that the availability of MSAs would promote extensive risk selection, as healthier people opted for the accounts and high-deductible plans and left sicker people in conventional health insurance. Kennedy feared that this dynamic would unravel the market for comprehensive policies — although, in retrospect, such fears were probably overblown. Moreover, he was generally cool to high-deductible policies, since he thought they deterred necessary as well as unnecessary care, especially for low- and moderate-income people.

Since the reason for Kassebaum-Kennedy was to make the insurance market work better for people with health issues, not worse, he was not willing to accept this amendment, and Senator Kassebaum agreed with him. When the amendment came to a floor vote, Senator Dole suffered a humiliating defeat. The underlying bill then passed 100-0. Senator Dole announced, however, that he would assure that the conference committee restored MSAs and reminded the reporters at the press conference that, as majority leader, he had the power to appoint the conferees.

Although it was true that Senator Dole had the power to appoint the conferees, it is also true that that appointment of conferees is a debatable motion. Senator Kennedy announced his intention to filibuster the appointment of conferees unless a majority of the conferees represented the position of the Senate on MSAs (i.e., opposed them). And there the matter rested for some time, with Senator Kennedy regularly taking the floor to excoriate Senator Dole and the Republicans’ failure to act to protect the American people and detailing the problems with MSAs and the sorry record of the Golden Rule insurance company.

Absent the appointment of conferees, Senator Kassebaum began negotiations with House Republicans, who had passed a more limited bill including MSAs. She was able to work out much of the substance of the bill, but not the MSA question or how to handle the issue of people who had lost their coverage and needed to buy in the individual market. After holding out for some time on the MSA question, she indicated her willingness to accept MSAs as part of the bill — a position that was not acceptable to Senator Kennedy.

At this point, multiple forces intervened to push a compromise forward. Among the most prominent, of course, was Senator Kennedy. He had developed a compromise proposal of his own that would allow for creation of a relatively small number of MSAs that would be unlikely to destabilize the health insurance market. He decided to meet in person with the key House Republican player in the conference negotiations, Bill Archer of Texas, the powerful chairman of the House Ways and Means Committee.

Senator Kennedy prepared himself well for the meeting, in part by boning up on details about Archer. He discovered that Archer had an aged mother to whom he was very devoted, so when he met with Archer, Kennedy brought her greetings from his own mother, Rose, as well as a copy of Rose’s autobiography as a gift for Archer’s mother. He also discovered that Archer was a fan of Bela Karolyi, a famous gymnastics coach who had defected from Rumania and settled in Archer’s district, where he trained Olympic gold medalist Mary Lou Retton, among others. So Kennedy also came prepared to talk about gymnastics.

After pleasantries, the meeting got down to business. Archer was a tough bargainer but agreed to a three-year MSA demonstration with enrollment restricted to individuals and small employers with fewer than 50 employees. Kennedy was confident that the number of people who would enroll under these restrictions would not be large enough to destabilize the market. Once the compromise was agreed to, Kennedy allowed conferees to be appointed, a conference report was prepared, and the compromise as negotiated by Kennedy and Archer easily passed both House and Senate. And Kennedy turned to two new major projects: the Patients’ Bill of Rights and CHIP.

Medicare Prescription Drug Coverage

Historically, the biggest gap in Medicare benefits was the program’s failure to cover prescription drugs. This gap loomed larger and larger over time, as drugs became increasingly important in patient care and increasingly costly. Kennedy had had a long-standing interest in this issue and had actually introduced a bill for prescription drug coverage for the elderly in the late 1970s with Republican Senator Strom Thurmond of South Carolina.

Right after CHIP passed in 1997, Senator Kennedy decided that Medicare coverage for prescription drugs had the potential to be the next big achievement in health policy. He proceeded on several fronts. First, he introduced legislation with Democratic Senator Jay Rockefeller of West Virginia and started lining up and energizing the advocacy groups behind it. Second, he successfully pressed President Clinton to include prescription drug coverage in his FY2000 budget. Finally, and perhaps most important, he concluded that there was no way a program of this magnitude was going to pass — especially in a Republican Congress — without the support of the pharmaceutical industry.

Reaching out to the drug industry was a similar approach to finding a Republican partner, because Kennedy knew that if the industry supported the program, it would be a green light for many Republicans to come on board. Kennedy approached the job of developing drug company support systematically. Discussions with the Pharmaceutical Research and Manufacturers of America (PhRMA), the trade association for the drug companies, weren’t going anywhere, so the senator set up meetings with each of the CEOs of the major drug companies to discuss the issue and to find one who was interested in working something out.

Most of the executives were flattered to be asked to meet one-on-one with Kennedy and seemed personally to relish the interaction. Yet only one took up the offer to try to negotiate: Gordon Binder, the CEO of Amgen. Ironically, Binder was a rather hard-shelled Republican who came to the meeting deeply skeptical of Senator Kennedy but came away interested in seeing if something could be worked out. He was encouraged by the head of Amgen’s office, Peter Teeley, an astute judge of both politics and policy, who had a long and close personal and professional relationship with the first President Bush. Binder was an especially important ally, because he occupied the rotating chairman’s post at PhRMA that year. Binder was also instrumental in recruiting Ray Gilmartin, the CEO of Merck. Ray was a progressive thinker who, by force of personality and intellect, was probably the most influential member of the PhRMA board of directors. The two of them brought PhRMA from opposing all Medicare coverage of prescription drugs, to support for prescription drug coverage but only in Medicare Advantage plans, to support for a universal benefit.

Negotiations with the Amgen staff, with input from Merck as well, brought us to agreement on a draft bill. The legislation provided what the negotiators dubbed a unique bipartisan compromise: “Democratic benefits through a Republican delivery system.” The Republican delivery system was a privatized approach to the benefit delivery — essentially, a premium-support program under which the government paid a fixed amount toward enrollees’ premiums and enrollees chose from among competing private insurance companies offering the benefit. From the drug company point of view, this kept the government as far away from setting drug prices as possible. The Democratic benefit package was essentially broad coverage of prescription drugs — the largest expansion of the Medicare entitlement since it was originally enacted. Although this bill was never formally introduced, it became the basis for the compromise that ultimately passed.

Much happened, of course, before drug coverage finally became law. The issue became prominent in the 2000 presidential election, prompting even the Republican candidate, then Texas Governor George W. Bush, to put forward his own limited and means-tested version of Medicare drug coverage. Once Bush was elected president, Kennedy stoked the flames with public forums and speeches, offering amendments on each of the annual budget bills to include funds for a Medicare prescription drug benefit.

 Kennedy also joined other Democrats, most notably Senators Bob Graham of Florida and Zell Miller of Georgia, in offering legislation that became the Democratic Party flagship bills. These bills followed a more conventional Democratic approach to the benefit than the program negotiated with the drug industry. In the meantime, popular pressure forced Senate Republicans to develop their own legislation. House Republicans passed a bill that had a Republican delivery system similar to what Kennedy had negotiated with the drug companies — and a benefit that was far more generous than anything Republicans had previously put on the table.

Just before the 2002 mid-term election, there was a notable stand-off in the Senate, where Republican and Democratic dueling bills were both offered, but neither could gain the 60 votes needed for passage. After the election, President Bush and the Republican leadership decided that passing a Medicare drug bill was key to retaining the presidency and control of the Congress in 2004 — and that restructuring Medicare was to be part of the deal. What followed once again demonstrated Senator Kennedy’s central role in achieving bipartisan agreement.

Senator Max Baucus of Montana, who led Democratic efforts to negotiate a bipartisan compromise on Medicare drug coverage, was an effective negotiator but was distrusted within the Democratic caucus. Senator Kennedy worked closely with Baucus on the negotiation and provided critical support within the Democratic caucus — support essential to bringing Democrats along to pass the bill. In the end, despite their dislike of the “Republican delivery system,” three-quarters of the caucus supported the legislation that was eventually developed, and the bill passed 76-21. By contrast, Democrats in the House were united in their opposition to the comparable House bill, and it squeaked out a narrow one-vote victory.

The conference proved long and contentious. Baucus fought hard for the Senate position but was outnumbered in the negotiations with Republicans; for example, he and Senator John Breaux of Louisiana were the only Democrats allowed in the negotiating room. The bill moved to the right on several issues involving the benefit, but most damaging from the Democratic point of view was Baucus’s ultimate acceptance of a “premium support” demonstration program for Medicare that Democrats feared would ultimately dismantle the whole structure of conventional fee-for-service and force beneficiaries into private managed care “Medicare Advantage” plans. This was a bridge too far for Kennedy, who ended up opposing the conference report. Enough Senate Democrats went with him that conference report survived a budget point of order in the Senate by only two votes.

Despite Senator Kennedy’s last-minute opposition to the bill, it passed. In effect, its passage was ultimately a triumph for Kennedy, and one of his most important achievements. He had mobilized support for the issue early on. He was tireless in working to keep it in front of the public. His use of the budget resolution to bring the issue to the floor every year and force Republicans to vote for ever-increasing sums for the program was masterful. The framework he negotiated with the drug companies became the central compromise that made the whole program possible and was instrumental in bringing the drug companies to provide essential support for the program.

A Lasting Legacy

Senator Kennedy used these tools like the master legislative craftsman he was to achieve policy success. But a listing of strategies — and even of accomplishments — can’t truly do justice to the man and his impact. With Senator Kennedy there was a magical alchemy of passion, commitment, energy, and charisma, leavened with humor, that no formula can replicate and no one can imitate. In health policy and in so many other areas of our national life, he was a senator for the ages.

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1 Response to “Senator Edward Kennedy: Architect Of Reform, Builder Of Compromise”

  1. Ellen R. Shaffer Says:

    Senator Ted Kennedy was a hero for many reasons, most prominently his dogged commitment to health care reform. But he also understood that our health in the U.S. is linked with conditions around the globe, and that U.S. policy on trade influences both. One of the last bills Senator Kennedy co-sponsored was S.1644, introduced earlier this month by Senator Stabenow, to make sure that when it comes to trade, the United States makes public health a priority.

    I had the good fortune to work with Senator Kennedy and David Nexon during the health reform debates of the 1990s, when I was the health policy advisor to Sen. Paul Wellstone. In 2005, my organization, the Center for Policy Analysis on Trade and Health (CPATH), found strong allies in both Sen. Kennedy’s and Sen. Stabenow’s offices for legislation to create a new advisory committee within the Office of the U.S. Trade Representative that would serve as the voice of public health in all trade agreements. As a result of debates around the Australia Free Trade Agreement in 2004, we all realized that the pharmaceutical, tobacco, health insurance and other lobbies’ disproportionate influence on trade advisory committees benefited those industries but jeopardized health worldwide. In particular, the Australia agreement could restrict access to life saving medicines for our trade partners – and for Americans, too, because of restrictions on reimportation.

    The Australia agreement passed, but when Congress took up the Peru Free Trade Agreement a few years later, they succeeded in removing some of the more egregious Intellectual Property and other provisions that would have kept needed medicines out of reach for the people of Peru.

    It soon became clear that approaching each agreement was not the solution; that we should instead put health concerns on an equal footing with business interests in our trade policy more generally. Trade agreements provide a basis for altering domestic U.S. laws and policies, as well as those of our trading partners. Senator Kennedy understood that trade rules must find a balance between keeping goods and services flowing, corporations’ need for uniform and predictable rules, and the obligations of governments to protect the public’s safety and wellbeing.

    As research by CPATH shows, in a study released by Health Affairs on Aug. 25, Intellectual Property protections written into CAFTA (the Central America Free Trade Agreement) are having a catastrophic effect on Guatemala’s health system. The cash-strapped Ministry of Health is now paying up to 864% higher prices for brand name drugs than they would pay for generic alternatives. Generics – many produced by Guatemalan companies – are often barred from entering the market and even pulled from the shelves in the wake of CAFTA.

    According to a contact there, because of cost-cutting efforts, she and others living with HIV/AIDS are now allotted their medications in eight-days doses, meaning they must make sometimes arduous trips to the nearest clinic four times every month. Imagine taking one day a week away from work and family obligations just to fill a prescription.

    Senator Kennedy devoted the estimable efforts of his health office staff to drafting legislation for a Public Health Advisory Committee on Trade (PHACT). He was an original co- sponsor of the bill just introduced by Senator Stabenow, also long a champion on this issue. S.1644 requires that public health organizations be included on the Advisory Committee for Trade and Policy and Negotiations, and establishes a new Tier 2 Public Health Advisory Committee on Trade (PHACT). Language in the bill not only introduces balance, but also improves transparency and accountability as trade policy is developed. A similar bill is in the House, and I am hopeful that President Obama will soon sign it into law.

    Ted Kennedy will be remembered as a fierce advocate for the voiceless and the powerless here at home, but many of us will also remember his principled leadership and advocacy to link our concerns at home with those of people around the world.

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