Congress is supposed to represent the voters, and it sometimes does. Although much of the left opposed welfare reform, the final bill probably reflected what a majority of voters wanted Congress to do. Likewise budget balance. Yet when issues impinge on the power of business, Congress doesn't always do what the public wants. Since the late 1970s, powerful business lobbies have enjoyed veto power over legislation they see as threatening. They have exercised that power primarily through Senate Republicans who can use that chamber's arcane rules to throttle any bill that the U.S. Chamber of Commerce, the Business Roundtable, or the National Association of Manufacturers (NAM) doesn't like, even if the public and a majority of the Congress support it. This fall they killed a strong auto safety bill and seemed to have killed the patients' bill of rights.
About a month ago, nothing seemed more certain than the passage of a new auto safety bill that would strengthen the hand of the National Highway Traffic Safety Administration (NHTSA) in regulating the auto and tire companies. In August NHTSA announced that it was investigating 46 deaths from the use of Firestone tires in the United States. Over the next two months, that figure steadily rose from 46 to 62 to 88 to 101 deaths, along with 400 injuries, most of which occurred when Firestone tires were used on Ford Explorers. Firestone had ordered a recall of the Explorer tires in August, and Firestone and Ford executives insisted that, before then, they had not known the tires to be the cause of the many Explorer accidents. But during congressional hearings in September, it became abundantly clear that the two companies had understood something was seriously wrong: They had earlier begun replacing the Explorer tires in Saudi Arabia, Colombia, Ecuador, and Venezuela.
The report of fatalities and the evidence of a cover-up created a groundswell for new legislation. On September 20, the Senate Commerce Committee passed on a 20-to-0 voice vote a tough bill sponsored by Chairman John McCain and ranking minority member Ernest Hollings. It would have required manufacturers to provide NHTSA with warranty and accident data that they had previously withheld, and to inform the agency immediately of potential defects. For noncompliance the bill set criminal penalties at up to 15 years in jail and up to $15 million in fines. Two weeks later, the House Commerce Committee passed a similar bill by 42 to 0.
Consumer groups couldn't contain their glee. "This is a big moment for product safety," enthused Sally Greenberg, the Consumers Union's senior product safety counsel. Reporters covering Congress also believed that an auto bill was a sure thing. In a September 22 article headlined "Tire Backlash Turning Tide for Auto Safety," Los Angeles Times reporter Ricardo Alonso-Zaldivar wrote, "Congress is rapidly moving to grant new powers to regulators at the National Highway Traffic Safety Administration, and the industry seems to have been caught unprepared." But it turned out that the auto industry and Washington's business lobbies were not unprepared; they even had a strategy to defeat the legislation.
The U.S. Chamber of Commerce, NAM, the Alliance of Automobile Manufacturers, and lobbyists from the car and tire companies denounced both bills, but they concentrated their fire on the Senate bill because its criminal penalties were much tougher. They also knew it is easier for lobbyists to kill a bill in the Senate than in the House. In the Senate, a lobbyist needs only a handful of sympathetic senators. According to Senate rules, any member can filibuster a bill. If those in favor of the bill can't summon 60 votes to invoke cloture, the bill will not come up for a vote. Short of doing that, a single member can put a "hold" on a bill or a judicial nomination to delay its coming to the floor. A hold is a threat to filibuster, and with a session about to end, it can as effectively kill a piece of legislation as an outright filibuster.
When McCain sought to introduce his committee's legislation on October 6, Majority Leader Trent Lott announced that three senators had put a hold on it. The three refused to identify themselves (and, in keeping with Senate rules, didn't have to), but according to sources in the Commerce Committee, the three were Republicans Orrin Hatch of Utah and Mitch McConnell and Jim Bunning of Kentucky. Hatch has always been a reliable ally of the business community on labor and regulatory issues. McConnell has a personal animus against McCain because of McCain's support for campaign finance reform. And McConnell and Bunning represent a state with major auto and tire producers, including Ford, General Motors, Toyota, Goodyear, and Continental General Tire. In addition, none of them had to fear the wrath of the voters this year. Hatch was well ahead of his poorly financed challenger, and McConnell and Bunning were not up for re-election.
The three senators' maneuver did kill any chances for McCain's legislation. "The fix is in from the special interests," McCain lamented. But at the last moment, the senators, faced with intense pressure from colleagues worried about their re-election, agreed to allow a vote on the weaker house bill. That passed the Senate unanimously.
The battle over whether to enact a patients' bill of rights goes back to the beginning of Bill Clinton's second term. In February 1997, with the public up in arms against HMOs, Massachusetts Senator Edward Kennedy and Michigan Representative John Dingell introduced a bill to regulate managed care plans. In the House, Republican Senator Alfonse D'Amato and Georgia Republican Congressman Charles Norwood, a dentist, introduced a similar bill. A year later, after neither bill had made it to the floor, Norwood joined forces with Dingell to forge a bipartisan bill. It put medical decisions in the hands of doctors, allowed patients to see outside specialists on the recommendation of their doctors, required that plans sanction emergency care at the nearest facility, prevented plans from rewarding doctors for limiting care, and gave patients the right to sue managed care plans for malpractice in state courts, where, in contrast to federal courts, punitive damages can be awarded.
To fight the bill, 31 companies and lobbying groups, including the Business Roundtable, the National Federation for Independent Businesses, the Chamber of Commerce, and the major health insurance companies established the Health Benefits Coalition in January 1998. They joined forces with the Senate Republican leaders who formed a Republican health care task force with Senate Majority Whip Don Nickles in charge. Nickles himself has been a prime beneficiary of health insurance largess. Brenda Becker, the vice president for congressional communications for the Blue Cross and Blue Shield Association, is one of his and the GOP's chief fundraisers.
The task force, with the coalition's help, introduced a bill of its own in July. Nickles's bill limited coverage to workers who were part of employers' self-insured plans--only a third of those covered by the Norwood-Dingell bill--and removed the right to sue in state courts. Clinton threatened to veto it, and it never came to a vote.
The next year--1999--Nickles brought up his bill, and it passed by 51 to 47, but the House, ignoring its Republican leadership's advice, passed the stronger Norwood-Dingell bill that October by a whopping 275 to 151. Senate Republican leaders refused to consider the two bills in conference, but then this June, the Senate Democrats outflanked them. With an election looming, and with the American Medical Association solidly behind a patients' bill of rights, Senate Democrats introduced a version of Norwood-Dingell as an amendment to the defense authorization bill, where it could not be filibustered. This time, four Republicans defected, and the bill as amendment was defeated by only one vote.
Since then Senate opposition to Norwood-Dingell has unraveled. In July, Georgia Senator Paul Coverdell, a foe of the bill, died and was replaced by Georgia Senator Zell Miller, a supporter. Then on October 6, Missouri Senator John Ashcroft, facing an extremely difficult election contest, broke ranks and vowed to back Norwood-Dingell. That meant the vote would be 51 to 49 in favor.
With a majority in favor of the patients' bill of rights, the leadership had only one recourse: Nickles threatened to filibuster. That means the bill would need 60 votes to pass. Fifty years ago, organizers of a filibuster were literally required to keep control of floor debate. Were those rules in effect today, the Norwood-Dingell bill would have come to the Senate floor, and Nickles and his allies would have read out of the dictionary and federal register for as long as they could stay awake. But in recent decades, supposedly to expedite other business, Senate leaders have allowed filibusters to become the equivalent of permanent holds. As a result, unless Nickles relents under pressure from his politically embattled colleagues, the Senate will not even consider, let alone vote on, the patients' bill of rights.
Defenders of this ignoble process might argue that both the auto safety bills and the patients' bill of rights were flawed legislation. The safety bills were hastily conceived and probably could have used further deliberation. Without comprehensive national health insurance, the patients' bill would probably raise costs and limit access. But most bills that Congress passes are flawed and need to be improved later by amendments. The point about these bills is that the public and a majority of Congress backed them, but one only made it through in a weaker version as a result of last-minute election panic, and the other looks like it will become another casualty of the Senate Republican leadership's tawdry alliance with K Street. ¤