The Waxman Report

by Henry Waxman; Joshua Green

  Cigarette smoking remains the leading preventable cause of death in the United States; worldwide it kills more than five million people each year. But the percentage of the U.S. population that smokes has fallen steadily, from 37 percent of all adults in 1974 to fewer than 20 percent in 2007. Even more important is the trend among kids. Since the late 1970s, the percentage of high school seniors who smoke daily has fallen by nearly two-thirds. And since 1991, when researchers first started keeping track, the percentage of eighth-graders who smoke has dropped by more than half.

  Tobacco continues to kill at an alarming rate. But the prospects for change are brighter than at any time since I’ve been in Congress. On January 21, 2009, a fellow struggling ex-smoker took the oath of office, shifting the dynamics of the tobacco fight once again, this time likely with historic repercussions. Soon after Barack Obama became our forty-fourth president, and thirty years after I began my push for tougher legislation, the House and Senate began work on a comprehensive bill authorizing the FDA to at last regulate nicotine in cigarettes—a bill that President Obama has promised to sign.

  CHAPTER 10

  Steroids andMajor League Baseball

  DURING THE 1990S, MAJOR LEAGUE BASEBALL EXPERIenced a sharp and unexplained increase in home runs. Long-standing records seemed to fall every week, and a nation of baseball fans watched captivated as stars like Sammy Sosa and Mark McGwire blasted monster shots of a type never seen before. And it wasn’t just the cleanup hitters—all of a sudden, every light-hitting infielder seemed to have discovered a home run stroke and previously untapped power. The change was evident beyond the statistics. Players seemed hulkingly bigger. Something was going on.

  Baseball fans all over could see what was happening, and many suspected the culprit. Rumors of steroid use had hung over the game for some time. Debates about who was clean and who wasn’t became common talk in baseball circles. I was never a part of them—I’m not much of a sports fan. But as the ranking member of the House Government Reform Committee, the evidence of baseball’s steroid outbreak appeared to me in a different format. The public health reports that crossed my desk showed an alarming rise in teenage steroid abuse. According to a 2004 study by the Centers for Disease Control and Prevention, more than 500,000 teenagers had used steroids, nearly triple the number just ten years earlier.

  In February 2005, former Major League Baseball player Jose Canseco published a memoir, Juiced: Wild Times, Rampant ’Roids, Smash Hits, and How Baseball Got Big, describing widespread abuse of performance-enhancing drugs in major league clubhouses that he claimed to have witnessed, and participated in, during his seventeen-year career. The book caused an immediate uproar because he accused many of the game’s biggest stars of having taken steroids.

  Canseco’s charge alarmed me, because the culture of the professional clubhouse invariably becomes the culture of the high school gym. If professional players are using steroids, then college players feel pressure to use them to get to the big leagues, and high school players feel compelled to follow suit to land a scholarship and make the jump to college ball. And indeed, public health reports showed precisely this happening.

  But what troubled me most was Major League Baseball’s reaction to the allegations. Commissioner Bud Selig dismissed Canseco’s charges as “sheer nonsense,” and made clear that baseball would not be investigating them. “The commissioner isn’t looking backward; he’s looking forward,” Selig’s chief assistant, Sandy Alderson, said shortly after the news broke. “I’d be surprised if there’s any significant follow-up.”

  Accountability is important. And Major League Baseball, a multibillion-dollar, largely self-regulating industry, did not seem to be taking seriously what appeared to be a scandal of epic proportions. There were reasons beyond Canseco’s book to suspect that steroid use in professional baseball was a serious problem. The Justice Department had recently handed down indictments in its own investigation of steroid use in professional sports. President Bush, who co-owned a major league team before he became president, thought the issue important enough to have included it in his 2004 State of the Union address. And as every fan knew, the sudden explosion of home runs suggested that something was amiss with the national pastime.

  Though it is not well known, Congress had examined this issue once before. In 1973, the House Committee on Interstate and Foreign Commerce conducted a year-long investigation of drugs in professional sports that discovered that they were being used “in all sports and levels of competition. In some instances, the degree of improper drug use—primarily amphetamines and anabolic steroids—can only be described as alarming.” The committee’s chairman, Harley Staggers of West Virginia, was so concerned that a public hearing on those findings would encourage teenagers to experiment with steroids that instead he met privately with the commissioners of all the major sports, urging Baseball commissioner Bowie Kuhn to institute tough penalties and testing. Afterward, satisfied that Kuhn would do so, Staggers issued a press release in which he stated, “Based on the constructive responses and assurances I have received from these gentlemen, I think self-regulation will be intensified, and will be effective.” But thirty years later, self-regulation had plainly failed to stop drug abuse.

  I suggested to Tom Davis, the Virginia Republican who chaired the Oversight and Government Reform Committee, that we hold a hearing to find out why Major League Baseball wasn’t taking a stronger stand. At the same time, we could use the occasion to examine the public health consequences of growing steroid abuse among teenagers. A serious baseball fan, Davis agreed that we should look into Canseco’s claims. Since Major League Baseball was disinclined to act, we decided that the committee would take up the task ourselves.

  We also agreed that major league players should be among the witnesses called to testify at any hearing. Rumors of heavy steroid use had been swirling for years, and several players had testified to the grand jury in the Justice Department’s investigation of a Bay Area laboratory that had supplied many professional athletes. But no player before Canseco had ever given a public account of what everybody seemed to agree was the league’s dirty secret. Canseco was therefore an obvious choice to testify, as was his former teammate, Mark McGwire, who was among the players Canseco accused of taking steroids in Juiced, and whom we assumed would be eager to rebut the charge under oath. Another, Rafael Palmeiro, had publicly volunteered to testify, so we issued him an invitation. Sammy Sosa, Curt Schilling, and Frank Thomas rounded out the list of star players. Bud Selig and Donald Fehr, the head of the players union, were invited to appear on a separate panel to provide their perspectives.

  Major League Baseball greeted the news of our hearing with shock and outrage: How dare we presume to meddle in its affairs! So virulent was the league’s opposition to the mere idea of cooperating with us that it hired a former House general counsel to argue that the committee lacked jurisdiction. We reminded him that the House rules state, “the Committee on Government Reform may at any time conduct investigations of any matter,” and that the use of performance-enhancing drugs, illegal under the federal Controlled Substances Act, was plainly a matter that fell under our purview. Even so, the league refused to provide a copy of its steroids policy, forcing us to take extraordinary measures. In all the years I spent investigating the tobacco industry—masters of obstruction and refusal to cooperate—never once did I have to issue a subpoena to obtain information. If the industry sensed it was going to lose a fight, it handed over whatever we were after rather than suffer the ignominy of being slapped with a subpoena. But not baseball. On the issue of steroids, the league proved more recalcitrant than Big Tobacco, and compelled us to subpoena documents and testimony.

  The clamor was not confined to the league’s front office. Given the nature of the scandal and who it involved, the national media—and particularly the sports media—quickly became consumed with it. And at the outset, most people seemed to agree that we were the bad guys. Even Senator John McCain of Arizona, whose Co
mmerce Committee hearing on steroids in 2004 had been the catalyst for baseball’s new drug policy, questioned the need for further investigation. The attacks came from every direction: What business did Congress have looking into baseball? Why would we give credence to the claims of Jose Canseco, an admitted cheat and drug user? What did we think we were going to accomplish? Who did we think we were? The hearing was widely assumed to have no higher motive than the lofty institutional arrogance of media-hungry lawmakers, a notion the league and its lawyers were all too happy to encourage. Many commentators criticized us, even while agreeing that steroids were “a black eye for baseball” that was “ruining the game.” Almost no one thought to look at steroids from the perspective of public health.

  In February of 2005, the league’s stance on performance-enhancing drugs was that, while it might have been a bit slow in recognizing the problem, it had implemented, just weeks before, a tough new policy that it claimed would catch, and severely punish, any offenders. Bud Selig declared, “My job is to protect the integrity of the sport and solve a problem. And I think we’ve done that.” The league emphasized that under the new policy first-time violators would be publicly identified and suspended without pay for ten days. “The fact is,” Selig said, “that it is announced and everybody in America will know who it is. That’s a huge deterrent.” In meetings with us, senior baseball officials described the policy as the “gold standard” and contended, publicly and privately, that given this tough new approach, there was no need for Congress or anyone else to look into the past.

  But even before the hearing, it became clear that many of the claims Major League Baseball was making about the strength of its new steroids policy simply weren’t true. When the league finally produced the subpoenaed copy of the policy, just three days before we convened on March 17, the language differed markedly from what had been described. Rather than mandating an immediate fine, suspension, and public disclosure, the rules decreed that a positive test for steroids would draw either “a 10-day suspension or up to a $10,000 fine,” a second violation “a 30-day suspension or up to a $25,000 fine,” a third “a 60-day suspension or up to a $50,000 fine,” a fourth “a one-year suspension or up to a $100,000 fine,” and, if a player persisted to a fifth, it would be left entirely to the commissioner’s discretion how to deal with him. Given that a number of major league players earn more than $100,000 per game, that hardly seemed a daunting penalty.

  The list of banned substances did not include many of the steroids prohibited by the International Olympic Committee. Implementation, as well as any decision to ban more drugs, was to be overseen not by independent experts (as with the Olympics) but by a four-member committee of management and labor officials. The policy allowed players an unsupervised hour of grace between their being notified of a test and having to provide a urine sample, which would give violators ample time to take masking agents or other measures to avoid testing positive. Strangest of all, one clause of the policy stated that “all testing… shall be suspended immediately” should the government launch an independent investigation. Rather than the strict “one strike and you’re out” standard portrayed to the media by baseball officials, the actual policy seemed designed to allow the league to continue covering up or at least minimizing the problem of steroids, while talking tough about its principles. The potential for abuse was obvious.

  A truism about lawmaking and oversight is that high-profile issues tend to be much harder to manage than those that don’t attract a lot of attention. This can be a significant obstacle. In high-visibility hearings (as the steroid inquiry was sure to be), you can never be entirely certain of what will occur and what the media will take away from the event. One way to mitigate this problem, and ensure that at least some media coverage is appropriately directed, is to release a letter in advance of the hearing framing the relevant facts as you’d like them to be considered. On March 16, the day before the big event, the committee issued a public letter to Selig and Fehr laying out the many discrepancies between the policy they had described and the thing itself.

  Rarely is the precise moment at which public opinion shifts so pinpoint-clear as it was in the case of baseball’s steroids policy. As soon as the letter went out, members of the media and Congress alike realized they had been misled. They could see for themselves the significant disparity, and many felt personally affronted. No one likes to be duped.

  The letter had the intended effect, which was fortunate—because while the next day’s hearing seized national attention and forever changed the way the public thinks about steroids and baseball, the focus quickly became the players rather than the policy. While Canseco repeated his claims, and Palmeiro, Sosa, and Schilling denied using steroids, Mark McGwire refused to say whether he had used them or not, repeatedly insisting, “I’m not here to talk about the past.” To the national media, and to millions of Americans who watched the hearings on television or listened on the radio, McGwire’s equivocation was treated as a clear—and astonishing—admission that he had indeed abused steroids, and opened up the possibility that many other of the game’s heroes might have, too. This impression was heightened a few months later when it was revealed that Palmeiro had tested positive for anabolic steroids just weeks after the hearing, slamming the brakes on what had seemed till then a Hall of Fame career.

  While the frenzy resulting from the players’ testimony was unavoidable, my one regret is that more attention wasn’t given to the day’s first panel, which examined the devastating effects of teenage steroid use. Among the witnesses were the parents of Taylor Hooten and Rob Garibaldi, aspiring young baseball players who had killed themselves after abusing steroids. Donald Hooten searingly described how his seventeen-year-old son, a star pitcher, turned into another person after his junior varsity coach told him that he needed to “get bigger.” Taylor Hooten got bigger all right, gaining thirty pounds of muscle. But he also became angry and depressed, and ultimately hanged himself in 2003. Addressing the major-leaguers seated in the gallery behind him, Donald Hooten said, “Players that are guilty of taking steroids are not only cheaters—you are cowards.”

  Denise Garibaldi told us how her son had begun using steroids as an eighteen-year-old high school player, won a baseball scholarship to the University of Southern California, and competed in the College World Series. Rob Garibaldi had worshipped Mark McGwire, videotaping the slugger’s games on television and breaking down his swing “frame by frame” to emulate it. Steroid use brought him severe psychiatric problems that his father, Raymond, described as “mania, depression, short-term memory loss, uncontrollable rage, delusional and suicidal thinking, and paranoid psychosis.” Eventually Rob was kicked off the USC team and lost his scholarship. When confronted, said his father, he responded, “I’m on steroids, what do you think? Who do you think I am? I’m a baseball player, baseball players take steroids. How do you think [Barry] Bonds hits all his home runs? How do you think all these guys do all this stuff? You think they do it from just working out normal?” Rob shot himself in the head in 2002 at the age of twenty-four. “There is no doubt in our mind that steroids killed our son,” Denise Garibaldi told the committee.

  SOME HEARINGS HAVE A DISPROPORTIONATE IMPACT ON THE NAtional culture, and this was one of them. The reaction was visceral. Suddenly, just about everyone agreed that this was a problem that had to be addressed. Major League Baseball had been given an opportunity to present and defend its steroids policy—Selig, Fehr, and the league’s medical adviser, Dr. Elliot J. Pellman, all testified—and the overwhelming conclusion was that the league had failed miserably. To his credit, John McCain revised his earlier position and concluded that Congress might indeed need to intervene in professional baseball. “It just seems to me they can’t be trusted,” he said after the hearing. “We ought to seriously consider… a law that says all professional sports have a minimum level of performance-enhancing drug testing.”

  Ordinarily, a committee is fortunate to get any live feed of a he
aring on C-SPAN. CNN might give parts of a really big one, such as that featuring the tobacco CEOs, live coverage. But the steroid hearing ran gavel-to-gavel not just on cable news stations but on ESPN television and radio. And the unexpected twist of McGwire’s testimony ensured that the subject was a mainstay of sports talk radio shows for weeks.

  This was significant because the discussion reached an entirely different audience than the one that usually pays attention to congressional hearings. Though it did not generate nearly the number of headlines as the players’ testimony, the panel with the Hootens and the Garibaldis registered with millions of parents, many of them undoubtedly unaware, as those two stricken families had been, that steroids were a rampant and growing danger to their kids that might warrant a much closer and more thoughtful look. Framing the issue in this way went to the heart of its public health aspect and got people to think about steroids in a different way than they were accustomed to. The problem was not merely “the integrity of the game,” but also the health and well-being of American kids.

  AFTER THE HEARING, TOM DAVIS AND I DECIDED TO INTRODUCE legislation exactly along the lines that McCain had suggested, while McCain introduced an identical bill in the Senate. The Clean Sports Act of 2005 would authorize the Office of National Drug Control Policy to enact a tough, uniform standard for all professional sports and require commissioners to institute stringent testing policies and penalties for players who test positive. We continued to meet periodically with league representatives to do the two vital things we had been asking them to do all along: to compile a report that took full account of the unwholesome years that were already becoming known as baseball’s Steroid Era, and to institute a drug policy with real teeth. But baseball officials still seemed to think that they could tough it out and stave off any serious changes.