The Waxman Report

by Henry Waxman; Joshua Green

  It wasn’t until November, when it became clear that the House and Senate were going to move forward on the Clean Sports Act, that the league finally ceased its brinkmanship and committed to the kind of meaningful reforms that were needed, announcing several months later that former Senate Majority Leader George Mitchell would conduct an independent investigation into the use of performance-enhancing drugs in the major leagues.

  Over the next two years, while Mitchell’s investigators were at work, steroids never faded from the public spotlight. The ongoing saga of the Bay Area Laboratory Co-Operative (BALCO), the company at the heart of the Justice Department’s investigation of illegal performance-enhancing drugs in professional sports, produced a steady stream of headlines, as the names of star athletes alleged to have used its products leaked out. These included such high-profile ballplayers as Gary Sheffield, Jason Giambi, and, most infamously, Barry Bonds. Then, on November 15, 2007, Bonds was indicted for perjury and obstruction of justice in his grand jury testimony about BALCO. For a moment, it seemed the clamor could get no louder—until, on December 13, George Mitchell submitted his report, and the controversy exploded anew.

  Officially the Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball, the Mitchell Report, as it pretty much had to be called, was highly critical of both the league and the players union for having tolerated a culture of drug abuse. The report identified eighty-nine players alleged to have used steroids, among them some of the biggest stars in the game. None was bigger than Roger Clemens, the seven-time Cy Young Award winner. After several days of awkward silence, Clemens issued an emphatic denial through his attorneys that he had ever used drugs.

  The Government Reform Committee had scheduled a hearing on January 15, 2008, for Senator Mitchell to present his findings and offer testimony. In the weeks leading up to the hearing, Clemens and his attorneys repeatedly attacked and sought to undermine the Mitchell Report. Here we had such starkly contrasting statements—Mitchell’s conclusion that Clemens had used steroids, based on interviews with Clemens’s own trainer, Brian McNamee, who admitted having obtained them and specifically to having injected Clemens with them, and Clemens’s fervent denial of the charge—that only a hearing in which all parties testified under oath seemed likely to resolve the standoff. Having pushed so hard for an independent report, I thought it was important to find out if the most publicized charge could possibly be inaccurate.

  As the committee’s investigators obtained depositions in advance of the hearing, a fuller picture began to emerge of just what steroids had been doing to professional baseball. Some players, like Clemens, flat-out denied the allegations and cast aspersions on the report. But many others provided admirable and even moving examples of how to acknowledge and atone for a mistake. Chuck Knoblauch brought his three-year-old son to his deposition, where he corroborated McNamee’s charge and admitted to having used human growth hormone (HGH). Knoblauch explained that he wanted to teach his son that when you do something wrong you have to admit to it and face the consequences.

  Andy Pettitte, a close friend of Clemens’s, who, like Knoblauch, stood accused by McNamee of having used HGH, also confessed to the charge. Pettitte viewed his dereliction in religious terms and expressed the wish to give a full accounting of what he had done. He offered what was clearly a genuine and heartfelt deposition, confessing to several things that our investigators would have had no way of discovering, including the fact that his father had supplied him with HGH. He also told us of a conversation he’d had with Clemens in which Clemens admitted to using HGH. After the deposition, we told Pettitte that we were prepared to redact certain portions of his testimony, so that he could keep his father’s role private. But both father and son insisted that the committee release the entire unredacted testimony and lay out the full scope of their actions.

  As our investigation proceeded, a seemingly obscure issue gained importance. Clemens told us that he had evidence disproving the Mitchell Report’s assertion that he had visited Jose Canseco’s Florida home in June 1998, when his team, the Toronto Blue Jays, was in town to play the Florida Marlins. McNamee insisted that Clemens had indeed been there—and that he vividly recalled Canseco’s wife comparing breast augmentations with Clemens’s wife. If Clemens was right, it would cast serious doubt on McNamee’s veracity. So began one of the more unusual inquiries in my career. Committee investigators tracked down the now former Mrs. Canseco, a model and minor celebrity, and Clemens’s former nanny, whom McNamee recalled seeing at the party. Both confirmed key elements of McNamee’s account.

  As the hearing approached, and the hysteria surrounding Clemens reached fever pitch, Tom Davis and I had second thoughts about having Clemens and McNamee testify, sensing that a public appearance might go badly for Clemens and believing that the depositions we had collected—including a four-hour interview with Clemens—provided more than enough material to produce a compelling committee report that supported Mitchell’s conclusion. But when we informed Clemens’s legal team that we were willing to consider issuing a report in lieu of a hearing, they nevertheless insisted on going forward, emphasizing that Clemens himself felt strongly about having an opportunity to convince the world of his innocence.

  In the days leading up to the hearing, Clemens’s lawyers pursued the rather unorthodox strategy of attacking me personally and making several provocative comments about the government investigators assigned to the case. Clemens himself embarked on a goodwill tour of Capitol Hill, going office to office shaking members’ hands and signing autographs for many of the same lawmakers who would soon be questioning him. The next day’s testimony was carried live on practically every cable network, ESPN reprising its wall-to-wall television and radio coverage. For several hours, Clemens and his lawyers lobbed charges at McNamee and sparred with members of the committee. It was never clear to me, then or now, what Clemens imagined he was going to get out of this. But the new evidence presented against him only strengthened the impression that he was obfuscating. In the end, his testimony was widely judged a disastrous self-inflicted wound, and his reputation seems forever marred.

  SHORTLY AFTER THE GOVERNMENT REFORM COMMITTEE FIRST ANnounced plans to investigate steroid use in the big leagues, Tom Davis and I responded to the umbrage of the league’s attorney in a letter on behalf of the committee explaining our intentions and the reasons for our actions. “We are fans of baseball and admirers of professional baseball players,” we wrote. “But Major League Baseball and professional baseball players should not be above responsible scrutiny. We believe that Major League Baseball and baseball players should not be singled out for unfair or punitive treatment. But at the same time, baseball and ballplayers do not, by virtue of their celebrity, deserve special treatment or to be placed above the law.”

  Baseball is an American institution. But by the time Jose Canseco’s book came out it had become clear that the institution’s tradition of self-regulation had faltered. This lack of oversight, and the tacit complicity of owners, players, and management, had consequences that reached far beyond the professional sphere. Steroids had become a drug problem that affected not only elite athletes, but also the neighborhood kids who idolize them. In 2004, the Centers for Disease Control and Prevention reported that one out of every sixteen teenagers had used illegal steroids, some of them when they were only in the eighth grade. The willful blindness of Major League Baseball was not the only reason for this. But it was a big part of the reason. The league had a responsibility to do the right thing, a responsibility that it had flagrantly neglected.

  Issues like this make it clear why it is important that Congress’s powers of oversight extend beyond the government. They also show why Congress does not always need to pass legislation in order to bring about dramatic change. In the wake of the hearings and the Mitchell Report, Major League Baseball and the players union agreed on a mu
ch tougher drug policy, adopting many of the recommendations that Mitchell had laid out.

  Baseball has by no means eradicated performance-enhancing drugs. Many people suspect that HGH, for example, which does not lend itself to easy testing, continues to pose a problem. But the league seems at last to have moved beyond the Steroid Era. While no one can precisely measure the prevalence of steroid use in baseball, a clear pattern of decline seems evident from recent data. As Peter Gammons of ESPN has noted, the Elias Sports Bureau, which tracks baseball statistics, reported that 2.01 home runs were hit per game in 2008, down almost 10 percent from 2006, and the lowest ratio since 1993. The days when muscle-bound players like Mark McGwire and Barry Bonds would club seventy or more home runs in a season seem to have receded into the past. In 2008, Miguel Cabrera led the American League in home runs by hitting thirty-seven; Ryan Howard led the National League with forty-eight. Overall, professional baseball has gotten younger, smaller, and faster. And as several commentators have noted, baseball players have started looking like baseball players again.

  But the most important changes have come in college and high school locker rooms. While we are only beginning to see the studies and statistics, the early evidence is encouraging.

  In December 2008, the University of Michigan’s Institute for Social Research released its highly regarded annual national survey on teenage drug use. The study, which had tracked a “sharp increase” in male teen steroid use in the late 1990s, now showed the reverse. In 2008, steroid use among twelfth-graders had declined by more than a third over a five-year period; among tenth-graders by more than 40 percent; and among eighth-graders by almost 25 percent. The same study reported that “there has been an increase in the proportion of 12th-grade males…who see great risk in trying anabolic steroids” (italics in original) and an increase in those who disapprove of peers who do try them.

  More so than with almost any other issues in my career—such as tobacco, clean air, or pesticides—I’ve found that my reasons for looking into steroid use in Major League Baseball have not always been fully understood. While the Government Reform Committee’s decision to investigate professional baseball was, and continues to be, primarily looked at as an attempt to clean up professional sports, the broader motivation of protecting kids has gone virtually unnoticed. Thankfully, the effort seems to be succeeding on both fronts. There is much greater awareness today of the dangers steroids pose to teenagers, and education and testing programs instituted by high schools and colleges across the country give me hope that this recent pattern of success will continue.

  CONCLUSION

  Politics has a strange way of going in cycles. I arrived in Congress a member of the historic “Class of 1974,” the first elected after Watergate, and as one of ninety-two mostly Democratic representatives who were swept into office on a message of reform. Americans decided that government under Richard Nixon wasn’t working as it should, and they wanted something different.

  In 2008, we experienced a similar upheaval, as millions of voters sent Barack Obama to Washington and expanded the Democratic majorities in Congress. The prevailing mood today, as in 1974, is one of great hope for change and reform. The eight years under George W. Bush were an object lesson in why an effective, functional government is necessary. Mired in the worst recession since the 1930s, we now see the cost of systematically dismantling regulation and allowing our government to become the private concern of the well-connected and powerful. Having largely organized our economy around the principle that markets can regulate themselves and still protect the public interest, we have learned again that government must play an active role to ensure that markets work for everyone.

  We’ve arrived at a grim moment, but not one without hope. Throughout my career I have found myself fighting those determined to weaken and undermine government. At times, such as in the early days of the Reagan Revolution, public sentiment leaned very much against me. But we have now come full circle. Americans see plainly that strong government initiative, just as in the past, is vital to solving the huge problems now weighing on the country and the world.

  Growing up in California after the New Deal had changed America so much for the better, my parents instilled in me a sense of how much government can be a force for good. My father liked to remind me that when financial excesses brought on the Great Depression, the federal government stepped in to protect ordinary Americans by regulating Wall Street and imposing a measure of accountability where none had been before, while providing families like ours a path to the middle class by guaranteeing a good education, a secure retirement, and, later on, health care for the poor and elderly. This is a major part of what makes our country great. During my forty years in the California State Assembly and the United States Congress, I have worked to carry on this legacy. Despite its imperfections, our government continues to accomplish great things. I wrote this book to explain how they come about, to share what I’ve learned, and to illuminate how we made some of the greatest achievements happen.

  THE NEW GENERATION OF LEGISLATORS THAT HAS ARRIVED WITH President Obama will learn, as I have, that government is a fine and noble calling, but one that presents constant obstacles and challenges. It is always hard and often thankless to be effective, and it is the nature of our occupation that our successes draw less attention than our failures and the problems we have yet to confront. But good works are always possible.

  The struggle for effectiveness is a constant battle. A congressman’s typical day often seems designed to prevent rather than encourage the processes of making laws and exercising oversight: Major hearings are frequently interrupted by floor votes; different committees on which you sit will hold votes and markups simultaneously; caucus meetings, regional meetings, and constituent demands all vie for your limited time; and many members are pressed by the endless imperative to raise money. It is possible to remain frantically busy from sunrise to sunset without accomplishing anything of significance.

  One of the worst pieces of advice routinely given new members of Congress is to “be seen, not heard” and defer to their senior colleagues. Doing precisely the opposite is the surest path to success. Anyone can make a difference right away by finding opportunities to speak out and get involved. Patiently submitting to hierarchy only reinforces the regrettable delusion that nothing of any value can be accomplished by anyone less than a chairman, who can draw on a large staff, the advantage of seniority, and other perquisites of power. I have always admired Al Gore for inviting, while still a junior congressman, a steady stream of experts to his office to talk through the pressing issues of the day. Experts around the world in every field would jump at the chance to brief any member of Congress curious to hear their point of view. Anyone who follows Gore’s example can become a respected leader on a given issue long before he picks up a chairman’s gavel.

  The art of legislating is essentially a process of learning. The key to mastering policy is to first master the facts of an issue, since the best policy always derives from them (and never the other way around). When, for example, the AIDS crisis confronted us in the early 1980s, understanding the basics about the disease was the crucial first step toward a proper legislative response. Only once we understood the scope of the problem could we turn to political considerations and begin looking for opportunities to move a bill. Congress is an imperfect institution, and among its 535 members will always be those who abuse their authority and thwart even the most desperately needed programs. Facts are what ultimately overwhelm them and allow good laws to prevail. The Ryan White CARE Act, though it took nine years to become law, is still doing its quiet good two decades later.

  Congress is designed to stop things, not build them. So to block a law is much easier than to pass one. Moving something forward often requires having the subcommittee chairman, committee chairman, and the Democratic and Republican leadership all be in favor of it, which is rarely the case. On almost every issue in Washington there will arise an economic interest set
on actively resisting a proposed reform, and this opposition—very likely well funded—will muster lobbyists, public relations firms, and advertising talent to try to stop Congress from acting. The odds are usually stacked against you.

  That’s one reason why bipartisanship is so important. If the committee process is permitted to work as intended—as it did under chairmen like my early mentor, Paul Rogers—then all points of view will come under consideration as a bill is drafted, which only enhances its prospects. Those who can manage to navigate the arduous legislative process while still preserving the key elements of policy will probably have forged a consensus strong enough to survive the House and Senate, and wise enough to produce a law that will work as intended. I’ve made a habit of seeking out members of good will with whose views I disagree for exactly this reason: Henry Hyde on abortion, Orrin Hatch on pharmaceuticals, Tom Bliley on pesticides, safe drinking water, and tobacco, and Tom Davis on government procurement. If you can find areas of common interest and figure out how to bridge your differences, the result is usually legislation that truly works. In fact, I can think of no major law that I’ve had a hand in crafting that hasn’t depended upon bipartisan support.

  Always look for opportunities. The greatest setback in my career was the Republican takeover of the House after the 1994 election. But losing the majority advantage need not render one useless. Another reason bipartisanship is so useful is that it presents opportunities to accomplish things from the minority. Teaming up with Tom Bliley to persuade Congress to pass the Safe Drinking Water Act in 1995 and pesticide legislation in 1996 created valuable laws. Had the Republican leadership been a little less obstinate, those accomplishments would also include historic tobacco legislation.

  Even absent a partner in the majority, simply being in Congress affords one enough power to make an immediate difference. As a minority member of the Government Reform Committee, reading about problems in the newspaper, writing letters to federal agencies asking questions and demanding information, and then releasing the resulting reports to colleagues, constituents, and the media helped move the public debate on issues ranging from drug prices to teacher-student ratios. Any member of Congress can do the same thing.