The Last Great Senate

by Ira Shapiro

  ON JANUARY 31, 1978, Senator Joe Biden visited Jimmy Carter in the White House. One of Carter’s strongest supporters, Biden told Carter that Ted Kennedy was going to run for president and was already lining up support. Carter was surprised; he had seen no evidence of it. But Biden—young, handsome, brash, and ambitious—had keen enough political instincts to anticipate the decision long before Ted Kennedy had actually made it.

  A crucial year for the Senate and for Jimmy Carter, 1978 would also be a decisive year for the last of the Kennedy brothers. Through the first year of the Carter presidency, Edward M. Kennedy, having weathered some terrible personal storms, charted his distinctive course almost below the radar. He planned to be more visible in 1978, sometimes tacking left, sometimes right, racking up large legislative accomplishments, and leaving the ultimate question even more present in the minds of many Democrats: would he pick up the mantle left by his fallen brothers?

  Ted Kennedy had been elected to the Senate when he was barely thirty, arriving with the great class of 1962. He seemed to have minimal qualifications for the office. Reportedly, even John Kennedy expressed doubt that Teddy was ready for the Senate. But Joseph Kennedy, the family patriarch, wanted Teddy to take Jack’s seat in the Senate, and that ended all discussion. The family united in support of the race, and that was probably enough to ensure victory for Ted Kennedy in Massachusetts.

  However, even in that first race, after a hesitant start, he found his footing and proved himself to be an attractive candidate: handsome, energetic, the most outgoing and engaging member of the family, armed with a self-deprecating sense of humor to disarm those skeptics.

  He never tired of telling the story of his encounter with a Boston longshoreman. “Kennedy,” the man said, “is it true you’ve never worked a day in your life?”

  Ted sheepishly acknowledged there was some truth to the charge.

  “Kennedy,” the man responded, “you haven’t missed a thing.”

  He arrived in the Senate in January 1963, the brother of the president and the attorney general, movie star handsome with a beautiful wife. It was the peak of the New Frontier. Nuclear disarmament and civil rights were the leading issues. In such an environment, Ted Kennedy became instantly one of Washington’s most watched celebrities.

  From the beginning, Ted Kennedy found the Senate both challenging and collegial. Humbled by the opportunity that he had been given and fully aware of his limited experience, he gravitated to experienced senators who could teach him the ropes. Adam Clymer, the New York Times reporter and Kennedy biographer, would describe him as the “lion cub of the Senate” in his early years.

  Of course, his life would be touched repeatedly by tragedy. Less than a year after he came to the Senate, his brother was assassinated. The next year, after the Senate had passed the historic civil rights legislation, a small plane carrying Kennedy and his friend Birch Bayh crashed in Massachusetts. Bayh dragged Kennedy to safety, but Kennedy’s broken back condemned him to live with chronic pain. In November 1964, Robert Kennedy was elected to the Senate from New York, and Teddy had the joy of being “senior senator” to his older, hard-driving brother. But less than four years later, in 1968, the worst of years, Bobby, too, died at an assassin’s hand. Ted Kennedy, only thirty-six, was now the patriarch of the family. For many people who wanted a restoration of the Kennedys, he was the last hope of the Democratic Party and the country.

  There are those who believe that Kennedy could have been nominated in his brother’s place at the 1968 convention in Chicago if he had indicated any interest. But numb with grief over Bobby’s death, he held back. At the beginning of 1969, however, Kennedy channeled his energy and his growing comfort in the Senate to mount a challenge against Senate Democratic whip Russell Long. Long was a wily and gifted legislator, but his drinking problems were well known, sometimes causing embarrassing incidents in the Senate. Ted Kennedy was popular within the Senate, and revered by Democrats around the country as “the last Kennedy.” Richard Nixon had just become president, adding to the luster of a Senate leadership position. Kennedy defeated Long handily, and his increased visibility prompted the Washington press (and Richard Nixon) to see him as the Democratic front-runner for 1972.

  Six months later, the car accident on Chappaquiddick killed Mary Jo Kopechne, a former staffer of Robert Kennedy, and plunged Ted Kennedy back into personal crisis. Shaken to the core, Kennedy declined to take the leadership role in the Senate battles against Nixon’s Supreme Court nominees Clement Haynesworth and G. Harrold Carswell and generally withdrew from his responsibilities as Senate whip. In January 1971, Byrd ousted Kennedy from his leadership position, just as Kennedy had ousted Long two years earlier.

  Kennedy’s family and friends, personal resilience, and love of the Senate saved him. With the presidency out of the question in 1972, Kennedy threw himself back into his Senate work. He was already on the way to becoming a respected legislator, playing a leadership role on immigration and health-care issues, particularly the federal government’s newly launched War on Cancer. As evidence mounted of abuses of power in connection with Nixon’s reelection campaign, Kennedy’s Judiciary Subcommittee on Administrative Practice and Procedure (“Ad Prac”) plunged into investigating the Justice Department’s role, connecting the strands of fund-raising abuses and political dirty tricks. The subcommittee investigation developed significant evidence that it was able to turn over to the Watergate Committee, established in January 1973.

  In April 1973, Kennedy played a crucial role in conditioning Elliot Richardson’s nomination to be attorney general on his willingness to appoint Archibald Cox, Harvard Law professor and former solicitor general, to be the special prosecutor investigating Watergate, ensuring that Cox would have the necessary independence to do the job. Richardson agreed to Kennedy’s insistence that the special prosecutor could only be removed for “extraordinary improprieties.” When Nixon, feeling the heat from the special prosecutor’s investigation, fired Cox in what became known as the “Saturday Night Massacre,” it was a step that led inexorably to his resignation from the presidency ten months later.

  Richard Nixon’s crimes and abuse of power helped put Kennedy’s very personal failing at Chappaquiddick in perspective. By late 1974, public opinion showed Senator Kennedy running ahead of the new president, Gerald Ford, in a hypothetical matchup. But with his family responsibilities compounded by another tragedy, his son’s cancer, Kennedy made an unequivocal statement on September 23, 1974, that he would not seek the presidency in 1976, and focused intently on his work as an increasingly influential senator and creative policy entrepreneur.

  Kennedy had always benefited from an excellent and aggressive staff, anchored by Paul Kirk, his administrative assistant; Carey Parker, his legislative director; Tom Susman, his staff director on the Ad Prac Subcommittee; and Larry Horowitz, a physician who moved into the policy arena to lead Kennedy’s health-care efforts. All were attracted by the magnetic combination of working in the Great Senate, being part of the Democratic government in exile, fighting Richard Nixon, and working for the last Kennedy.

  In early 1974, Kennedy invited Stephen Breyer, a Harvard Law professor specializing in administrative law, to dinner at his home. During their dinner, Breyer cited the Civil Aeronautics Board as a clear example of a regulatory agency that had been captured by the industry it was supposed to regulate—airlines—stifling competition, subjecting consumers to higher fares, excluding new airlines from the industry, and limiting access to profitable routes. Kennedy, intrigued by the merits of the issue and its potential political appeal, asked Breyer to come to work for him.

  Breyer agreed, taking a sabbatical from Harvard Law School, shocking his faculty colleagues. It was a time-honored tradition for Harvard Law professors, going back to Felix Frankfurter, to spend time in Washington, but only in the solicitor general’s office or other high-level executive branch positions. The Harvard Law faculty regarded working in the Senate as a “political” job that marke
d a clear step down from Cambridge.

  The Harvard Law faculty was wrong. Breyer soon discovered that being staff director and chief counsel to a Senate subcommittee, particularly one chaired by Kennedy, provided an endlessly fascinating opportunity to shape public policy. Once he had the chairman’s trust, which happened almost immediately, Stephen Breyer had broad license to advance the issue of airline deregulation and get legislation enacted. He had the opportunity to solve the problem intellectually and present it in a way that was politically attractive. He crafted Kennedy’s statements. He scheduled the hearings and picked the witnesses so as to illuminate the issue: embarrassing the Civil Aeronautics Board, having the airlines lay out what deregulation could mean to consumers. He briefed the press so as to ensure their understanding of the issue and maximize the attention it got. He ran the process of committee consideration, educating and persuading the staff of other committee members, negotiating changes in the bill, where needed, to address problems or win additional support. Inevitably, in what Eric Redman called “the dance of legislation,” Breyer would confront challenge after challenge, and find ways to overcome them. Sometimes he would call on the chairman, but mostly, he and his staff would solve the problems and make sure the chairman was informed of what had been done in his name.

  Congress had long believed that it needed more resources to match up against the executive branch. In the foreign policy area, that was generally true (although the State Department often felt overmatched against Scoop Jackson). But on domestic issues, even one of far-reaching importance like airline deregulation, Senate committee staffers stood at the major intersection where the policy and the politics came together. Hundreds of executive branch officials might be involved in airline regulation and deregulation. But ultimately, it was Congress that funded their activities, and it was Congress that enacted, changed, or killed legislation. To get what they wanted, the executive branch officials had to convince the committee of jurisdiction, which meant convincing the chairman, which started with convincing his staff director.

  Like many committee staffers before him, Breyer would discover one of Washington’s realities: on the issues within his jurisdiction, nobody wielded more power. That made it crucial that he knew the chairman’s thinking, stay within his mandate, build trust, and deal with others in a way that reflected well on Kennedy. Breyer did it so well that he was able to overcome tensions arising from the fact that the Commerce Committee, not Judiciary, actually had primary jurisdiction over the issue. By the beginning of 1978, the airline deregulation bill was moving toward passage by the full Senate—a substantial legislative accomplishment. Breyer had returned to Harvard Law School after his leave, but would soon be drawn back to the excitement of the Senate.

  In 1975, Kennedy moved aggressively into the complex and politically charged issue of crime. A national commission had recommended that federal criminal law should be codified for the first time. Kennedy worried that the Senate consideration of a federal criminal code would be dominated by hard-liners John McClellan and Roman Hruska, the Nebraska Republican who was notoriously uninterested in civil liberties. But at the same time, liberal Democrats were being hammered as being “weak on crime.” Kennedy wanted to combine strong law enforcement with his unquestioned commitment to civil liberties. The Kennedy network recommended that he interview Kenneth Feinberg, an assistant U.S. attorney from New York, who had successfully prosecuted John Mitchell and Maurice Stans, Nixon’s attorney general and chief fund-raiser. At the end of their meeting, Feinberg thanked Kennedy for his time, but expressed doubt that their views were compatible. “Don’t be too sure,” Kennedy responded to the prosecutor, who had greatly impressed him. “I’m not sure what my views are on criminal justice.”

  Feinberg joined Kennedy’s staff in October 1975. Shortly thereafter, Kennedy made a far-ranging speech on crime in which he called for gun control, efforts to relieve the burdened federal courts, and minimum two-year imprisonment for violent crimes. Kennedy plainly sought to bridge the chasm between liberals and conservatives on the volatile crime issue. He criticized “eight years of federal efforts to reduce crime by talking tough.” But he also talked straight to liberals by saying, “Nor can we counter law and order slogans with arguments that crime can only be controlled by demolishing city slums, ending poverty and discrimination and providing decent health and education to all of our citizens.” Kennedy said, “let us not confuse social progress with progress in the war on crime. . . . We fool ourselves if we say ‘no crime reform until society is reformed.’”

  Such a speech may sound like common sense to contemporary readers. But in 1975, where the debate over crime was poisonous, for a liberal like Kennedy to sound tough on crime was a dramatic departure. Feinberg went to work on the herculean task of trying to write legislation to codify the federal criminal laws, reaching so many agreements with the staffers of McClellan and Hruska that the Washington director of the American Civil Liberties Union wrote to Kennedy that “Feinberg was out of control.” In response, Kennedy called Feinberg into his office, and said “good job.”

  Ultimately, the task of writing a new federal criminal code proved too ambitious and was never completed. But the work done by Kennedy and Feinberg provided the basis for a new set of sentencing guidelines adopted by the federal judiciary, reducing the range of judicial discretion. Kennedy and Feinberg also began working with the Carter administration to spell out the circumstances in which wiretapping to gather foreign intelligence could occur. This effort, which Kennedy had begun during the Ford administration, required a delicate balancing between national security needs and civil liberties concerns. Like airline deregulation, this initiative broke new ground for Democrats, moving a considerable distance from traditional liberal concerns. Both the senator and the White House saw 1978 as the year that these initiatives would become law.

  At the same time, Kennedy maintained a laser-like focus on his highest priority—health care for all Americans. He had become chairman of the Health Subcommittee in 1971. He had begun his subcommittee chairmanship by fighting to increase funding for cancer research but had gone on to broaden his concern to providing national health insurance, which he would call “the great unfinished business on the agenda of the Democratic Party.” In May 1977, when Carter had been in office just four months, Kennedy had sharply criticized him at the United Auto Workers convention, saying that “health reform is in danger of becoming the missing promise in the Administration’s plans.” Kennedy regarded the issue as his life’s work and the true litmus test of what the Democratic Party stood for. His critique of Carter was far more focused than McGovern’s blasts had been. He would keep up the drumbeat, despite Carter’s determination to proceed piece by piece, in an effort to keep health care costs down.

  Seeking new ways forward for the Democrats and the country, Kennedy had found important issues on which he could work comfortably with the Carter administration. But it was his move to the left—insisting that the moment to realize the dream of national health insurance had come—that fueled excitement among liberal Democrats and fed their growing dissatisfaction with Carter.

  FOR THE SENATE, A year of living dangerously was about to begin. Robert Byrd wanted to prove himself a great majority leader and statesman, rather than a mechanic who made the Senate trains run. Howard Baker wanted to be a minority leader like his father-in law, Everett Dirksen, who put the national interest first and worked with presidents to accomplish great things. Frank Church wanted to transform the relationship of the United States to the developing world, particularly Latin America.

  Jimmy Carter would give all of them the opportunity they sought, when he committed his presidency to addressing the festering sore between the United States and Panama: control over the Panama Canal. Baker and Church would soon ruefully recall the admonition “Be careful what you wish for.”

  chapter 8

  THE PANAMA CANAL FIGHT

  THE PANAMA CANAL HOLDS A SPECIAL PLACE IN AMERICAN H
ISTORY. President Theodore Roosevelt ordered the gunboat Nashville to help secure Panamanian independence from Colombia in 1903. Within days he secured a treaty giving the United States full rights over the land to build the canal and to control it “in perpetuity.” Cutting through one of the narrowest points of Central America, it offers ships passage from the Atlantic to the Pacific Ocean.

  Over time, though, the ten-mile-wide, American-controlled Canal Zone became a bitter source of frustration to the Panamanian people. This frustration escalated in the wake of World War II, when a wave of African and Asian nations won independence from the war-scarred and bankrupt old powers. The Canal Zone began to look more and more like a relic of an old imperial era. Successive Panamanian presidents won office with stridently anti-American rhetoric and the canal’s future became a contentious issue between American presidents and Congress.

  On Panamanian Independence Day, November 3, 1959, Panamanian students tried to force their way into the Canal Zone to tear down the American flag at the U.S. embassy and replace it with the flag of Panama. Thirty people were injured in the riots that followed. President Eisenhower, who had served in the Canal Zone in the 1920’s, sympathized with the Panamanian position. Attempting to cool tempers, he ordered the Panamanian flag flown along with the U.S. flag in a prominent corner of the Canal Zone despite a House resolution that attempted to stop him.

  Anti-U.S. rioting broke out again in 1964 after another flag-raising incident. This time, thousands of Panamanian students poured onto the streets. Four Americans were killed and twenty-four injured in the ensuing chaos. Panamanian President Roberto Chiari suspended diplomatic relations with the United States in retaliation.

  Lyndon Johnson, just six weeks into his unexpected presidency, had insisted that President Chiari restore calm before he would discuss any other issues. At the same time, he began informally polling the Senate about the possibility of a new treaty. There was certainly a base of potential support: Mansfield spoke for many when he observed that “our national interest is in a trouble-free water passage, not the safeguarding of an outdated position of privilege.” Hawks like Richard Russell and Everett Dirksen took the opposite position. Russell opposed voluntarily giving up U.S. power under any circumstances, while Dirksen believed rewarding the protesters’violence would set a bad precedent for U.S. relations with other small nations. It was far too early to assess how the full Senate might respond to a treaty, though it was certainly not too early to sense that it would be controversial.