The Waxman Report Read online

  COPYRIGHT

  Copyright © 2009 by Henry Waxman

  All rights reserved. Except as permitted under the U.S. Copyright Act of 1976, no part of this publication may be reproduced, distributed, or transmitted in any form or by any means, or stored in a database or retrieval system, without the prior written permission of the publisher.

  Twelve

  Hachette Book Group

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  New York, NY 10017

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  Twelve is an imprint of Grand Central Publishing.

  The Twelve name and logo are trademarks of Hachette Book Group, Inc.

  First eBook Edition: July 2009

  ISBN: 978-0-446-54567-9

  Contents

  COPYRIGHT

  INTRODUCTION

  CHAPTER 1: The Early Years

  The Art of Making Laws

  CHAPTER 2: California State Assembly to Congressional Subcommittee Chairman

  CHAPTER 3: HIV/AIDS and the Ryan White Act

  CHAPTER 4: The Orphan Drug Act

  CHAPTER 5: The Clean Air Act

  CHAPTER 6: Nutrition Labeling and Dietary Supplements

  CHAPTER 7: Pesticides and Food

  The Art of Oversight

  CHAPTER 8: Fraud, Waste, and Abuse

  CHAPTER 9: The Tobacco Wars

  CHAPTER 10: Steroids and Major League Baseball

  CONCLUSION

  ACKNOWLEDGMENTS

  ABOUT TWELVE

  To my wife and life-partner, Janet, whose love and devotion has been the single best thing that has happened to me; to my daughter, Shai Abramson; to my son, Michael Waxman, and daughter-in-law, Marjorie Waxman; and to my grandchildren, Ari, Maya and No’a Abramson, and Eva and Jacob Waxman, who mean the world to me.

  INTRODUCTION

  During my thirty-five years in Congress, I’ve been involved in hundreds of hearings. Many were forgettable. A handful have had lasting impact. And one, on April 14, 1994, stands among the great Washington dramas. Like the McCarthy and Watergate hearings, it has assumed a place in popular mythology as a turning point in our national history that lives on in textbooks and Hollywood movies.

  On that morning, in a hearing room of the House Energy and Commerce Committee, the CEOs of the nation’s seven largest tobacco companies assembled for the first time to testify before Congress. I had summoned them there in my capacity as chairman of the Subcommittee on Health and the Environment to answer questions about the $61 billion industry they controlled and the 440,000 people who died every year as a result of its products. It was a showdown that had been years in the making.

  The life of a congressman is often one of painstaking process. You endure the daily grind of committee meetings, markups, and hearings in order to build the foundation that all great legislation requires—from landmark measures like the New Deal, the Civil Rights Act, Medicare and Medicaid, to major new initiatives like climate change legislation and universal health care that could soon be enacted. You persevere so that those who abuse the public trust will be held to account. But mostly you do it for the rare and fleeting occasions when your actions might improve the lives of millions of your fellow Americans.

  For years, tobacco had been a crisis that screamed out for government oversight, and as chairman of the House subcommittee responsible for overseeing the public health it was my job to address it. This didn’t make me popular. A staffer for a Republican colleague from Virginia’s tobacco country had an ashtray in his office with my picture at the bottom for stubbing out his cigarettes. But the Centers for Disease Control and Prevention had declared tobacco “the single largest preventable cause of death and disability” in the United States. Yet for forty years, Congress had allowed the tobacco industry to operate with impunity. Since 1953, scientists had known that tobacco caused cancer in rats. But despite thousands of studies and overwhelming scientific consensus about its deadly effects, the industry’s Washington lobby was so powerfully entrenched that tobacco effectively stood beyond the reach of the government to regulate or control.

  In 1994 nearly twenty years had passed since I arrived in Washington as a young congressman from Los Angeles, and during that time I had seen firsthand how the tobacco industry manipulated Washington: how it spread enormous sums of money to both Republicans and Democrats; how it attempted to silence representatives of minority communities (whose members tobacco kills more quickly than the broader public) with lavish grants for local charities and arts programs; how it created the illusion of scientific authority by funding pseudoscientific outfits like the Council for Tobacco Research that The Wall Street Journal called “the hub of a massive effort to cast doubt on the links between smoking and disease”; and especially how the CEOs had shrewdly hidden themselves from view, instead putting forward these dubious “experts” and advertising icons like Joe Camel and the Newport Kids to serve as the public face of this deadly industry.

  By inviting the CEOs to testify, I hoped to change that image and expose the men who controlled this deadly business to the full glare of the public spotlight. Many people had struggled for many years to lay the groundwork necessary for this day to happen.

  Congress is held in low regard by much of the public, which tends to view its members as officious or inept. But most of the critics I encounter lack a full appreciation for what Congress really does. The Constitution confers powers on its members that, when properly deployed, can yield widespread benefits to all Americans. Tobacco is a good example. Over the years, my staff and I had done all we could to establish a public record of tobacco’s harm and build what we hoped would become the necessary pressure to finally force government action. We had won some small skirmishes, narrowly passing legislation requiring warning labels on cigarettes and banning smoking on airplanes. In 1993, when the Environmental Protection Agency proved the deadly effect of secondhand smoke, I had introduced a bill banning smoking in public buildings, and then led a hearing in which the last six surgeons general—four Republicans and two Democrats—testified in support of it. Soon afterward, McDonald’s announced plans to ban smoking in its restaurants, and so did the United States military.

  Evidence had recently begun to leak from inside this notoriously secretive industry that companies were marketing to kids and spiking the level of nicotine in cigarettes to keep smokers addicted. This, too, had prompted a hearing just weeks before the CEOs had their turn. David Kessler, the commissioner of the Food and Drug Administration, had testified that cigarettes were “high-technology nicotine delivery systems,” and he let it be known that the FDA was considering regulating tobacco, citing the reports of nicotine spiking as justification. Gradually but inexorably, my congressional allies and I had used the levers of government power to create national momentum to confront this vital issue.

  All of this fed the growing awareness of tobacco’s dangers. By April 1994, 91 percent of Americans believed that cigarettes were addictive. The tobacco industry, as it always did, used its considerable money and influence to strike back. In the months before the CEOs testified, the industry had sued the EPA for its report on secondhand smoke and the city of San Francisco for banning public smoking, and then it filed a $10 billion libel suit against ABC for its reports on nicotine spiking—all in an effort to intimidate and silence critics. What had finally compelled the CEOs to come out of the shadows and testify was the mounting pressure we had managed to create. Now, the full weight of the tobacco industry was about to strike at us.

  THIS WAS A POSITION I WAS WELL ACCUSTOMED TO. NEARLY EVERY worthwhile fight in my career began with my being badly out-matched. The other guys always have more money. That�
��s why Congress is so important. Run as it should be, it ensures that no special interest can ever be powerful enough to eclipse the public interest. The story of the tobacco fight, and many others like it, is testimony to how Congress can work for the greater good.

  Sadly, the view of government as a positive force that serves its people is one that has all but vanished since I first ran for office. Today, disdain for government is so strong that it has given rise to the idea that Congress in particular cannot do much of anything right. This cynical outlook has been nurtured by a thirty-year-long crusade led by ideological conservatives to turn the American people against their elected officials by continually disparaging them and all that they do. Ronald Reagan epitomized this attitude when he declared, “The scariest words in the English language are, ‘I’m from the government and I’m here to help.’”

  As someone who has spent those thirty years in Congress working for the general good, I strongly reject this notion. I’ve lived the frustrations of Congress and spent a great deal of time investigating incompetent government, so I understand the complaints. But I also have plenty of experience passing legislation against fierce opposition, and then watching the bills bring important benefits to people all over the country. And I know firsthand how government oversight reduces fraud and abuse. Congress is far from perfect and would benefit from some important reforms—but at a fundamental level it not only works, it is a tremendous force for good.

  I wrote this book to explain how Congress really works and to give an idea of the many accomplishments that are routinely overlooked, misunderstood, or drowned out by partisan attacks. During my time in Congress, I have participated in a number of difficult but important fights that have had enormous positive influence on people’s lives—legislation limiting toxic air emissions, so we can all breathe cleaner air; expanding Medicaid coverage for the poor and elderly; banning smoking on airplanes; funding the first government-sponsored HIV/ AIDS research; lowering drug prices through generic alternatives and fostering the development of hundreds of new drugs to treat rare diseases and conditions that pharmaceutical companies had ignored; putting nutritional labels on food, and keeping it free of pesticides, so that you know what you and your kids are eating; and establishing federal standards for nursing homes to protect the elderly from abuse and neglect. I have also used congressional oversight powers to protect taxpayer dollars and stop waste, fraud, and abuse in areas ranging from Wall Street to the Hurricane Katrina clean-up to the wars in Iraq and Afghanistan. In the chapters ahead, I’ll use many of these examples to demonstrate why negative views of government are so often misguided and how the lessons of my three decades in the House of Representatives can be applied to make Congress even more effective.

  ONE REASON PEOPLE DON’T APPRECIATE GOVERNMENT AS FULLY as they might is that many of the positive changes take years to fully materialize. Certainly, no one present at the tobacco hearings could have foreseen the magnitude of their effect. The iconic photograph of the seven CEOs standing with right hands raised as they swore an oath that each would proceed to break in full view of the American people did indeed change tobacco’s public image; and their claim that they did not believe cigarettes to be addictive became national news. In the days after the hearing, the industry launched a massive counterattack against the “witch hunt” that it claimed its leaders had been forced to endure. One sympathetic columnist called the hearing “an odious, contemptible, puritanical display of arrogance and power,” while another compared me to Joseph McCarthy. But they could not sustain the lie for very long. In the months and years that followed, key portions of the executives’ testimony would collapse in the torrent of documents and testimony from industry insiders that the hearing unleashed. Even Hollywood took notice, as Russell Crowe and Al Pacino dramatized the story in the hit movie The Insider.

  Driven by Congress, the focus on tobacco’s dangers led states and municipalities across the country to ban smoking in public buildings, and persuaded untold numbers of people to quit smoking or, better, never to start. Countless lives were saved.

  But on the morning of April 14, 1994, as I climbed the stairs to assume the chairman’s seat, that was all still just a vague hope, and I could think only about the challenge at hand. Seated before me in the packed hearing room, flanked by television cameras, were the seven powerful men who together represented the American tobacco industry. The most formidable Washington lobby that money could buy sat just behind them, a phalanx of high-priced lawyers, political fixers, and public relations spinners who had managed to keep the industry shrouded in secrecy, and hold the government at bay, for almost forty years.

  On my side sat a handful of committed colleagues whose years of hard work had culminated with this historic hearing in which each would play a key role. They included Mike Synar of Oklahoma, Ron Wyden of Oregon, and Mike Kreidler of Washington, who would describe in vivid detail to the tobacco executives seated across from him his own father’s prolonged and terrible death from emphysema after a lifetime of smoking. My staff had locked themselves in the office the night before to develop lines of questioning and guarantee that nothing leaked to our resourceful foes. We had prepared well. But no one doubted that we were seriously outgunned.

  In the moments before the proceedings got underway, I reminded myself how I had arrived here. I thought about my parents, who had instilled in me a belief that government matters and that public service is a noble calling; my early days in California politics, when I’d been part of a group of reformers that had overcome the state’s entrenched powers; my battle sixteen years earlier against some of the most powerful men in Congress for the chairmanship of this very subcommittee, so that I might bring accountability to industries like tobacco that operate without any. Everything had built to this moment. This was why I was here.

  Then I raised my right hand and banged down the gavel. “The meeting of the subcommittee will now come to order.”

  CHAPTER 1

  The Early Years

  I WAS BORN IN 1939 IN THE EAST LOS ANGELES NEIGHBORhood of Boyle Heights. Though my parents met and married in Los Angeles, they share a common ancestry. Both families emigrated from what was then called the Bessarabia region of the Russian Empire (what is today known as Moldova), to escape the anti-Jewish pogrom of 1903. The Boyle Heights of my youth was a teeming immigrant community, with a heavy representation of Russian and Eastern European Jews, along with Mexicans, Japanese, and many others.

  When I was growing up, politics was a passionate interest of the Waxman household. My father, Lou Waxman, was the most political person I knew, and my mother, Esther, was not far behind. One of my most vivid memories as a child is going to bed on the night of the 1948 election and waking up the next morning to find my parents still huddled around the radio listening to the news that Harry Truman had won.

  My earliest lessons about politics were delivered over the dinner table. My father was an ardent Democrat, who worshipped Franklin Roosevelt and the New Deal. For a long time he worked for a retail grocery chain as a proud member of the Retail Clerks Union #770. Unions served the vital purpose of looking out for workers, he explained to me, because without their protection management would only hire clerks during the busy hours. The rest of the time you’d be out of a job, and unlikely to be able to support your family.

  Like so many of his generation, my father was scarred by the Great Depression. The need to support his family forced him to quit high school, and he was never able to fulfill his dream of going to college. But his view of government, which he imparted to me, was unremittingly positive. He believed that it was a tremendous force for good and could do still more, often reminding me how much Roosevelt had done to help families like ours survive the hard times. It was the government, he would tell me, that finally stepped in to halt the practices of big business that had caused the Depression and got the country moving again. Business only looked out for its own. But government was the great equalizer. It ensured that the littl
e guy had a chance.

  One thing that has changed markedly since my childhood is how most Americans view their government. In Boyle Heights, everyone thought of government as an institution that helped people, an especially vital resource for the immigrant community. Government provided people with the means to get an education, through the public school system. It provided security for the elderly, through the Social Security program. It did not occur to anyone to rail against government or to regard it as a vast malign force, as so many people do today. To us, government supplied the means to move up the economic ladder and improve our lot in life. It provided a path to the middle class.

  My family’s passion for politics was as much active and participatory as ideological, and it manifested itself most prominently in the figure of my uncle, Al Waxman. My father’s older brother was a fiery liberal, the founder and publisher of the local newspaper, the East Side Journal, whose proud Democratic viewpoint provided a sharp contrast and a necessary counterweight to what was then a very right-wing Los Angeles Times. During World War II, as Californians of Japanese heritage—many of them our neighbors—were rounded up and forced into camps, the East Side Journal was one of the few newspapers in the country to editorialize against this outrage.

  Uncle Al’s activist streak did not limit itself only to newsprint. Even back in the 1940s, Los Angeles was often blanketed by a thick layer of smog. No one knew precisely what caused this or quite how to fix it, so the Los Angeles County Smoke and Fumes Commission was established to investigate the problem, and as a figure of some prominence in the community, Uncle Al became one of its earliest appointees. He didn’t last long. Soon after the commission began its inquiry into the reasons for the poor air quality, he concluded that pollution from local industry was a significant contributor. Nor was he shy about saying so. On a commission stacked with local bigwigs, blaming industry for the city’s pollution caused a good deal of political discomfort for its members, and Al was soon pushed out. But his activism was always a source of family pride and his example offers a lesson that I have learned time and again during my career: Criticizing powerful interests is frequently necessary and does not make you a popular fellow.