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From health care to voting rights, Ted Kennedy’s legacy faces fire

In the five years since the death of Kennedy, his mission has been under threat, piece by piece.

Senator Chris Dodd of Connecticut was Kennedy’s closest friend in the Senate. // photograph by Mannie Garcia/Reuters





photograph by Lane Turner/Globe staff/file
Lane Turner/Globe staff/file

TED KENNEDY knew he didn’t have much time. It was January 20, 2009, and the senator was exulting in a great moment for his Democratic Party and for civil rights history, lunching in the ornate Capitol where he had served for 46 years and celebrating the inauguration of the nation’s first African-American president. Battling an aggressive brain tumor, Kennedy collapsed at the luncheon and was taken to the hospital, a worried Senator Chris Dodd riding in the ambulance with him. It was not the end. But it was a somber reminder to the Massachusetts lawmaker and his Senate allies of the pressing matter of time. He had a new Democratic president, Democratic majorities in both chambers of Congress, and an ambitious legislative agenda dominated by what he called the cause of his life: health care for all. And his own health was failing fast.

Shortly after the luncheon, Kennedy summoned his “team,” recalls Senator Barbara Mikulski, deputizing his closest friends on the Health, Education, Labor and Pensions (HELP) Committee with tasks to shepherd the issues he had worked on for decades. “Barb,” as he called her, was to continue the push to expand national service programs, pass the Lilly Ledbetter equal pay law, and protect higher education funding. Iowa Senator Tom Harkin, who worked with Kennedy on the Americans With Disabilities Act, continued the fight for disability rights and labor rights. And Dodd, the Connecticut senator who was Kennedy’s closest friend in the Senate, served as the de facto chairman of the HELP committee and advanced the Affordable Care Act, casting Kennedy’s votes in committee when he was too weak to attend and calling Hyannis Port to brief him when Kennedy could no longer make it to Washington.

Even as he was losing the fight with his tumor, Kennedy was determined to continue the crusade for his legislative agenda. “He gave us all assignments to do the job and keep the job going,” Mikulski remembers of that day.

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More than his tact, it was Kennedy’s demeanor — the bigness of his personality, the history etched in his quintessentially Kennedy face, and the voice that could boom with conviction on the floor or howl with laughter in the hall — that had a way of coercing, even shaming, fellow lawmakers into compromising, his colleagues say. “People revolved around him like a planet around the sun,” Senator Jack Reed, a Rhode Island Democrat, says. “He had a very shrewd legislative mind — understood when to give a fiery speech and when to sit down.” Kennedy was famous for small gestures and favors. Senator Susan Collins, a Maine Republican, recalls receiving from Kennedy an out-of-print book his mother had written, autographed by him for Collins’s mother. “If Senator Kennedy were still with us, I do not believe we would have had the breakdown in the Senate we experienced last year,” Collins says. Longtime Republican Senator Orrin Hatch of Utah says he would like to find a Democratic partner to negotiate with, but “there is not anyone on the Democratic side who can fill Kennedy’s role.”

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MIKULSKI FOUND HERSELF hospitalized in August 2009, recovering from a badly broken ankle. There, she met a night nurse who asked if the Maryland Democrat knew Kennedy, and then told the senator how the national service program Kennedy and Mikulski had championed had changed her life. The nurse had been a housekeeper but discovered when she served in AmeriCorps that she had a talent for health care. She used her AmeriCorps education voucher to be trained in nursing.

Days later, the nurse returned in the middle of the night to wake Mikulski. Kennedy had died at his home in Hyannis Port. “We sat on the edge of the bed, holding each other. We cried and we prayed,” Mikulski remembers. The expansion of national service, the Edward M. Kennedy Serve America Act, had been signed in April and celebrated at a political star-studded ceremony at a local D.C. school. It had been Kennedy’s last public appearance.

By the end of 2009, some of the goals of Kennedy’s final mission were realized. And the impact of his palpable absence on Capitol Hill was already being felt. For Dodd, those two things hit him dramatically, together, on Christmas Eve morning.

The Senate had just voted to pass the Affordable Care Act, paving the way for its signing. Dodd — exhausted after a year that included Kennedy’s death, the loss of his sister, also to cancer, and a bout with prostate cancer himself — was headed out to spend Christmas with his family. He decided to stop at Arlington Cemetery to visit Kennedy’s grave. When he arrived, the grave was obscured by snow, so the Connecticut Democrat climbed up the hill, turning back to look over the city where he had served for 35 years. “I said to myself, ‘Do you want to do this again?’ I made the decision not to run again that morning,” Dodd says. “He was gone, and there was going to be change. I didn’t have the heart anymore.”

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Change was indeed happening — and quickly. The year after Kennedy’s death was cataclysmic for the Democrats, who lost Kennedy’s seat to Republican Scott Brown in February and six more Senate seats that fall. Republicans picked up 63 seats, and the majority, in the House. Many of the new lawmakers were Tea Party movement members determined to undo the liberal legislative record Kennedy had spent more than four decades building. Meanwhile, the Hill was moving into a state of historic dysfunction, as the brash new team of Tea Partiers balked at compromising on even the most mundane tasks. The days of working on big-idea legislation — be it social programs or immigration law overhaul — were gone, and Congress found itself increasingly unable to pass basic bills. Lawmakers who once sparred during floor debates but shared cocktails in the evening stopped building the sorts of personal relationships that had led to professional accord.

By design or by neglect and for better or for worse, depending on which way you lean, in the five years since the death of Kennedy, his mission has been under threat, piece by piece.

President Obama’s health care law faces undoing by Congress or by the courts. Voting rights, which Kennedy had championed, were disrupted by a 2013 Supreme Court decision ordering Congress to reconsider which states must prove their laws don’t disenfranchise African-American voters. The Children’s Health Insurance Program, which Kennedy created with his odd-couple Senate colleague, Hatch, is still in place until September, but faces a battle for funds, Hatch says. College costs and student loan debt have ballooned, but Pell Grants — a program for needy students Kennedy strongly supported — was cut by $300 million last year. The No Child Left Behind law, which Kennedy so famously negotiated across the political aisle with President George W. Bush, is under assault from the left and the right. The Americans With Disabilities Act is intact, but court interpretations of what constitutes a disability may keep the law from protecting those who need it, says disability rights expert Robert Burgdorf. An international treaty on disability rights failed last year.

The list goes on. A minimum wage hike — a continual Kennedy fight — is going nowhere in the GOP-controlled Congress. Immigration reform is also virtually dormant, eight years after Kennedy brokered bipartisan negotiations to write a sweeping bill that came close to getting passed.

U.S. Senator Ted Kennedy (D-MA) and Senator Christopher Dodd (D-CT) (L) hold a joint news conference at the U.S. Capitol Building in Washington, D.C., July 1, 2005. Dodd and Kennedy both urged U.S. President George W. Bush to replace retiring Supreme Court Justice Sandra Day O'Conner with someone in her conservative mainstream mold to unite the nation and avoid a potentially bruising confirmation battle. REUTERS/Mannie Garcia Library Tag 07142005 Metro ted kennedy / edward kennedy / senator kennedy / sen kennedy / edwardmkennedy
Mannie Garcia/Reuters
Senator Chris Dodd of Connecticut was Kennedy’s closest friend in the Senate.

WHETHER ANY OF these issues would turn out differently if Kennedy were still alive is an open question. After all, he would still be tangling with a very conservative Congress hostile to much of his agenda. “You have more people coming in not wanting to get things done, but to prevent the government from doing anything,” says Rhode Island’s Reed.

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But lawmakers in both parties, many of them frustrated by the unhappy state of affairs in Congress, talk about the what-ifs. Republicans say Kennedy might well have made the volatile Hill less contentious by his attention to detail in legislation, along with his willingness to listen to the other side. Kennedy and Bush traveled together to promote No Child Left Behind after it was signed into law — a bipartisan display that would be unimaginable now. But while the law likely needs tweaking, according to Sandy Kress, who served as Bush’s education adviser, the issue has become a partisan “lightning rod” preventing the two sides from working together to fix it. “The Republicans are kind of back to stale federalism,” says Kress, reverting to a classic conservative states’ rights approach that opposes federal involvement in K-12 education, while Democrats are joining teachers unions that oppose the law for other reasons. “It’s not very promising.”

Senator John Barrasso, Republican of Wyoming and the force behind the effort to repeal Obamacare, says the law would have had far fewer problems if Kennedy had been well enough to attend to the details. “Senator Kennedy’s stature and knowledge and leadership on this issue would have resulted in a very different plan,” Barrasso says, adding that Kennedy would have done more on cost control and would have held Obama to his pledge that Americans could keep their health plans if they desired. “He listened to other people’s ideas, and that’s something that was sorely lacking in this bill,” says Senator Mike Enzi, also of Wyoming and the ranking Republican on the HELP Committee when Kennedy chaired it.

Steny Hoyer, the House minority whip and a Kennedy friend, says even the relationship between the president and Congress might have been smoother if Kennedy had been around to provide the benefit of his many years in the chamber. Since Obama was in the Senate only briefly before moving into the White House, “he didn’t make any lasting relationships,” Hoyer says. “If Kennedy were here, it would have been a much better bridge.”

The Senate is indeed different now, and it’s not just because Kennedy is gone. The era he represented is gone, too. There’s a testiness on the Hill, exacerbated by years of war and recession. Only 54 senators served with Kennedy, and just 30 served a full term with him. “One of the things Ted had was a sense of history, and fortunately he had a lot of us in both parties with a sense of history to work with him,” says Senator Patrick Leahy. “We’ve got to go back to those days,” the Vermont Democrat says. That may be an optimistic goal. In February, senators met in a room named for their deceased colleague for what was to be a rare bipartisan lunch. After a cordial but legislatively unproductive meal in the Kennedy Caucus Room, they trooped back to the Capitol. There, they voted 53-47 not to allow an up-or-down vote on a Homeland Security funding bill that would have undone Obama’s executive order on immigration. Only one senator crossed the aisle to vote with the other party.

Edward M. Kennedy Institute

Milliganglobe@yahoo.com.