Elena Kagan has been battle tested by tobacco legislation in the '90s

By Alec MacGillis
Washington Post Staff Writer
Friday, June 4, 2010; 2:11 PM

She was a White House aide who, at the age of 37, had become President Bill Clinton's point person on a big tobacco bill, impressing veteran Senate Republicans with her hard work and intelligence.

But then a magazine article portrayed Elena Kagan as the driving force behind the legislation, a central player who had bent it to the White House's liking. This did not sit well with Republicans overseeing the bill, a group led by Sens. John McCain (Ariz.), Orrin G. Hatch (Utah) and Bill Frist (Tenn.)

Kagan rushed to apologize, eager to repair any damage to the compromise she had spent months to craft, which would have regulated tobacco for the first time. The senators accepted the apology, but just weeks later, the legislation collapsed, felled in a political showdown that overwhelmed Kagan's painstaking efforts to find a middle ground.

"It was very disappointing," said Rich Tarplin, then a lead negotiator for the Health and Human Services Department. "It was one of those things where you knew right away that the planets don't align often and we'd missed an historic opportunity."

In Kagan's trajectory through the legal and political establishment to become President Obama's Supreme Court nominee, the tobacco battle of the 1990s proved formative for someone who had little exposure to the messy realities of policymaking. In forging a deal that could satisfy Congress, public health advocates, states and tobacco companies, Kagan was for the first time in a high-profile role where she would hone the characteristics she has become known for: finding compromise in pursuit of a daunting goal and using her command of complex issues to win over powerful people with outsize egos.

The battle drew attention to Kagan as a force to be reckoned with, but it also was a lesson in the limits of compromise and persuasion, especially in the face of big lobbying efforts and partisan rancor. Even as she made inroads, White House attempts to keep both sides happy foundered badly, delivering a major blow to the administration.

"It got too big. We put in anything that anyone wanted," said Mike Moore, the Mississippi attorney general at the time, who had led a multi-state lawsuit against tobacco companies. "It became a Christmas tree that imploded under its own weight."

Kagan first entered the tobacco thickets as assistant White House counsel in 1995 and 1996, when Clinton officials were strategizing with state attorneys general, trial lawyers and public health officials about how to reduce smoking and recoup public health costs. After she was promoted to deputy domestic policy adviser in 1997, she took the lead in developing the legislation needed to complete a historic $368.5 billion settlement that tobacco companies had agreed that year to pay to help cover state health costs caused by smoking.

The legislation needed to define the new authority of the Food and Drug Administration to regulate tobacco, a key settlement provision. It would limit the industry's future liability, a condition of its support, and establish fees and taxes for the industry and limits on advertising.

Those who had been working on the issue for years noted that the White House was giving a relatively junior person a lead role. Richard Daynard, chairman of Northeastern University's Tobacco Products Liability Project, recalls going to the White House for a meeting presided over by Health and Human Services Secretary Donna Shalala and Kagan's boss, domestic policy adviser Bruce Reed. But a colleague pointed out the younger woman behind them.

"He said, 'The one who's really running this thing is neither Bruce or Donna but someone called Elena Kagan,' " Daynard said.

Kagan, a smoker who had recently quit, faced multiple crosscurrents. State officials thought that Clinton was not doing enough to promote their settlement. Public health experts such as C. Everett Koop, a former surgeon general, and David Kessler, the just-departed FDA chief, called the settlement a sellout because it included liability caps. And as 1998 began, the White House was distracted by the Monica Lewinsky scandal.

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