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146 21 The Two Ks to the Rescue As the promise—or threat—of a concluded settlement drew nigh, Jeff Birnbaum of Fortune Magazine told me he had concluded that legislation embodying the settlement would pass only if it drew the support of at least two of the “three Ks”—Kessler, Koop, and Kennedy. Ted Kennedy was the Senate’s preeminent public health advocate. Kessler and Koop were the public health statesmen whose prestige and public trust dwarfed those of all the others. As we have seen, Kessler’s and Koop’s openness to the settlement had waxed and waned as its general outlines had become known. The two were alternately awed by the extent of the industry’s concessions and outraged at the process of dealing with the devil and the need to make any concessions at all. But Henry Waxman, Kennedy’s House counterpart and ranking Democrat, had remained fixed in opposition from the first news leaks. Now Waxman had grown increasingly fearful that the coming together of the industry, the attorneys general, the White House, and a respectable —if unrepresentative—segment of the public health community would create irresistible momentum toward swift enactment of the negotiated legislation. Waxman recalled: The idea behind this whole agreement was that if Scruggs and Dick Morris and Bruce Lindsay and Trent Lott all signed off on a mega-agreement, they were thinking they would put it through quickly on some kind of reconciliation bill, there would be no dissent. How could anybody fight against an agreement with that much force behind it? And if there were some people that fought against it? Well, it’s a Republican-controlled Congress, and they’d lose. And the White House would be standing behind it, so they’d lose big. And if they could get some public health groups to give them some support, they’d have strength in their position. So I could see the steamroller coming. The Settlement 147 Only the combined moral force of Kessler’s and Koop’s unequivocal opposition, he reckoned, could arrest this momentum. So, consulting with his key allies in the resistance movement, especially Fran Dumelle of the Lung Association, Waxman called Dr. Koop and asked if he would agree to convene and co-chair with David Kessler an advisory committee of public health representatives to scrutinize the settlement and render its judgment to the Congress. Waxman knew that Koop and Kessler were both skeptical of the negotiations, if not hardened in a position against the settlement. He also calculated—correctly—that even though a request by a handful of minority Democratic House members to form an “advisory committee to Congress” was hardly an official imprimatur, the combined public prestige of Koop and Kessler would assure that any such committee would instantaneously assume quasi-official status, a high media profile, and an arresting influence, at least on the White House, which remained highly sensitive to the goodwill of the public health community. He anticipated that a committee broadly representative of the public health community would provide a pulpit for those most hostile to the settlement. And he also knew that, in such a committee, with Koop and Kessler at the helm, the group pressure to unite in an unequivocal stand against the flaws in the settlement would silence or mute the moderating voices of those who privately favored the settlement , and stiffen the resistance of the rest. As Waxman later reflected: We [Waxman, Kessler, and Koop] were in synch with each other as to where we were going with the agreement and what the pitfalls were. It seemed to me that the biggest problem we were going to have legislatively was to have the public health advocacy groups split. If we were going to get any changes in the agreement, we needed to have that agreement scrutinized very carefully. So we got members of Congress who have been advocates and fighters for tobacco control to ask our advocacy community not to go off in different directions, but all come together. I didn’t want to split anybody off. I wanted them all together. Let them all sit together and give us an honest evaluation from their point of view, from the public health point of view, what the deal is all about and what we needed. It just seemed to me an idea that made a lot of sense, and it just leapfrogged over a lot of the division. Waxman first approached Koop, who readily agreed. Then...

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