January 20, 2006

ANNOUNCER: From our nation's capital, this is Washington Week. And now, here's moderator Gwen Ifill.

GWEN IFILL: The states are the battleground on assisted suicide, abortion, and prescription drug snafus, while Congress wrestles to reform itself. At the Supreme Court, the spotlight turned to Oregon as the justices rejected a Bush administration challenge to a landmark right-to-die law.

MS.Barbara Coombs Lee, President of Compassion In Dying Federation: The cloud of federal intrusion in state medical practice has been hanging over legislative efforts in other states.

MS. IFILL: The spotlight turned to New Hampshire after the Court refused to declare its abortion notification law invalid. What are other states going to do? The spotlight turned to California and Wisconsin and a dozen other states now stepping in to fix the federal governments convoluted prescription drug plan.

Mike Leavitt, Secretary of Health and Human Services: It's a relatively small group, but for every single person who's in that group, this is a big problem.

MS. IFILL: While in Washington, Congress tried to get a step ahead of the prosecutors. Presenting lobbying reform plans they say will allow lawmakers to regulate themselves.

REP. J. DENNIS HASTERT: We need to reform the rules so it's clear beyond a shadow of a doubt what is ethically acceptable for members of Congress.

MS. IFILL: How clear is it? For that we turn to the reporters covering the stories. Linda Greenhouse of the New York Times, Karen Tumulty of Time Magazine, Ceci Connolly of the Washington Post, and Eamon Javers of BusinessWeek.

MS. IFILL: Good evening. Just last week we were asking what kind of Supreme Court justice would Samuel Alito make? This week, in two court actions we got to see why that answer matters. In the first, the Court turned aside a challenge to Oregon's Death with Dignity Act, but not for the reasons you might immediately imagine. The six to three majority said the federal government can not step in to regulate a medical practice traditionally overseen by the state. Or, as Justice Anthony Kennedy wrote, the authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design. The statute Justice Kennedy was referring to was the Controlled Substances Act of 1970 and the attorney general in this case was John Ashcroft. So was this all just about overreaching on the part of the attorney general? Linda?

LINDA GREENHOUSE: Well, this was a very interesting case that really proceeded on two levels. One level, or I should say in the background is the societal debate that we've been having in this country for some years. There's been one Supreme Court case on it already, back in 1997, over the notion of physician assisted suicide for terminally ill people. So that's the background and the justices were clearly aware of that.

In the foreground, or what the case was about as a legal matter, was a very conventional case that comes under the topic of administrative law, which is, did the Executive Branch Agency, or in this case, the attorney general himself - the former Attorney General John Ashcroft, have the statutory authority that he was invoking? And what the Court said by a vote of six to three was no. In this case, when Attorney General Ashcroft said that any doctor in Oregon who prescribed lethal doses of federally regulated drugs would risk losing his or her federal license - basically license to practice medicine; it's not particularly that, but wouldn't be able to practice medicine, and by what authority did the attorney general do this? And the Court said, by six to three, he did not have the authority to do it.

MS. IFILL: It's so interesting because it seems like we've been having a lot of discussions lately about executive authority, and this kind of falls into that.

MS. GREENHOUSE: Well, it kind of - yes, it kind of does. I mean, the Court typically - there are several doctrines which call - doctrines of deference which call for the Court - for the courts generally to defer to an agency that has issued an interpretation of an ambiguous statute. If the agency says, "A and not B," then the courts are supposed to say, "Okay, you say A. You're the expert agency." Here what the majority found was there was nothing ambiguous. The statute - the Controlled Substances Act - simply did not give the attorney general the authority to do what he did in carrying out his own personal crusade against assisted suicide.

CECI CONNOLLY: You know, Linda, I'd been doing some reporting on what's actually happened in Oregon over the past seven years with this law on the books, and it was striking. I think there've only been 208 actual physician-assisted suicides over that full seven-year period. And we learned that for a number of patients it's just having that control to ask for a prescription or have that in the drawer in case it reaches a certain point. I'm wondering now if you expect other states to follow suit.

MS. GREENHOUSE: Well there are organizations that - advocacy groups that are hoping that this will be the result, that both legislatures and also in states like - Oregon was not a legislative act, it was the voter initiative -

MS. CONNOLLY: Right.

MS. GREENHOUSE: That in initiative states, this will kind of reinvigorate this movement. On the other hand - you know, on the other side of the coin, the Court certainly indicated that had Congress chosen to give the attorney general this authority to bring the weight of the federal government in against the Oregon law, he could have done so. So there's a fear among these advocates that Congress may read the tea leaves here and say, "Okay, the Court said we didn't speak explicitly enough. Well, let's get in there and do it."

KAREN TUMULTY: You know, Linda, back during the campaign when George Bush was asked what kind of justice he would like to see on the Supreme Court, what kind he would appoint, he talked about Clarence Thomas and Scalia. You look at how this six-three breaks down, and there it was on the front page of the New York Times. The three were Scalia, Thomas, and Roberts. Does this mean George Bush is getting the kind of Supreme Court he wanted?

MS. GREENHOUSE: Well, it was interesting. This was the first dissenting vote that the new Chief Justice John Roberts cast. So far this term I think there've been 14 opinions this term, and this was the - his first dissenting vote. And it was also the biggest case so far of the term, I think it's fair to say. So, yeah, you're left kind of scratching your head because Justice Scalia wrote a dissenting opinion, Justice Thomas wrote a dissenting opinion, and Chief Justice Roberts didn't say anything. He joined the Scalia opinion and let Scalia speak for him. So we don't know exactly what was going on there.

EAMON JAVERS: And how about Alito? Is there anyway to predict how he would have voted on this issue? You've got a situation where it looks like he's going to slide through onto the Supreme Court once -

MS. GREENHOUSE: Yes.

MR. JAVERS: - Congress gets done all the speechifying.

MS. GREENHOUSE: Well, of course, not directly. He didn't answer any direct question on this, but -

MR. JAVERS: Or maybe on -

MS. GREENHOUSE: - wouldn't be surprising to think that Justice O'Connor, whom he would replace, was in the six to three majority, so if you take her away and put him in it would have been five to four.

MS. IFILL: Okay. Well, thank you, Linda. A second significant Supreme Court ruling this week was also rife with political implication. The state of New Hampshire, retiring Justice Sandra Day O'Connor wrote, is responsible for correcting the shortcomings in a law that requires patients - parents, that is, and guardians to be notified before a minor has an abortion. O'Connor used what may be her final written opinion from the bench to restate a basic tenet of abortion law: that a state may not restrict access to abortions that are necessary in appropriate medical judgment for preservation of the life or health of the mother. The Supreme Court action was narrow, but supplied more proof that states are increasingly taking action to limit abortion in ways the Supreme Court, Congress, and the president have not.

How widespread is that? Karen.

MS. TUMULTY: Well, in fact, last year states across the country passed no fewer than 52 laws limiting abortion in one way or another. And that was more than twice as many antiabortion or limiting abortion laws as we have seen come out of state legislatures the year before. States are moving quite aggressively to - you know, again within the scope of Roe versus Wade and what the Supreme Court will allow, to limit abortion as much as they can. And that is usually taking the form of, for instance, parental notification laws saying that a girl who's not 18 needs the permission of her parents to get an abortion, or requiring a 24-hour waiting period, or that certain things be said to women in abortion counseling.

MS. GREENHOUSE: Karen, of course what was interesting in this New Hampshire case is that the New Hampshire legislature, the sponsors of this law, had deliberately omitted a medical emergency exception. And when the New Hampshire legislators on the other side - it was very close, it was just a margin of a few votes by which it passed - said, the Supreme Court has said you need a health exception, the sponsors said, we don't want it with a health exception, so this was a case where they were deliberately trying to send this up to the Court as a test case really. Have you seen that in others of these restrictions that are being passed around the country where the sponsors are saying, okay, we're going to throw this up to the Court and see what happens?

MS. TUMULTY: Actually, less so than used to be the case. I mean, originally the antiabortion movement, the ten years after Roe versus Wade - which celebrates its 33 anniversary this weekend, would actually - they were trying to pass a constitutional amendment. Then they changed their focus to trying to pass laws that would, in fact, trigger the overturn of all of Roe versus Wade. Now, however, I think state legislatures are in fact being a lot more cautious in how they draft these laws and trying to make them actually get through and pass muster with the Court.

MR. JAVERS: Is there something larger behind the flurry of state activity that you're seeing here? I mean, are Americans changing their minds about what they think about abortion fundamentally and how it ought to be allowed and not allowed?

MS. TUMULTY: You know, it's really interesting because public opinion about abortion has not changed much at all since Roe versus Wade in 1973, but what the public opinion seems to be is that people would like abortion to be legal, but they don't want it to be easy. And in some ways these laws are really sort of catching up with where the public itself is. And these restrictions are, by in large, extremely popular. Usually when these questions get polled, they get 60, 70 percent on things like: should a girl have to tell her parents before she gets an abortion.

MS. CONNOLLY: It's interesting that you see so many Americans now making these sort of sophisticated and nuanced kinds of judgments. It's not just a simple legal/not legal kind of opinion. I'm wondering, as you sort of look out over 50 states now, with each state taking a different approach and passing varied laws, if Roe were to ever be overturned, what would be the abortion picture look like in the United States?

MS. TUMULTY: Well, it would in fact return almost entirely to the states, and seven states right now have laws on the books that say the minute Roe versus Wade is overturned, abortion is outlawed in this state. But I think that, again, public opinion is such that in most states - many if not most states - abortion in some form would remain legal, although possibly - and probably - with more restrictions than we see today.

MS. IFILL: You know, we heard a lot during the hearings for Judge Alito and for Justice Roberts this discussion of judicial restraint. Maybe you can weigh in on this too, Linda, where they talked about I believe in a modest judiciary and that we should never overstep. And in both these cases it seemed to me that that was what they were acting on. They were turning this back to the states. They were saying, you've got to write the law more narrowly, not us. They were saying you've got to find a way to decide what - to comply with what we have said in the past about this issue, not us. It's not up to us to do that for you. Is that a correct reading, I guess, of what we saw happening a little bit?

MS. TUMULTY: Well, certainly in the abortion case, it was a very, very narrowly written ruling and that's one of the reasons it was unanimous.

MS. GREENHOUSE: Yeah. I think they were basically sort of marking time knowing that if they had really gotten into the issue, you would have had probably a 5 to 4 with Justice O'Connor in the majority, and of course the opinion wouldn't have come out by now, and she's leaving and he's coming.

MS. IFILL: This was a swan song for her?

MS. GREENHOUSE: Yeah, it was, but I think everybody just took a deep breath and said, okay, you know, we're in transition. We're all grown-ups. We're not going to waste a lot of emotion or capital on staking our ground here and so that -

MS. IFILL: We don't all agree, we know, but we're just going to all sign onto this. It was unanimous.

MS. GREENHOUSE: Yeah. We're going to sign on the raw minimum that we can all agree on, which in this case was not all that much.

MS. IFILL: Well, let's talk some more about the states because they're also stepping up to the bar when it comes to finding a way to fix the flaws in Medicare's new prescription drug program. Enacting prescription drug coverage was supposed to be a slam dunk political win for Congress and the Bush administration., but as its initial limitations have become clear, it has also become the job of state governments to avert a crisis. So what are the problems? And for now, what are the fixes, Ceci?

MS. CONNOLLY: Well, the most glaring problem that we've seen after just two and a half weeks of this new program and Medicare prescription drug benefit is that the sickest and the poorest elderly and disabled Americans are having great difficulty in taking advantage of this new coverage. It's for a variety of reasons. Many of them have to do with computer glitches, backlogs, difficulty getting through on the telephone, new identity or new ID cards not arriving in the mail on time, pharmacists who can't get through to check things. And so you're seeing many of these six million individuals, who had been covered by Medicaid until December 31st, which were the state programs, suddenly moved over to Medicare - the federal government program - not getting drugs.

And that's the heartbreaking thing when you think about this, because the whole reason for this legislation was to provide prescription drug coverage to people who didn't have it, and here you're taking a group of six million who did have it and are now being a little lost in the shuffle. And so that is the first problem that everyone is confronting.

What's being done? Well, a number of things. I mean, the administration is very quickly trying to downplay the problems. They're cracking the whip over these various insurance companies saying, you've got to add more people on your toll-free hotlines and you've got to fix your computer systems and work around the clock. And pharmacists, we need you to enroll people on the spot and provide them with drugs. But ultimately, Gwen, as you pointed out, more than 26 states have now stepped up and said, we're going to pay for their medications.

MS. IFILL: Because they can't take the political pressure. These are - the states used to be - because of Medicaid, as a state administered program, they used to be the ones who had to do this.

MS. CONNOLLY: Absolutely. And depending on each state and each politician that you're examining, some of them clearly are jumping on the bandwagon here because it's always good to be on the side of senior citizens in need of medicine, let's be honest. But on the other hand, you are seeing states spending many millions of dollars right now to give life-saving drugs to these individuals.

MS. IFILL: That they expect to be reimbursed for.

MS. CONNOLLY: They do indeed, yes.

MS. TUMULTY: So what about elderly people who aren't poor? Are they having difficulties figuring out how to navigate this program and whether it's a good deal?

MS. CONNOLLY: Yes, a number of them are. And I can tell you now from my own personal experience, I have been on that website that they recommend, and keep in mind: many of the 43 million seniors out there probably aren't surfing the web, but if they do or they have a child or a friend who can help them, the website takes a very long time to walk through. You can do it. But, for instance, I was in Pennsylvania earlier this week: in Pennsylvania you have a choice of 53 drug plans. Just imagine if you had to sit down and go through 53 of them looking to see who's going to give you a good deal on which of your drugs, when maybe you take five or ten drugs. So it's very difficult to say how it will shake out, but right now a lot of challenges.

MS. GREENHOUSE: Ceci, I've been kind of puzzled by this whole thing because the law was passed more than a year ago, right? So they had - I mean, it was not a surprise that it was coming in on the 1st of January. (Laughter.) So was anything happening in that year to anticipate or try to work through this?

MS. CONNOLLY: Yes, there definitely was. And, again, it's hard to start a new insurance program for 43 million people. That's a big undertaking. But what many people will tell you is, because this administration and Congress wanted it to be privately run, rather than a government-run program, you've got dozens, if not hundreds, of different insurance companies that are all getting in the mix. And it's taken a long time to establish rules and regulations to come up with the proper computer databases, et cetera. I will say that it is really puzzling why December 31 one program ended and January 1st the next one started. It seemed that maybe a phase-in, trial period might have been a good idea.

MR. JAVERS: You know, there's an interesting column in the New York Times. They are making a provocative argument that this is tied in some ways to the lobbying scandals that we're seeing here in Washington and saying that the lobbyists who wrote this thing, or the members of Congress who wrote this thing, in some ways traveled through that revolving door and became lobbyists. But other than for the guys who wrote it, how do we measure success in this program? I mean, are there metrics that we can look for?

MS. CONNOLLY: Well, there are already a few early indicators. The first is, Secretary Leavitt says that 24 million people are already getting drug coverage two and a half weeks in. The problem is that nearly 21 million of those people had it previously. So at the moment you're looking at three million people - new - getting drug coverage. That's one measure. Another important one is going to be a group of eight million seniors who should be eligible for subsidized drugs and only one million of them are now in the program.

MS. IFILL: So we'll be watching this, because this isn't the last time we'll be talking about it. Speaking of lobbyists, you haven't had to listen very closely this week to hear what Democrats have to say about the growing wave of scandal engulfing Capitol Hill.

SEN. HARRY REID: This is a culture of corruption.

REP. NANCY PELOSI: They all benefit from enabling the culture of corruption.

REP. Louise Slaughter: We will expose the deepest roots of the culture of corruption.

SEN. EDWARD KENNEDY: We're talking about a culture of corruption.

MS. IFILL: Well, those were a lot of people talking about the culture of corruption, as you picked it out. It was hard to miss the point they were trying to make. But are the Republicans, who control Congress and have been linked most closely to the latest charges of influence peddling, taking it lying down? Hardly. Both parties rushed out their own reform solutions this week, including proposals to ban travel and gifts and revolving-door access to Washington corridors of power, but will it make a difference? Eamon?

MR. JAVERS: Well, I'm going to give you an absolute maybe. I mean, it depends on what you mean by making a difference, really. Legislatively, yeah, something is going to pass this year. We're going to see a bill of some kind. There's not a member of Congress who'd sane who's going to vote against it, given the backdrop of Jack Abramoff that we've seen. But the other important question to ask about is culturally - will it change the culture of Washington. I mean, we tend to go through these cycles where we see a scandal once a decade or so and the format of that is a little bit different, but the basic fundamentals are, people in Congress get complacent and they push the envelope and they push the line, and that's what we saw here. And you might not see that change.

MS. IFILL: So if I went tonight on a tour of the K Street steakhouses and the skyboxes at the arenas downtown, would they all be empty because this is all now over?

MR. JAVERS: There's a Wizards game tonight, actually.

MS. IFILL: Yeah, let's go see. (Laughter.)

MR. JAVERS: That's right. But no, they're not going to be all empty. And of course the fundraising's got to continue. This is an election year. People need money to run these campaigns, so that's going to continue, but I've talked to a lot of lobbyists who say, well, I'm going to just sit back on my heels a little bit in terms of donations just in this early part of the year until I see how this all shakes out because I don't want to be accused of being the next Jack Abramoff. He's being held up as the poster-boy for bad behavior here in Washington. So yes and no.

MS. GREENHOUSE: Eamon, talk about fundraising. I mean, isn't one of the issues here that the culture of Congress is that at least as far as the House is concerned everything is a safe seat? I mean, there's just a handful of seats that are really competitive and I just wonder if that kind of feeds into the kind of complacency and the sort of falling into this pattern time and time again. They're not really accountable.

MR. JAVERS: Absolutely. I mean, it's the rare member of Congress who actually gets tossed out of his seat or her seat these days. And one of the things we saw this week with the Democratic event where they had their plan is it had many of the overtones, politically, of the Republican Contract with America back in 1994 where they were signing a document saying, we're going to return ethics to Washington. And for the Republicans, that had a huge political impact. They took over the majority back after the '94 elections.

For the Democrats now, though, that's the exact difference is that a lot of the seats have been gerrymandered to be much safer than they were in 1994, and the challenge Democrats will have to get the same kind of bounce out of their document signing is just that, that it's much harder for them to take these seats back.

MS. TUMULTY: Well, so they're talking about gift bans. They're talking about getting away - ending these things where the lobbyists can take you on a trip around the world to the best golf courses in the world. Are there any things that they get from lobbyists that they're not going to touch - that they like so much that they'd just as soon keep on doing it?

MR. JAVERS: Yeah, well, both of these plans leave a giant sort of unanswered question, which is what are they going to do about campaign financing. I talked to a lobbyist this week who said, look, they're going to ban me from taking a staffer out for a $10 lunch on Capitol Hill, but I can still have lunch with Nancy Pelosi if I want to. I just have to pay her $2,000 to do it. So -

MS. IFILL: As a campaign contribution?

MR. JAVERS: As a fundraiser. The whole process of raising money and spending it is not going to change, according to these plans that were put out this week. And so that raises the big question of what do you do about campaign finance, and there doesn't seem to be a whole lot of momentum politically among anybody to do anything about that this year.

MS. CONNOLLY: I was at a healthcare event earlier today and one person stood up and said, well, I'm one of those people in town who doesn't want to be seen right now. And I said, oh, you're a lobbyist. (Laughter.) But they must be sort of quietly grumbling to you about some of this. What's their perspective on it all?

MR. JAVERS: Well, there's two. There's a public face and there's a private face. Publically, I was at a luncheon yesterday sponsored by the Business Roundtable where the line was, you know, we're the lobbyists; they're the members of Congress. They'll make the rules; we'll follow them. And I think that's what you're going to here from lobbyists around town as this process unfolds.

Privately, on the phone over coffee, they'll tell you something different, which is, hey, wait a second. We're being hung out to dry by these guys who are calling us all the time asking us for money.

MS. CONNOLLY: Shakedowns?

MR. JAVERS: And there's a real question of members of Congress who oversee some of these industries calling their lobbyists and saying, the fundraiser's on Tuesday guys. Lovely to see you there.

MS. IFILL: Ah, another story that is -

MR. JAVERS: Implicit story.

MS. IFILL: Yeah, another story that's never going to end. But thank you, Eamon. Thank you for joining us.

MR. JAVERS: Thank you.

MS. IFILL: Welcome to Washington Week.

Before we go, I have one more thing: if you've ever heard of the phrase, "everything's been said, but not everyone's said it," that's never true. As evidence, I present something to you for you to ponder and to write us about. What were they thinking? What was Senator Hillary Clinton thinking when she said this at a Martin Luther King, Jr., celebration?

SENATOR HILLARY CLINTON: Because when you look at the way the House of Representatives has been run, it has been run like a plantation, and you know what I'm talking about.

MS. IFILL: What was she talking about? And what was New Orleans Mayor Ray Nagin thinking when he said this that same day?

MAYOR RAY NAGIN: It's time for us to come together. It's time for us to rebuild a New Orleans, the one that should be a chocolate New Orleans. And I don't care what people are saying uptown or wherever they are, this city will be chocolate at the end of the day.

MS. IFILL: So, what were they thinking? Why don't you tell us what you think. Write to us at washingtonweek@pbs.org. And while you're online, sign up for our weekly Washington Week podcast. Then, every week you can download the show and special web features to your computer or MP2 player. Keep up with daily developments every night on the NewsHour, then join us again around the table next week on Washington Week. Good night.