By Joshua C. Huder
Recently, the Washington Post and CBS teamed up on an investigation that has now cost Congressman Tom Marino (R-PA) his nomination as the next Drug Czar. It is an incredible report, deeply sourced, with amazing details on how industry worked with Congress to gut DEA’s ability to prosecute drug trafficking abuses and deepened a horrific opioid epidemic in the U.S.
Many watchers have already latched on to the financial ties between industry and government. However, as troubling as they may be, it appears no laws were broken. No bribes were reported. Campaign contributions appear to conform to the letter of the law. Yet something feels clearly corrupt in this story. Which brings us to why the report is devastating on another front: it is a stunning display of institutional incompetence.
Congress as an institution, in a bipartisan fashion, both professionally and politically, failed. And its failure illustrates by far the most common form of influence in today’s Congress. This was not a case where 535 members of Congress were corrupted by a few thousand dollars of campaign contributions. This was a case where 535 members and their staffs didn’t know any better. This investigation did not uncover a crime; it exposed an institution in decline. Congress, in this instance, was unable to prevent the worsening of a national crisis because it didn’t know what it was doing.
The bill at the heart of the investigation is not a major bill. It is short and obscure. If you read it, you would likely have no clue what it does. And it’s a perfect example of where lobbying has the greatest influence.
Contrary to popular belief, lobbyists often do not have their biggest impact on major legislation. The intense scrutiny major legislation receives and the rich information environment in which it is debated means much more competition for lobbyists trying to affect legislation. Multiple studies illustrate that Congress is not a vending machine: money in does not necessarily equal results out. So while lobbyists have an impact on major legislation, it is not often where the lobbying industry thrives. Instead, complex, low-salience issues are where lobbyists wield the most potent influence.
These minor bills comprise the overwhelming bulk of legislation Congress passes each year. Most of their work is on issues you’ve likely never heard of: removing restrictions on land transfers; improving services for older youth in foster care; increasing helium reserves at hospitals. These obscure and generally uncontroversial bills rarely make national headlines but take up the lion's share of Congress’s time.
This was true -- until a few days ago -- of the law that was the subject of the WaPo/CBS investigation. The bill was obscure when Congress passed it, and it remained so when President Obama signed it into law. Unless you have intimate knowledge of the authorizing statutes for the Drug Enforcement Agency, the internal mechanisms of the Department of Justice, and the Controlled Substances Act, you probably had no clue what this bill did. And that’s the point.
One of the investigation’s key characters is Linden Barber, a former DEA official who was the top lawyer at the Office of Diversion Control, which is charged with litigating abuses from industry and distributors. Barber left government for a better paying job in the private sector. Ultimately, he became a lobbyist that pushed the idea for legislation on Capitol Hill, finding champions for a bill that would weaken his former office’s ability to enforce the law.
The revolving door is nothing new to federal government, and it’s a fact of life on Capitol Hill. Staff and federal officials frequently leave government for the private sector, bringing with them deep expertise and valuable insider knowledge. This gives former government officials critical information advantages and can enable them to maneuver easily on complex issues most people do not understand.
But this was more than just a case of prior experience giving a lobbyist a leg up. This was a situation where expertise in the private sector far outweighed the expertise in either chamber of Congress, laying bare a knowledge gap between the two that many fear is widening.
The way this bill passed illustrates exactly how large - and how dangerous - this knowledge gap has become.
Voice Vote and Unanimous Consent
The one piece of this investigation that should stick out like a sore thumb is the process through which this bill became law.
In the House, the bill was passed under Suspension of the Rules. This is important for a couple of reasons. Suspension of the Rules is a process used for non-controversial legislation. Under this process, a bills is allowed only 40 minutes of debate and needs support from two-thirds of the chamber (normally 290) to pass, which in virtually every case means bipartisan support is required. This is a process explicitly created for non-controversial business that the House wants to dispense with quickly.
But H.R.471 from the 114th Congress is striking for another reason as well: it did not receive a recorded vote. In the House, it only takes one individual to ask for a recorded vote (seconded by 44) and once requested, it’s exceedingly rare not to get one. Yet in this instance, the bill raised so few flags that not a single person in the chamber asked for members’ votes to be recorded, and it passed by voice vote.
The Senate process was equally uncontested. The bill passed the Senate through unanimous consent, which, as its name suggests, requires the consent of all 100 senators. Even one senator’s objection would have prevented the bill from being passed this way. Further, it would have forced Majority Leader McConnell, R-KY, to spend a week of floor time debating DEA litigation enforcement, eating into time for other Senate business and making the decision to debate the bill much more costly for the Majority Leader. But in this case, no objection was heard.
Not one Republican or Democrat in either chamber raised their voice when the opportunity came. Committee staffs in the House and Senate, the in-house experts in their policy fields, either did not understand the consequences of the bill or failed to convince a single member that this bill had consequences that could limit enforcement of professional drug trafficking.
The State of Congress
The aftermath of the WaPo/CBS investigation will not be pretty. It will likely become this year’s Rorschach test in Washington dysfunction. Observers will see the faults and causes they want to: money in politics, the influence of the pharmaceutical industry, the lobbying industry writ large, brain drain in the executive branch, and any number of other culprits.
Corruption, or the appearance of it, will play a prominent role in this narrative. And while not illegal, this process certainly has the hallmarks of undue influence. However, corruption can’t explain institutional failure of this magnitude. Like any organization Congress has bad actors. But this opioid investigation is broader than just a few bad actors. Not every member of Congress is so ethically feeble that they can be swayed by hundreds of dollars in campaign donations. The overwhelming majority of members in both parties are strong-willed, upstanding individuals. Yet not one of them made an effort to even slow this bill.
The truth is Congress was outmatched by a smarter, better-financed opponent. No one in the institution grasped this bill’s impact, even in the midst of a crushing nationwide opioid epidemic. Not members, not their personal staffs, and not the committee staff regarded as the experts in their respective policy fields.
Here’s the thing: No one should be surprised. For decades Congress has gutted its own ability to do its work. It has cut money for staff. It has failed to update its infrastructure from technology to security. Put simply, the modern Congress has systematically stripped itself of the resources to properly govern. The results are predictable. On average, staffers in Congress are getting less experienced, less well paid, less knowledgeable, and have shorter tenures. Congress has become a place for staff to check a box on their resume and leave for more lucrative, less demanding opportunities. And unfortunately, the most experienced, longest-tenured staff are leaving in droves.
The impact on the institution has been devastating. Members and staff are less equipped to do their own work. They are less equipped to challenge lobbyists because they don’t know the right questions to ask. They are less equipped to exercise oversight of the executive branch because fewer and fewer of them know how it works. And as a result, they increasingly rely on lobbyists and government agencies to do their work for them. In this case, congressional staff were relying on DEA and DOJ to inform them of the bill’s impact. When DEA and DOJ failed to step up, there was nothing to check the bill’s progress. The days of congressional staff going toe-to-toe with executive agencies or outside influencers are increasingly endangered.
This is all reversible. But it requires Congress to boost spending on itself, and those votes tend to be unpopular. If you don’t want lobbyists writing your bills, then you need to pay staff better. If you don’t want executive agencies getting away with improper activity, you need to increase the resources at members’ disposal for robust oversight. If you want higher quality members, you need to increase their salaries, something that hasn’t happened in almost a decade. We will never balance the budget by cutting money from an institution that makes up 0.1% of the annual federal budget. There are some very smart, dedicated and capable public servants working in Congress but they need help.
Can Congress regain its ability to be America’s democratic heartbeat?
One of the most disturbing elements of the WaPo/CBS investigation is that it exposes an institution that is no longer a match for the pressures placed upon it. Congress is, and always has been, the sounding board of American democracy. Individuals, communities, regions, businesses, political, ethnic, and religious minorities all come to Congress with a voice. Congress was established as the First Branch to ensure those voices were heard at the highest levels of our government. But Congress must also be equipped to put those voices in proper perspective. And right now, it is clear that the balance is out of whack. Congress is being overrun.
American democracy requires investment, too. And until that sinks in with members and their constituents, the outside interests they frequently lament will continue to have an increasingly outsized role in our government.
As a voter, as a taxpayer, and as a citizen, that should bother you.
Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute at Georgetown University.