While everyone was watching as the president picked a fight with a pregnant mother last seen hugging the casket carrying the remains of her husband, Sgt. La David Johnson, killed in a mysterious ambush in Niger, members of Congress had cover to try and quietly redeem themselves.
They’d been exposed Sunday by The Washington Post and CBS’s 60 Minutes as pawns of the pharmaceutical industry. It took $100 million spent strategically by an army of lobbyists to manipulate Congress into weakening the power of the Drug Enforcement Agency and worsening the opioid crisis they profess to be so concerned about.
Who would do such a thing? In fairness to Congress, most of the lawmakers were duped, or inattentive; only a few knew what was afoot as the bill passed with little discussion and unanimous consent. But now that they do know, why isn’t every member rushing to reverse the damage caused by the blandly named Ensuring Patient Access and Effective Drug Enforcement Act which raised the standard of proof needed to intercept large shipments of pain pills to suspicious buyers. The crippling law is dissected in the winter issue of the Marquette University Law Review, where DEA Administrative Law Judge John J. Mulrooney writes: “If it had been the intent of Congress to completely eliminate the DEA’s ability to ever impose an immediate suspension on distributors or manufacturers, it would be difficult to conceive of a more effective vehicle for achieving that goal.”
This law got through Congress despite the consensus that opioid abuse is rampant and growing—64,000 died last year, more than the number of Americans who died in our wars in Vietnam and Iraq, combined—and much of that blame goes not to South American drug cartels but to American pharmaceutical companies who couldn’t resist the easy money to be made.
This week, only six senators stepped up to undo the harm and restore the DEA’s prior authority: Claire McCaskill, Joe Manchin, Maggie Hassan, Amy Klobuchar, Tammy Baldwin, and Kristin Gillibrand. Where are the others? There’s no remorse from the advocates of the bill: Rep. Tom Marino, who took in $100,000 from pharma, “a fine man,” Trump called him, withdrew his nomination to be drug czar, and Rep. Marsha Blackburn, now running for retiring Bob Corker’s seat in Tennessee, admitted under pressure that her effort might have caused “unintended consequences”—so much so that others are considering jumping in the race.
At Blackburn and Marino’s behest, former DEA agent Joseph Rannazzisi, who opposed their bill, was investigated by a government watchdog group and was forced out of his job. He figured prominently in the 60 Minutes segment, cooly, persuasively warning that the drug industry has “an influence over Congress that has never been seen before.”
Only Senate Finance Chair Orrin Hatch, who has collected $177,000 from the drug industry, is loudly defending the bill. He compared the 60 Minutes piece to fiction on Netflix, and said of members and regulators that “if they had the concerns then that they are voicing now, they had an absolute responsibility… to prevent it from becoming law.”
Therein lies the devilish genius of the industry, which would make for a hit sequel to Netflix’s House of Cards. With $100 million to spend, the industry bided its time, carefully constructing its campaign so that those fighting the bill, like Rannazzisi, would be forced out of the DEA, while others were lured away by big paychecks from the industry so there would be few experts at the agency left to raise concerns. Unlike congressional staff who have to wait a year to lobby, DEA employees can spin through the revolving door at warp speed.
On the way out, lawyers can seed the ground for the private sector, convincing themselves that a benign industry trying to stop the pain should not be unduly regulated. Why should a pharmacy have to spend $100 on a safe to keep opioids secure? Why would you slow relief to patients in pain, they ask, which is somewhat persuasive if you ignore that three-quarters of those patients begin their addiction with a prescription and are unaware how quickly they can become dependent.
Jonathan Novak, a former DEA attorney, told CBS how former colleagues have “their fingerprints on memos and policy and emails going out where you see this concoction of what they might argue in the future.” Look at Linden Barber, a former associate chief counsel at DEA, now a senior vice president at Cardinal Health which pays fines rather than change its practices, who helped Marino craft the law in question. Under the new law they won’t even have fines.
By the time the bill came up after two years of gestation, when members called the DEA to get an opinion on the legislation, they got Captain Renault on the line swearing that there was no gambling in Casablanca. Thanks to the United States Congress, if you are a drug dealer in a hoodie on a street corner you will go to jail for selling a dime of drugs. If you host dinner in a tailored suit or wear a lab coat with your name stitched on the pocket, you can get wealthy selling massive amounts of narcotics with little fear of being caught.
There are few Second Acts in life but Congress could have one if it was willing to turn its back on Big Pharma. Most members, though, appear to think they can wait the storm out, with the normal coverage that would follow such a blockbuster revelation diverted to the president’s senseless fight with Gold Star families. What’s 20 minutes of gripping drama featuring greed, sloth, fancy meals, fine wine, and the swamp at its worst versus the sad spectacle of the president convincing his chief of staff to defend his treatment of the bereaved?
Cable can grind anything to dust by repetition but nothing can diminish the power of the picture of Myeshia Johnson draped across the coffin of the father of her children (or “that guy” as Donald Trump called him). Members of Congress shouldn’t get away with hiding behind her grief, but so far they are.