Where’s Congress? Don’t Just Blame Trump for the Coronavirus Catastrophe

Polarization and concentration of power on Capitol Hill, combined with self-inflicted loss of supporting expertise, keep Congress from holding executive agencies accountable for their poor pandemic response performance.

How in the world did it happen? The United States has the highest rating in the world on the Global Health Security Index, which assesses prevention, capacity for detection, preparedness and planning, resources for health care, and other aspects of responding to health threats. The Centers for Disease Control and Prevention (CDC) is home to the foremost public health training program, the Epidemic Intelligence Service, and may well have the highest density of expertise in infectious disease the world has ever known. The Food and Drug Administration has long been the world model for regulating health goods and services. The nation had forewarning from its health experts and intelligence services as a pandemic gestated in China and then southern Europe. Yet the United States now faces the largest challenge from—and has mounted one of the worst-managed responses to—the coronavirus pandemic in the developed world.

The explanation cannot be insufficient scientific or medical expertise, nor lack of familiarity with managing global infectious disease. US experts have been among the world’s leaders in dealing with HIV/AIDS, Ebola, Legionnaire’s, SARS, MERS, measles, polio, and influenza. What, then, explains the government’s ineffectual response to the coronavirus outbreak, especially in its crucial early days? What caused a multitrillion-dollar catastrophe that will consume tens to hundreds of thousands of lives worldwide? Although there is likely plenty of blame to go around, our aim here is not to point fingers but to highlight the need to understand what went wrong so the nation can make sure it can never happen again. And our particular focus is on what Congress needs to do differently to assure the nation’s safety in the future.

Why was America’s political system unable to take advantage of its unparalleled national expertise to act effectively to slow or stop the pandemic? In our view, this failure to turn knowledge into action is symptomatic of a deeper political pathology: an increasing concentration of power fomented by both political parties, pushing resources toward the top in “leadership” positions. Perhaps counterintuitively, the increasing concentration of power has diminished the ability of expertise to penetrate into governmental institutions and influence their policy priorities and implementation. We are particularly concerned about the diminished role of Congress, the “first branch” of government, and its self-inflicted incapacity to absorb information about science, technology, and medicine.

By necessity, the executive branch had to drive the government’s initial response to coronavirus. The executive branch is the main repository of expertise, and executive agencies such as the CDC, the FDA, and the Department of Health and Human Services (including the National Institutes of Health) are authorized by Congress to spend the money it appropriates and to carry out government work in meeting the needs of the nation. So, the first-order failure is in the executive branch.

President Trump’s happy talk about the pandemic did not help matters, nor did the lack of coordination among and infighting within executive agencies as the crisis unfolded. More egregiously, the diagnostic tests developed by the CDC proved faulty, and there were far too few of them, making it impossible to detect the earliest indicators of the tsunami approaching from offshore. Meanwhile, the FDA regulations—and its misjudgment of the need for cheap and plentiful testing—initially hampered nongovernmental labs from developing and repurposing their own diagnostic tests. The United States has the greatest capacity for molecular detection in the world, with a rich ecosystem of diagnostic firms of all sizes and types, but it was paralyzed for a crucial month. Because of these mistakes, the nation could not begin testing at scale until the virus was already widespread due to undetected community transmission, which in turn limited the ability to understand its nature and scope and forced government to abandon containment and focus instead on mitigation. The nation has yet to catch up.

Such failures—and an unwillingness on the part of some people and groups, including FDA, to acknowledge their mishandling of testing—point to a debilitating institutional weakness in the federal government today: Congress’s severely diminished capacity to oversee and hold accountable the executive agencies of government. Gradually over the past four or more decades, the executive branch, rather than Congress, has taken the lead in setting public policy, especially when it comes to science, technology, and medicine. And this is because executive agencies (again in contrast to Congress) possess the requisite technical expertise. Although such delegation is surely necessary to some degree, especially during a national emergency, it is Congress, not the executive, that is charged by the Constitution with creating laws and overseeing the agencies that implement and interpret them, including CDC and FDA.

The coronavirus pandemic was exacerbated by uncertainty over regulation of molecular diagnostic testing. The policy debate about that regulation illustrates the give-and-take between Congress and the executive branch. It shows not only the current penchant for deference to executive authority but also the possibility of restoring a capacity for stronger congressional oversight. Consider that the FDA regulations that delayed testing were the result of the broad discretion granted FDA by a 2004 law, the BioShield Act, passed by Congress and signed by President George W. Bush. And now FDA’s role in regulating diagnostic technologies is again being debated in Congress. On March 5, Representatives Diana DeGette (D-CO) and Larry Bucshon (R-IN) introduced the Verifying Accurate, Leading-edge IVCT Development (VALID) Act, which addresses molecular diagnostics, including the kind deployed for coronavirus detection. It is a rewrite of a bill that failed to pass in the last Congress. The rewrite was influenced by an FDA white paper, and FDA’s heavy hand in that rewrite is one reason for sharp pushback. Senator Rand Paul introduced an alternative bill that explicitly removes FDA jurisdiction entirely, specifying “no aspects of laboratory-developed testing procedures shall be regulated under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), including during a public health emergency declared under section 319 of the Public Health Service Act (42 U.S.C. 247d).”

There is clearly disagreement within Congress about FDA’s proper role. This could set the stage for a systematic policy review, but that will depend on Congress having the capacity for understanding the complexities of molecular laboratory testing. Where will it get that expertise, beyond the direct stakeholders themselves? Industry representatives have their own policy preferences. FDA’s approach is embodied in a draft bipartisan bill, but until FDA acknowledges the consequences of its decisions in January and February and how such problems can be avoided in the future, its credibility is suspect. Here is the problem of Congress’s weak technical expertise in microcosm: Congress is contending with a high-stakes technical problem that is exquisitely sensitive to regulatory policy, and the main players advising Congress are the industry being regulated and the regulatory agency that has egg on its face—but hasn’t admitted it yet.

Ceding congressional authority to executive agencies has become the norm in modern times in part because Congress simply lacks the requisite expertise to provide guidance or oversight. It may be unrealistic to imagine that Congress could fully reclaim its lawmaking power, and undesirable in the midst of the current public health crisis. But it is hardly unrealistic and surely desirable for Congress to be able to conduct independent oversight of the agencies to which such power is delegated—including those that have been on the front lines of combatting the coronavirus. After the nation is on the other side of this crisis, Congress will need to develop a capacity for expertise in science, technology, and medicine in order to determine what went wrong.

The decline of technical expertise in Congress was not inevitable, but was instead the direct result of policy choices going back decades. Since the Gingrich Revolution of 1994 and its Contract with America, the Government Accountability Office (GAO) staff dropped by 40%, while the Congressional Research Service had its sharpest staffing drop in 1995 and has steadily dwindled since, from 900 people in 1985 to 650 today. The Office of Technology Assessment, created in 1972 to provide scientific and technology advice for Congress (in part to counterbalance the executive agencies’ virtual monopoly on technical expertise), was defunded entirely and shuttered in 1995. And in congressional offices, although there have been staff reductions—especially in agencies and committees with science and technology jurisdiction—staffing has increased elsewhere, including the “leadership” offices of the House, which have more than doubled between 1995 and 2016. These staffing changes parallel dynamics felt throughout Capitol Hill: a transfer of power from committees and personal offices to the leadership, especially the Speaker of the House and the Senate Majority Leader. And as power has been sucked to the top, knowledge has drained out the bottom.

In its congressionally mandated report released in November 2019, the National Academy for Public Administration directly addressed Congress’s weak capacity for absorbing technical information. As the report noted, “A significant driver of Congress’ S&T [science and technology] capacity deficiencies stem from poor absorptive capacity and technical literacy, which is compounded by some supply gaps.” The United States has technical expertise in spades, but technical knowledge is unable to penetrate into the country’s principal legislative body and its priority-setting procedures. The channels of technical information that should flow into and through the most democratic branch of government have become clogged.

Meanwhile, the concentration of power in only a few hands means that generalists whose foremost concerns are about positioning themselves to exercise power and win the next election for their party set the priorities, at the cost of the decentralized power that cultivates expertise in specific policy domains, and links policy-making to distributed knowledge.

What might have been different about the government’s response to coronavirus had Congress been better equipped with expertise—if, say, OTA were still working, the GAO were fully staffed, the committees of jurisdiction had the requisite staffing, and committees with capacity for expert oversight wielded more power?

For one, there would have been an OTA report on pandemic preparedness, in the wake of SARS, MERS, and Ebola. It is true that there was a Johns Hopkins University “war game” and reports within the executive branch that identified the problems and made recommendations. What would be so different about OTA’s involvement? OTA reports had at least three distinguishing characteristics that may have proved useful. First, they were tailored to meet congressional priorities and needs, meaning that Congress’s access to the relevant information was not tied to executive branch priorities.

Second, OTA reports employed a distinctive methodology that would have been well-suited for a multisectoral problem such as the current one. The reports were cross-disciplinary by nature, developed on the basis of a wide range of methodological approaches—quantitative, qualitative, political, ethical—from across scientific and other disciplines. They surveyed the points of view of the spectrum of stakeholders, including private-sector entities. And they did not make direct policy recommendations, but aimed to give legislators the information they needed to make decisions and understand and weigh the trade-offs among those choices. Although such reports would by no means be a panacea, policy-makers currently facing difficult choices about if and how to weigh public health risks vs. economic impacts vs. civil liberties would benefit from having such a disinterested analysis in their tool kit.

Third, an OTA report would have been public and peer-reviewed, its production transparent, and available not just to Congress and executive agencies but to anyone with an internet connection or access to a library. As it happened, the reports on pandemic preparedness that were on hand were buried in the executive branch and policy wonk world, and surfaced only weeks into the coronavirus conflagration.

There were tools for averting the crisis. In 2003, the Institute of Medicine released a report of a study cochaired by Margaret Hamburg (who later became New York Health Commissioner and FDA Commissioner) and Joshua Lederberg (the visionary Nobel laureate who died in 2008) that laid out the problems and made recommendations about global surveillance, fostering preparedness, and advancing detection and surveillance technologies. It was specific about the role of federal agencies, including FDA, CDC, NIH, the Federal Emergency Management Agency, and the Department of Defense, among others. Yet the report sat on a shelf, cited during outbreaks but not serving as a fulcrum for consistent oversight by Congress or stable implementation in the executive branch. Where were the congressional champions who might have advanced its recommendations and developed the requisite expertise?

And what about the Government Accountability Office? In recent years, Congress has in fact supported a significant increase in scientific and technical expertise at that agency. But GAO’s agenda depends in large part on the power structures in Congress to request it to do work, and to respond to its findings. With power concentrated at the top, the priorities of congressional leadership become the priorities of GAO. No longer is GAO’s work principally driven by the decentralized system of powerful committee chairs and ranking minority members of past decades, who had their own policy agendas, and could use GAO as a tool to monitor the executive branch. Had Congress been better supported by expert staffers, and had GAO still been playing its former role in supporting a diverse set of congressional leaders, the two might have worked together to play a more active role in sussing out and perhaps even preventing mistakes in real time, for example with committees of jurisdiction commissioning GAO to investigate the executive branch’s activities.

If it is too late to redress the mistakes made so far, it is certainly not too early to be concerned about whether Congress has the technical and institutional ability to undertake (perhaps with significant support from GAO) the investigations necessary to prevent such failures in the future. These investigations will have to confront a daunting array of technical questions: How reliable were the executive branch’s pandemic simulations, and why were they ignored? Why did CDC botch its virus test kits and restrict use to case-confirmation—treating tests as an expensive and scarce resource—rather than exploiting the world’s largest laboratory ecosystem for surveillance and contact-tracing? The United States has unrivaled capacity for RT-PCR (reverse transcription polymerase chain reaction), a laboratory technique used for virus testing. This biotechnology is so widely available that US high schoolers use it in biology classes. South Korea and Germany used their testing far more effectively.

What went wrong in the United States? Why did FDA’s procedure for authorizing emergency use of diagnostic testing delay rather expedite testing, worsening the scarcity? Why did FDA refuse initial requests—including from excellent laboratories in Washington State—to enter the fray before the ability to trace contacts was overwhelmed? What information flowed—or did not flow—from public health officials on the ground to federal agencies, such as the Department of Health and Human Services, and thence to the White House and back? Was the problem bad information, an absence of information, inadvertent or deliberate impediments to transmitting information, or a failure to convert information into policy action?

Posing and answering these questions will surely have to wait until after the crisis has at least begun to dissipate. But for the policy postmortem to be meaningful, Congress’s committee chairs, ranking members, and their staff will need sufficient expertise to request, listen to, and digest the findings of its own investigations and those of GAO (and of relevant agencies’ inspectors general)—and then do something about it. That is unlikely to happen with power centered in each party’s tribal leadership. Effective action will require the receptors in Congress to be more focused on understanding the problems and preventing their recurrence than positioning for party dominance in the next election. Congress will need hearings to understand what happened, yes, but more important will be a capacity for foresight and independent assessment of the technical stakes and their social outcomes—a sophistication about science, technology, and medicine that has atrophied in the first branch of government.

Restoring Congress’s capacity to hold the executive branch accountable for its performance in the COVID-19 crisis—and thus, motivating improved preparedness for future pandemics—depends on strengthening the links between expertise and governance that Congress itself has weakened in past decades. Rebuilding this capacity for good governance will require power to be redistributed back to committee and personal staff, to link substance with expertise; it will require bolstering congressional support agencies; and it will demand less name-calling and more problem-solving.

To determine what went wrong and how to avoid repeating the mistakes in the future, it will not be enough simply to castigate the executive agencies that failed to rise to the occasion. Members of Congress will need to look inward as well. Congress, heal thyself.