The congressman who saw his bid to become President Trump’s drug czar torpedoed by a bombshell story about the nation’s opioid epidemic is on the comeback trail.
Rep. Tom Marino (R-Pa.) is facing a primary challenge against an opponent who plans to make drug legislation backed by the incumbent a key issue in the race.
{mosads}The bill at issue, the Ensuring Patient Access and Effective Drug Enforcement Act, passed Congress with little opposition in 2016 and was signed into law by then-President Obama.
The controversy surrounding Marino came in October 2017, after a Washington Post and “60 Minutes” joint investigation named him the legislation’s chief advocate and reported that the bill had made it harder for the Drug Enforcement Administration (DEA) to freeze suspicious drug shipments from companies, in the midst of an opioid crisis killing more Americans on an annual basis than traffic accidents. Faced with a storm of controversy, Marino withdrew his nomination to lead the White House Office of National Drug Control Policy.
As he seeks a fifth term in office, the incumbent is taking a page from President Trump’s playbook in arguing the media got it wrong in casting him as the villain.
“The legislation that they’re talking about is not mine,” Marino told The Hill in an interview last month.
He said he’s unfairly taking the blame for legislation he says was crafted to ensure patients were able to receive the drugs they need.
Marino, one of the first Congress members to endorse Trump, argues he has had a long career of protecting people from predatory dealers.
“All my career — 18 years as a prosecutor, as a district attorney in my state, a U.S. attorney — and as a congressman, I have fought hard to protect people, put the bad guys in jail: the drug dealers, the rapists, the child abusers,” Marino said in a second interview last week.
Before the legislation was approved by Congress, the DEA could freeze drug shipments to prevent “imminent danger to the public health and safety,” a relatively broad categorization.
The bill Obama signed into law required that to suspend a shipment, the DEA must establish a “substantial likelihood of an immediate threat that death, serious bodily harm or abuse of a controlled substance will occur” without the suspension.
The idea behind the legislation, says Marino and other co-sponsors, was to make the rules more clear while staunching complaints of an overly aggressive DEA so that drugs going to legitimate patients weren’t threatened.
He also says that the language requiring that the DEA establish a “substantial likelihood” of harm was actually added in the Senate. Marino’s bill defined “imminent danger” as posing “a present or foreseeable risk of adverse health consequences or death due to the abuse or misuse of the controlled substances.”
Marino said he had concerns about the change in wording.
“When it came back to us, I argued with my staff about the word ‘substantial,’” Marino said. “I said, ‘That is a much higher burden,’ and they said, ‘We can’t do anything about it, the Senate took your bill, it changed it, it’s their language, it’s what [the Department of Justice] wanted, and that’s what we’re stuck with.’”
Sen. Orrin Hatch (R-Utah), who introduced the bill in the Senate, said the language in question came from lawyers with the DEA and Justice Department.
“So let’s get this straight: Congress took language that DEA and DOJ wrote, inserted it in the bill, and now Congress is the bad guy?” Hatch said in an October floor speech.
The Justice Department declined to comment on the origin of the language. Neither the department nor DEA opposed the language at the time it passed Congress.
But Joseph Rannazzisi, a DEA official who headed its Office of Diversion Control, says both the House and Senate versions were bad.
Rannazzisi, who appeared on-camera in the “60 Minutes” report, blames Marino and other co-sponsors of the bill for pushing it forward, and says in 2014 and 2015, he and others had expressed concerns to Congress that the bill could severely hamper the DEA. He argues the bill was essentially a gift to the drug industry.
“I have no pity for any of them,” Rannazzisi — who argues the new law should be repealed and now works as a consultant for a team of lawyers suing the opioid industry — told The Hill.
The Republican running against Marino in the primary — the first such challenger Marino has faced in the Trump country seat since 2010 — says Marino should have done better.
“I’ve sat in the living rooms of friends and family who have lost loved ones to this tragic addiction,” Bradford County Commissioner Doug McLinko writes in a statement on his website.
“I’m a loyal Republican, but after watching the 60 Minutes episode and hearing from families across the district, it is obvious Tom Marino puts the interests of campaign contributors ahead of the health and safety of his constituents,” it continues.
Marino called the statement on McLinko’s website a “cheap campaign shot” last week and had expressed confidence he’ll win a fifth term.
“I’m a hell of a campaigner, and I run like I’m 10 points behind until the day after the election,” he said. “And I will win.”
Unseating Marino in the May 15 primary could prove a tough task.
“At 30,000 feet, I think Marino’s in a little bit of trouble, but closer to the ground, not so much because of the advantage of incumbency,” Charlie Gerow, a Pennsylvania Republican strategist, said. He noted the district is large and sprawling, making it a “daunting challenge” for a candidate to make the right contacts and even to introduce themselves to voters.
“What actually occurred, I don’t know that that’s going to translate into a big issue with the average voter in the 10th District,” said G. Terry Madonna, the director of the Center for Politics and Public Affairs at Franklin and Marshall College.
Marino has just $112,500 in his campaign account as of Sept. 30, likely a result of his expected shift to the administration and lack of primary opponent until late in the year. But it’ll likely take a very well funded effort to rip Marino from his district.
McLinko, who announced his candidacy late last year, will file his first fundraising report at the end of the month. He told The Hill that the campaign has done about two weeks of fundraising efforts, and estimated it yielded about $40,000 in individual contributions.
He acknowledges the challenge of beating an incumbent but says he’s up to the task.
“Is it going to be easy? No. But when people cast their vote, I think they should just really think about what this guy has done, his record,” he said.
While McLinko looks to make opioids an issue in the Pennsylvania race, lawmakers are looking at altering the 2016 law.
The DEA now supports a change, but it has taken a cautious line publicly in talking about whether the legislation has hampered its activities and how it should be changed.
In December testimony before the Senate Judiciary Committee, Demetra Ashley, the acting assistant administrator of the DEA’s Diversion Control Division, said the law did not completely eliminate its authority to issue immediate suspension orders but changes the way it goes about doing so.
“The current legislation requires that we establish a substantial likelihood of immediate death, bodily harm and abuse. Prior to that, we would only need to establish the increased potential for diversion,” she said.
Demetra said the 2016 provision “does not stop us from doing our job; we find a way.”
Meanwhile, the DEA chief administrative law judge, John Mulrooney II, argued in a law review article that the law “imposed a dramatic diminution of the Agency’s authority to issue immediate suspension orders.”
Marino, for his part, is proposing that the critical part of the law be changed back to his language from the House bill.