If memory serves: The question of cognitive function in an aging Congress

Upon her recent return to Washington after a more-than two-month absence to recover from an illness, Sen. Dianne Feinstein (D-Calif.) explained to reporters that she had not in fact been away at all and had been working the whole time at the Capitol. The answer she provided runs contrary to the evidence; as a result, questioned have been raised about her cognitive abilities and fitness for work.

As a physician, I can’t confirm or refute a cognitive decline diagnosis without a formal examination. But the deeper question raised by this seemingly concerning exchange is, how do we determine fitness for duty in public life?

In my profession, I must first obtain an unrestricted medical license from a state medical board in the location I wish to practice. I must always maintain that license in good standing. I may fail to be granted a license if I have a criminal record or simply a complaint against me. Once granted, I may lose my license for the same reasons. I must pay a recurring licensing fee and am expected to participate in any education program the state medical board requires. I am required to participate in, at my own expense, verified continuing medical education. Once licensed, I still need a hospital to grant me practice privileges. I may be drug tested and could lose my privileges if I test positive for any drug deemed illegal in that state. I must get endorsements from other physicians who will attest to my character as part of my credentialling. I must do this every year for the duration of my career.

Many industries require a variety of qualifications to be deemed fit for work. The simple granting of a license is a safety barrier for things as seemingly disparate as driving a car and cutting hair. Airline pilots are restricted to work for a specific number of hours before a mandatory rest. This so called “duty day” is intended to replenish cognitive reflexes naturally lost by prolonged wakefulness. The Federal Motor Carrier Safety Administration (FMCSA) requires long-haul drivers to have a negative drug test before granting a commercial driver’s license and may retest any license holder randomly, for reasonable suspicion, for return-to-duty, or as a follow-up after a positive test.

To be elected to the U.S. House of Representatives, a person must be at least 25 years of age, be a U.S. citizen for at least seven years, and reside in the state they represent. That’s it.

To be elected to the U.S. Senate, the requirements are more stringent. A person must be at least 30 years of age, be a U.S. citizen for at least nine years, and reside in the state they represent.

Unlike the presidency, no term limits exist for lawmakers, and a person may serve at the pleasure of the electorate in perpetuity. Government is for the people, and the rather lax job requirements likely reflect a desire to allow for as broad a group of people with political service ambition as desired. Recurrent elections are intended to act as a sort of license renewal. In theory, an informed public should be able to discern the qualified from the unqualified.

As a formal congressional job description is lacking, we can imagine one. We should expect our politicians to be able to function, as a basic requirement, as normal citizens. This may include paying taxes, not breaking the law, being honest and trustworthy. Some degree of education would be beneficial. Approximately 40 percent of the current House has a law degree, and almost 60 percent of the Senate. As Congress makes law, it would seem a reasonable requirement, though a law degree may be costly to obtain and not necessary to learn the task of lawmaking.

These are the things simply to get past the front door, but when we think about truly being fit for duty, we need to dig deeper.

Roughly 20 percent of U.S. citizens are receiving mental health treatment at any time. Roughly 16 percent take prescription medication for mental health and about 10 percent receive counseling or therapy from a mental health professional. Approximately 1.7 percent of Americans take antipsychotic medication. This medication is not exclusively prescribed for psychosis, but it has a non-trivial effect on thinking and reasoning. Broadly, mental health care aspires to return people to a state of mental balance, but from a pharmacological perspective, the major medications for depression are strikingly ineffective and the side effects in all these medications are not trivial. If we assume, statistically, 1 percent of Congress is on antipsychotic medication, that represents five to six members. We may also estimate up to 100 members have mental health challenges.

People with mental health challenges can of course function well in society. Mental health is hidden from view and, unlike other more manifest diseases, the casual observer may notice nothing untoward. Certain disease states, in addition, may lead to mental health problems: cardiovascular disease, liver disease and kidney disease can also on occasion cause varying degrees of cognitive impairment. Congress consists of a range of Americans with no doubt a range of mental and physical health problems. Much of this is kept secret, but from the perspective of the electorate, the intersection of the private life of the public official warrants examination. 

In the U.S., drinking alcohol remains a common activity. Fully half of the adult US population reports drinking alcohol in the last 30 days. Approximately 17 percent of adults binge drink, by self report, and 6 percent are regular heavy drinkers. Is it possible, then, that at any time, maybe 20 to 30 members of Congress are drunk? The legal blood alcohol limit in the District of Columbia is 0.08 percent. It may take about four drinks consumed over two hours to reach that limit. It would be interesting to have breathalyzers on Capitol Hill, just to be sure all voting members are clear-headed.

In D.C., consumption of marijuana is not permitted in public places but permitted in the privacy of one’s home. After the Capitol Hill breathalyzer, we will just take some urine from each member to measure for the presence of marijuana, and just for thoroughness, opioids and cocaine. Clear-headedness is perhaps less common than imagined.

On a weekly basis, about 20 percent of the U.S. population consume the very common pain-killer acetaminophen. While acetaminophen is a reasonable pain-killer, it also reduces our empathy for the suffering of others. One wonders how many voting members might be addled by a blunting of empathy during roll call?

Separate from the cognitive function test is the more difficult character test. We might wish our congressional members would be free of the usual “isms” — racism, classism, sexism, ageism. We hope members of Congress are people of good moral character and are capable of reasoned discourse. We want our members to evolve, commensurate with the evolution and maturation of civil society. If our only concern for members of Congress was a memory test, we should be so lucky.

Sen. Feinstein may be shown to indeed have memory lapses. This is of course concerning but to focus on this exclusively among members of Congress is, frankly, political. Holding members of Congress accountable to both a cognitive and character test seems all together reasonable. Perhaps it’s time for Congress to be overseen by the Federal Motor Carrier Safety Administration.

Joel Zivot, MD, MA, JM, is associate professor of Anesthesiology and Surgery, Emory School of Medicine; former adjunct professor at the Emory School of Law; and senior fellow in the Emory Center for Ethics.