Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR RENEE JONES
Professor Jones, associate dean for academic affairs, teaches and writes on corporate and securities law, with a focus on the impact of enforcement practices on corporate ethics and integrity. She recently testified before a congressional subcommittee on the topic of “unicorns”—private companies valued at $1 billion or more—and the risks that lax oversight of these companies pose to American society.
When America faced crises in the past, how did business and government cooperate for the sake of the nation? Have you seen similar cooperation during the coronavirus pandemic? In previous crises, we have had a sense nationwide that “we’re all in this together,” with the government, corporations, and individual philanthropy working collaboratively to help the nation heal.
After the September 11 attacks in 2001, Wall Street and corporate America generally joined forces to raise money to aid everybody who suffered from the tragedy and to help rebuild New York City and other affected areas. Similarly, after Hurricane Katrina in 2005, the corporate sector increased its charitable giving in response to the devastation. During the 2008 financial crisis, government and business interests worked together to manage the economic recovery, to save American industries, salvage jobs, and help to stanch the economic hemorrhaging.
What stands out in this pandemic crisis is the lack of coordination between government and business interests and the lack of coordination between the federal government and the states. We’ve seen reports that, even before the coronavirus hit the US, certain businesses tried to connect with government agencies to work on the supply chain and begin manufacturing critical Personal Protective Equipment (PPE) in the United States. These efforts to work with government agencies to ramp up production ahead of the crisis were either ignored or rejected by federal officials. As a result, we just weren’t prepared, and we couldn’t get the PPE we needed from other countries, because, of course, those countries were also suffering from the crisis.
Similarly, there was reluctance by the executive branch to coordinate manufacturing of ventilators, to take command of the means of production to ensure that we had the critical supply of medical equipment. Not only were the states left to their own devices in terms of securing PPE, we actually saw the federal government, whether it was FEMA or some other agency, stepping in and interfering with states’ and hospitals’ efforts to secure the PPE they needed.
What do you think the impact has been of this failure of cooperation? Chaos. Unnecessary chaos.
You have noted that during this pandemic we have seen the exercise of craven self-interest at the expense of the greater good. Can you elaborate? Several examples come to mind. Senators Richard Burr and Kelly Loeffler reportedly traded stock while aware of information they obtained in private official briefings at the same time they were seeking to assure the public that coronavirus risks were minimal. The president promoted hydrochloroquine not in the interest of public health, but perhaps because of his allies’ business interests. Moncef Slaoui, a former pharmaceutical executive, was appointed to lead Operation Warp Speed, the government’s effort to find a novel coronavirus vaccine, despite his personal investments that raise conflict of interest concerns. We have seen large public corporations accept coronavirus relief funds [the paycheck protection program] that were meant to support small businesses, essentially exploiting ambiguities and loopholes in the coronavirus relief legislation.
What would the fixes be for this? What’s most important is the tone at the top. We have a president who has failed to disclose his own business interests and conflicts of interest. When the president is acting that way, it’s not so surprising that other government officials would adopt a similar attitude. We have not seen the typical impact of shaming that usually works to deter this kind of behavior. People seem to be following the actions of their leader and figure that they can get away with acting similarly.
How did federalism—the distribution of power among the federal government and the states—help us during this pandemic, and how did it fail? Conventional wisdom is that state and local governments are in the best position to understand and meet the needs of their citizens and to provide the direct services, with the federal government providing expertise and experience and the ability to marshal resources in ways that states cannot when acting alone. Many state and local governments are responding to the needs of their citizens, but they have looked in vain to the federal government for guidance and support and for help and resources that they can’t provide on their own. It’s that expertise, that coordination, that seamless provision of resources that’s been lacking, which has meant that our country is not responding in a competent way to the pandemic.
What fixes would you recommend to ensure that federalism is marshaled for the common good? Well, one fix would be a competent federal government, a competent federal bureaucracy.
What good do you hope comes out of this moment, where we are confronted not only with a pandemic, but also with protests forcing a new momentum toward social justice? What the pandemic has exposed very starkly are social inequities. The pandemic has disproportionally affected communities of color in this country, with devastating economic and health consequences. The exposure of that level of inequity is likely contributing to the protest movement in response to these tragic killings of African Americans at the hands of police across the country. I hope these protests will lead to some form of meaningful and lasting change.
Read all faculty Vision Project interviews here.