Congress has primarily dealt with problems associated with advancing age by protecting elderly workers. The concept of mandatory retirement based on age as we know it today emerged in the U.S. in the early 20th century, with the first mandatory retirement policies for government workers and some corporate employees. These policies were intended to create more job opportunities for younger workers and to improve the efficiency of government and industry by removing older, less productive workers from the workforce. The Age Discrimination in Employment Act (ADEA) of 1967, which prohibits employment discrimination against individuals who are 40 years of age or older, phohibits employers to force workers to retire based solely on their age, many companies still have mandatory retirement policies in place, although certain positions or professions— such as airline pilots and federal judges. The legislation has been amended several times since it was enaced to provide additional protections for older workers who were being targeted for layoffs. And when an older worker does experience a decline in their cognitive and physical abilities, an employer is encouraged to find alternative ways of dealing with the situation short of termination but if an employer decides that an older worker is no longer able to perform their job, they must have evidence to support the decision. Except in the case of Congress, where there are no rules whatsoever. It is strictly up to the voters.
The problem goes way back to Federalist James Hillhouse of Connecticut, who served from 1796 to 1810, Kentucky’s Henry Clay and Pennsylvania’s Simon Cameron, each of whom lost his mind but kept serving in the Senate. William Blount (NC and then TN) was impeached and expelled in 1797 but not because he was senile per se but because he tried to sell Louisiana to the British. (Tennessee voters were as out of their minds then as they are today and they then elected Blount to the state Senate.) By the time Robert Byrd (D-WV) died in office, he was completely senile, as was Jesse Helms (R-NC) by the time he retired in 2003 at age 81. He died of dementia 5 years later.
By the time Strom Thurmond was persuaded to retire from the Senate in 2003— having served there since 1954, first as a Democrat and then as a Republican— he had reached the goal post of having been the only senator to reach the age of 100 while in office. He was also utterly senile and his full diapers often stunk up the chamber and had to be changed by his aides. One aide later said that for the last decade in the Senate, “Thurmond didn’t know if he was on foot or on horseback.” And everyone knew it— just as they do today with Dianne Feinstein. When Thurmond ran for reelection in 1996, it was a joke. He barely knew his name and even South Carolina voters had a tough time reelecting him. Thurmond did not have the ability to debate, so he didn’t. The 53.4% to 44.0% result was his closest ever.
Next month, Dianne Feinstein will turn 90. By the time I moved to San Francisco in the late 70s, she had been serving on the Board of Supervisors for nearly a decade— a classic DINO, far too conservative for the city. Harvey Milk, who I helped get elected to to same board, was a mentor and close friend of mine at the time. Hereally hated Feinstein— far more than he disliked Dan White, who eventually murdered him and Mayor George Moscone. After the assassinations, Feinstein, a trenchant homophobe who vetoed domestic partner legislation, was elected by the Board to become acting mayor and then ran as an incumbent. I supported Jello Biafra who came in 4th among 10 candidates. She survived a recall attempt in 1983 during her second term but she was really hated by San Francisco progressives and she was defeated in a bid to become governor in 1990. She spent her entire career in politics cheating, stealing and enriching herself.
By 2020, it was widely known that Feinstein was no longer mentally competent to occupy her office and that her staff was running the show. At the time, Jane Mayer reported that Feinstein’s “short-term memory has grown so poor that she often forgets she has been briefed on a topic, accusing her staff of failing to do so just after they have. They describe Feinstein as forgetting what she has said and getting upset when she can’t keep up. One aide to another senator described what he called a ‘Kabuki’ meeting in which Feinstein’s staff tried to steer her through a proposed piece of legislation that she protested was ‘just words’ which ‘make no sense.’ Feinstein’s staff has said that sometimes she seems herself, and other times unreachable. ‘The staff is in such a bad position,’ a former Senate aide who still has business in Congress said. ‘They have to defend her and make her seem normal.’”
The Senate is dysfunctional as an institution. Senile senators make it more so. Feinstein is only the most obvious and most recent example. Yesterday, Rolling Stone published an essay by Paul McLeod, Feinstein's Health Crisis Goes Back Farther than We Knew. “Staff for the high-ranking Democrat,” he wrote, “have for years had a system to keep her from walking the halls of Congress alone, sources tell Rolling Stone, 89, returned to Congress this week, ending an almost three-month medical absence that highlighted her advanced age and deteriorating health. But her decline, and the problems it entails for American democracy, date back farther and go deeper than has been publicly known.”
[I]n recent years Feinstein’s office had an on-call system— unbeknownst to Feinstein herself— to prevent the senator from ever walking around the Capitol on her own. At any given moment there was a staff member ready to jump up and stroll alongside the senator if she left her office, worried about what she’d say to reporters if left unsupervised. The system has been in place for years.
“They will not let her leave by herself, but she doesn’t even know it,” says Jamarcus Purley, a former staffer.
Senators juggle a heavy schedule of votes, hearings and meetings on a wide range of subjects. Momentary lapses and mixups about a topic are far from unheard of. But over the last several years, interviews with Feinstein devolved into confusion on a near-daily basis. A familiar pattern would emerge: Feinstein would make an unexpected stance on a bill or policy position, only for her staff to quickly follow up by email to correct the record. It got to the point where reporters would pause before rushing to publish an otherwise-newsworthy declaration because of the inevitability of staff reversing her statement.
Feinstein once notably seemed to forget she had relinquished her role as third in line to the presidency. As the longest-serving member of the majority, she would traditionally serve as president pro tempore, behind only the vice president and speaker of the House in the line of succession. Feinstein announced last October via a written statement she would voluntarily give up the title. But when asked about it three weeks later. The staffer quickly corrected the Senator.
It’s a sad career coda for a groundbreaking lawmaker, who has said she will retire when her term Feinstein joined the Senate in 1992 as the first female senator from California, accomplishing a series of firsts as she rose through the chamber’s ranks. As well as advancing landmark gun control and marriage equality laws, she became the first woman to lead the Senate’s intelligence panel in 2009. In 2017, became the first woman to chair the Judiciary Committee.
Feinstein is no longer in charge of the committee, but she still sits on it. And her absence deprived Democrats of their majority on the Judiciary Committee, meaning they lacked the votes to advance Biden’s judicial nominees. It also hampered the committee’s functioning as the faces an ethics crisis over Justice Clarence Thomas accepting luxury trips and personal favors from a Republican mega-donor. Majority Leader Chuck Schumer made the antiquated move of asking Republicans— led by Sen. Mitch McConnell to hand back control of the committee by letting Democrats appoint a temporary replacement to fill Feinstein’s seat. Republicans said no.
Feinstein’s office did not respond to a request for comment. Amid questions about her health last summer, Feinstein’s office released a statement saying she has had a hard time adjusting to the death of her husband but remains heavily engaged in legislating, including fighting to reauthorize the Violence Against Women Act, introducing the Respect For Marriage Act, and contributing to gun safety legislation. “I’ve remained committed to achieving results for my state and I would put my record up against anyone’s,” she said via the statement.
In April of last year, the San Francisco Chronicle reported that , bringing new scrutiny to the senator. But as her health struggles played out in public, behind the scenes, staff tried to uphold the illusion of a normal, functional office while she displayed clear signs of cognitive decline.
Purley described office meetings where an issue would be discussed for several minutes, only for Feinstein to bring up the same topic later in the same meeting. Senior staff would then run through the whole conversation again as if they were saying it for the first time, to the discomfort of everyone in the room except for Feinstein. Another witness corroborated this account.
Purley is a rare former staffer willing to speak on-the-record about Feinstein’s health. and was fired last February for failing to perform his duties. Purley, who is Black, said he was frustrated with the office and grieving the death of his father from Covid, and believes he was fired for saying on a staff call that Feinstein “cares more about her fucking dog than Black people.” His accounts of the office are supported by other sources.
One person who did not want to be named recounted Feinstein asking a staffer for a memo, then responding with bewilderment when the memo was turned in the next day. These issues are longstanding: last summer, almost a year ago, one person who had worked with her and asked not to be named said “her days are all bad days now.” Feinstein’s acuity gets worse as the day goes on, multiple people told Rolling Stone, and staff have long tried to avoid her having any engagements after mid-afternoon.
Purley said Feinstein’s office began noticeably restructuring around her mental limitations in 2019. He said that year formerly large staff meetings were cut down to only senior staff and people working on legislative issues. “Junior staff were making jokes about her cognitive decline. Interns were noticing it,” he said.
Feinstein’s return this week is a boon to Schumer. Though, as she still requires significant assistance and may not attend all votes and hearings. In a sign of a possible shift in the generational power balance, high-profile— if not high-ranking— Democrats such as Ro Khanna and have publicly called for Feinstein to step down. So far, she has refused.
Feinstein’s declining health is not just a political problem for Democrats, it’s a demonstration of how the advanced age of lawmakers can fray a representative democracy. California’s nearly 40 million residents have been without full representation in the Senate while Feinstein has been absent, and on the judiciary committee, the popular will that gave Democrats a majority has instead been reduced to a stalemate.
In a healthier political system, an incapacitated person may be gently removed from a role crucial to the governance of the nation. That’s harder to do in Washington, DC, which is designed to be run by the elderly. The seniority system in Congress ties old age to increased power, as young people are told to wait their turn. Incumbency comes with a higher profile and robust donor network. Leadership posts and committee chairs are often filled by people in their 70s and 80s who, by nature of their age and wealth, are disconnected from the problems facing broad swaths of the public.
Even in safe seats, there is a rigid reluctance among party leaders to force out an incumbent. It can take years to get to the House, years more to jump to the Senate, and several terms to become a committee chair or leadership member. As the saying goes, every senator looks in the mirror and sees a future president. No one with real power wants to set the precedent of phasing out politicians as they get older.
Feinstein is the oldest member of Congress, but lawmakers— and particularly senators— tend to be elderly. The average age of a United States senator , the same age we stop letting pilots fly commercial airlines for safety reasons. (The average member of the House of Representatives is a comparatively spritely 58.)
When a politician becomes incapacitated the job of governing falls to their staff. But having unknown, unelected employees making hugely important decisions is far from unique. In many offices, it’s the norm. Congress has taken the form of a gerontocracy, with predominantly-older politicians drawing the public’s attention while a class of young, underpaid people in their 20s and 30s work long hours to do the heavy lift of governing.
“Ultimately it is on the staff to analyze the legislation, gin up support for legislation, write the legislation, recommend votes on the legislation,” said one current senior staff member. “I have friends whose bosses literally don’t do any legislating, just whenever they’re heading to the floor to vote their LD [legislative director] prints out a piece of paper saying ‘here’s how you’re voting today.’”
The Senate has a minimum age– 30– but no maximum and no norms around removing a member when their skills decline. Feinstein’s situation is far from unprecedented. In fact, there is a recent parallel. One day in 2017, then-79-year-old Thad Cochran, Republican senator for Mississippi got lost on his way to the Senate chamber, which was less than 20 feet away. He veered down a hallway and his staffer had to corral him in the right direction. At the time Cochran was one of the most powerful men in the country. He chaired the Senate Appropriations Committee, a coveted and influential post in charge of writing the laws that allocate trillions of dollars in government spending. His jurisdiction was anything touched by government funding, which is to say practically everything.
But it was an open secret around Capitol Hill that Cochran was no longer able to function. His staff accompanied him everywhere so he did not get lost and basic interviews were beyond his capabilities. Eventually, in late 2017, Politico ran a story titled Frail and disoriented, Cochran says he’s not retiring. Six months later, Cochran retired.