Drug Price Controls Deserves the Full Constitutional Process

The odyssey of how the President tries to rescue some portion of the Build Back Better act continues. Now that he can’t get the votes for the scaled down version that was proposed a few weeks ago he is extracting one part of that scaled down version that he hopes can get the votes to pass. Unfortunately, that part is the drug price control proposal. This approach has been discussed a lot. . . how it would impact innovation, how it would reduce competition and impact access. You’ve heard me echo many of those feelings. As it is with any issue that has the ability to affect millions of lives, there’s been deafening rhetoric from both sides. It shouldn’t take long, if you go back and read some of my earlier blogs, to ascertain where I stand on government price controls on prescription drugs and why. I would like to step back a little from all the specific pros and cons of this proposed legislation and talk about the evolution of how our government works and how this evolution impacts each of us.

I think that the process of how we pass important legislation has evolved (or in my opinion devolved) to a point where those officials who we elect to represent us have less and less control over the final regulations that will ultimately have a huge affect on our lives. I offer some examples.

I was very involved in the issues and the impact of the Affordable Care Act (often called Obamacare). This law was passed in the short two-year window when the Democrats controlled both the House and the Senate. The House passed their version of the bill and sent it to the Senate for action. There were Senators, both Democrats and Republicans, who had concerns with some parts of the bill – the power of the Independent Payment Advisory Board (IPAB) and the lack of any tort reform, for instance. The Senate did make changes to the bill and some Senators still had misgivings because the changes they wanted, like the two highlighted above, were not included. These Senators were assured that those changes could be added when the House and Senate went to conference to resolve differences. But, in the interim, Sen. Ted Kennedy, a Democrat, died and was replaced by a Republican. Concerns arose that a new bill could not be passed out of the Senate. The House speaker and the President convinced the House members to vote to pass the Senate’s version of the bill without a conference. This action assured that it would be a very partisan law and that for over a decade the Republicans would work to try to repeal the law rather than working to improve it.

The Republicans were no better. An amendment to alter the powers of IPAB, a sore spot for many on both sides of the aisle, was voted out of subcommittee with votes from both parties with the assurance that this clean bill would pass both the House and the Senate. The Republicans, rather than accepting the clean bill, added amendments that lost the votes of the Democrats. They passed up the chance to improve the bill for purely partisan political reasons.

President Trump used the power of executive orders and regulations to pass significant changes to our healthcare system. One of these was rebates at the pharmacy counter. Some people thought that was a good idea, others thought it wasn’t. Either way it didn’t matter because as soon as President Biden took over, he rescinded the order.

The process of reconciliation was instituted to make it easier for Congress to pass legislation that dealt with finances and budgets. It isn’t subject to the filibuster and only needs a simple majority in the Senate rather than 60 votes. It is used often when one party controls Congress and the White House but doesn’t have a 60-vote majority in the Senate. The Build Back Better bill was submitted under the rules of reconciliation as are all of the latest trimmed down proposals.

In the last few weeks, as it was evident that Senator Manchin couldn’t agree with the climate change and tax portions of the bill, the Senate decided on a smaller version containing the drug price controls. This proposed legislation would also be submitted under the rules of reconciliation. President Biden then indicated that he, like those before him have done, would use executive orders and other regulations to accomplish those parts of the initial legislation that had been removed.

I hope you see the common theme in these illustrations. The normal process for our government to pass and enact laws that impact our lives has been altered. The party in power now has the tools and the precedent to circumvent the checks and balances prescribed in the constitution and single handedly implement healthcare changes with none of the compromise that has historically been the hall mark of passing legislation.

The price controls proposed in this slimmed down bill will have to be reviewed by the Senate parliamentarian to see if it fits the rules of reconciliation. This decision is subject to debate and even legal intervention. Presidential executive orders and directed changes in regulations is not the way basic parts of our healthcare should be changed. Is this how we want changes to our healthcare implemented, using a process that has no mention in the U.S. Constitution and can be canceled with a stroke of the pen when the other party inhabits the White House? Do we want to implement laws that affect almost all of us in a very basic way with a short cut process that is intended primarily for financial and budgetary actions? When legislation is a one-party creation, we miss the compromise and balance of a bipartisan approach. We also almost always lose the willingness of the excluded party to participate in later amendments to improve the law after it is enacted. We deserve the full checks and balances afforded in the Constitution to come into play, especially when the legislation may eliminate the discovery of medicine that may save my life or the lives of my family.

Both sides of this drug pricing legislation emphasize the impact this legislation will have on our lives. Don’t we deserve the full constitutional prescribed process and debate for something so important? Tell those who represent you in Congress that you think this important piece of legislation deserves the debate and process guaranteed in the Constitution.

Best, Thair