Senator Cory Booker (D-NJ)

When Cory Booker and twelve other Democrats engaged in what’s become an annual tradition of voting down what this year was SA 178, it drew an unusual response of outrage, in particular from progressives. Booker was accused of “being in the pocket of big pharm” and of “being a traitor” while many others took to twitter to denounce him and the other twelve Democrats. Unfortunately this outrage is misplaced, and a direct result of the left embracing as gospel anything Sanders says without applying a critical lens. I am guilty of this myself, and also was outraged at the Democratic votes against SA 178 until I delved more deeply into the issue.

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Booker attempted to address the issue in a statement:

“I support the importation of prescription drugs as a key part of a strategy to help control the skyrocketing cost of medications. Any plan to allow the importation of prescription medications should also include consumer protections that ensure foreign drugs meet American safety standards. I opposed an amendment put forward last night that didn’t meet this test. The rising cost of medications is a life-and-death issue for millions of Americans, which is why I also voted for amendments last night that bring drug prices down and protect Medicare’s prescription drug benefit. I‎’m committed to finding solutions that allow for prescription drug importation with adequate safety standards.”

His response was panned and often based on information from a widely shared article from New Republic newrepublic.com/...that portrays the “safety argument” as a disingenuous industry lie. But did Alex Shephard in his article really examine the basic facts, or give Booker the benefit of the doubt he deserves? Not only did he not do that, but he also did not provide any evidence to back up his audacious claims that connect Booker’s vote to him being under the sway of the pharmaceutical industry, and many of Booker’s other votes, including the SA 188, the vote immediately after SA 178 contradict that claim.

Let’s begin by gaining a larger understanding of the safety claim. Mike Enzi (R -WY) responded to the introduction of the amendment by giving some history:

Mr. President, this discussion will be a little different than any we have had because in a bipartisan way we have been defeating this for at least 14 years. Byron Dorgan used to head it up on that side, and I used to oppose it from this side, but it has always been bipartisan, and that is because we are not sure about the safety of the prescription drugs that come in online. People who drive over the border and go to a pharmacist are probably getting good drugs there, but we are told that for up to 85 percent of what comes in online, we can't tell what country it came from. So we can specify Canada, but it may be from another country altogether, particularly the Middle East. If we want to assure we have the safety of our drugs, being able to get it online from even Canada doesn't have the kind of assurance we need. We have always asked that the Secretary of Health and Human Services specify that the safety is in place. No one has been willing to do that. I ask that we vote against this amendment.

They actually have a very strong point. This is a budget appropriations bill and thus would not be able to give power for the FDA to regulate these imports. We are asked to believe that there is no concern, because coming from Canada these drugs would allegedly be subjected to the same safety standards as the U.S. and often be coming from the same factories, but this is largely untrue due to some of the regulatory peculiarities concerning how Canada exports drugs. Most importantly, drugs that are marked for export are not actually subject to ANY regulation by the Canadian government. That means any startup company could bring in drugs manufactured in countries with zero regulations, and then directly sell them without oversight from the Canadian government, to pharmacies and hospitals in the U.S. without any regulatory power from the FDA. laws-lois.justice.gc.ca/... This reveals the real and potential danger of this amendment, and also why someone like Senator Ted Cruz would be in favor of it. It undermines the FDA, which like any regulatory agency is not without it’s flaws, but which also undeniably plays an important role in maintaining a standard of safety in our prescription drugs. In the so-called “free market” frontier of a post-ACA world people who rely upon complex life saving medicines, hospitals would have an unmitigated ability to distribute medications without any oversight or obligation to disclose where they came from. This is about so much more than just ordering online prescriptions. When the article in The New Republic uses that comparison, it misses the mark completely. It also ignores the fact that there HAVE been problems with online prescriptions. news.vice.com/… or www.cnn.com/... Regardless of some of the dangers, Americans are able to currently order supplies of less than three months from online pharmacies, and the current policy of the FDA is to “look the other way”.

Allowing hospitals and other large institutions to purchase drugs without regulatory oversight or the obligation to disclose where those drugs came from, is not a progressive idea. Rather it is an idea that has enjoyed support over the years from many factions, with endorsements from notable figures such as Hillary Clinton and John McCain. The truth, is that it is nothing more than an optical band-aid for a problem that cannot be addressed under our current health care system. The reason why drugs are cheaper in Canada is because they have a single payer health system that negotiates the prices. In the U.S. we have a differential market system that provides ample opportunity for price gouging. When the “same companies” are manufacturing the drugs that go to both the U.S. and Canada, if large amounts of drugs start being re-imported, then the companies will just limit their exports to Canada. They already have done so in fact. hbr.org/...

Canada has not always in unison welcomed the idea of being America’s pharmacy. They already took steps on their own in 2005 to restrict the flow, properly pointing out that the solution to America’s health care is not to expect a country of 36 million to suddenly provide prescription medications for all of America. www.washingtonpost.com/…

At the heart of this, is the accusation that senators voting against this amendment are “afraid to stand up to big pharm” as Bernie Sanders stormed, or as the Shephard article in The New Republic attempts to prove, that financial incentives from “big pharm” are behind the nay votes. There are some huge errors in this logic, and in the very selected information (or lack thereof) we are presented. Much attention was drawn to pharm donations to Booker, but a lot of other convenient information was left out, but we can fill in the gaps.

First let’s look at Booker himself. Much attention has been drawn to the $233,750 Booker received from pharmaceutical donations to his campaign in 2014, which was an election year for him. Ed Markey (D-MA) was also up for reelection in 2014, and received $128,450 in pharm donations, but he voted YES on SA 178. But let’s look at the numbers for 2016, when Sanders was running for president. Bernie Sanders received the fourth highest amount of campaign contributions from big pharm in the senate, bringing in $146,641. Chuck Schumer (D-NY) received $144,905 in 2016, and he also voted YES on SA 178. Ted Cruz, (R-TX) received $101,667 in 2016 and was one of the Republican defectors who voted YES. John McCain, who ranks tenth in all time pharm contributions receiving $533,144 in his career, was another Republican defector who gave a YES vote. It should at least be a reasonable assumption that there is no correlation between pharmaceutical campaign support and granting a NO vote on SA 178. When presented with the information about Booker’s 2014 campaign contributions without context, it outraged me as well, but when presented with context, it becomes less impressive. Every senator has been given campaign contributions from the pharmaceutical industry; it varies year to year, and in this character attack they conveniently picked the year with Booker’s all time high. It certainly DOES drive home the worse than problematic way our campaigns are funded, but that is an obvious fact of the post Citizen’s United world. www.opensecrets.org/... It should then be noted that the very next vote went down like this:

Amendment No. 188 Mr. WYDEN. Mr. President, I call up amendment No. 188 and ask unanimous consent that it be reported by number. The PRESIDING OFFICER. Without objection, the clerk will report the amendment by number. The legislative clerk read as follows: The Senator from Oregon [Mr. Wyden] proposes an amendment numbered 188. The amendment is as follows: (Purpose: To create a point of order against legislation that does not lower drug prices) At the end of title IV, add the following: SEC. 4__. POINT OF ORDER AGAINST LEGISLATION THAT DOES NOT LOWER DRUG PRICES. (a) Findings.--The Senate finds the following: (1) Total annual drug spending in the United States is projected to reach more than $500,000,000,000 by 2018. (2) One out of five Americans age 19 to 64 cannot afford to fill their prescriptions. (3) Spending on prescription drugs in the United States grew by 12 percent in 2014, faster than in any year since 2002. (4) Medicare part D drug spending was $90,000,000,000 in 2015, and is expected to increase to $216,000,000,000 by 2025. (5) Medicare part B drug spending also more than doubled between 2005 and 2015, increasing from $9,000,000,000 in 2005 to $22,000,000,000 in 2015. (6) In 2014, prescription drug spending in Medicaid increased by 24 percent. (7) During the Presidential campaign, the President-elect said, ``When it comes time to negotiate the cost of drugs, we're going to negotiate like crazy, folks'' and his campaign website said that, ``allowing consumers access to imported, safe and dependable drugs from overseas will bring more options to consumers.''. (8) After being elected, the President-elect said, ``I'm going to bring down drug prices. I don't like what's happened with drug prices.''. (9) On January 11, 2017, the President-elect said, ``We have to create new bidding procedures for the drug industry, because they are getting away with murder.''. (b) Point of Order.--It shall not be in order in the Senate to consider a bill or joint resolution reported pursuant to section 2001 or 2002, or an amendment to, motion on, conference report on, or amendment between the Houses in relation to such a bill or joint resolution that does not, as promised by the President-elect, lower drug prices, as certified by the Congressional Budget Office. (c) Waiver and Appeal.--Subsection (b) may be waived or suspended in the Senate only by an affirmative vote of three- fifths of the Members, duly chosen and sworn. An affirmative vote of three-fifths of the Members of the Senate, duly chosen and sworn, shall be required to sustain an appeal of the ruling of the Chair on a point of order raised under subsection (b). Mr. WYDEN. Mr. President and colleagues, this amendment is supported by a number of Senators because, as the Senate majority plows ahead with a scheme that I call repeal and run, it is putting tens of millions of Americans in danger of losing their health insurance, and Americans are waiting for Congress to step up and adopt smart policies that will drive down the cost of prescription medicine. We understand this is an era of miracle cures and treatments. There are drugs on the market today that were science fiction not very long ago. With drug prices rising, the question is whether Americans are going to be able to afford them. This is a growing source of inequality, and it cannot go unchecked. Here is my bottom line. The PRESIDING OFFICER. The Senator's time has expired. Mr. WYDEN. In a country as rich and strong as ours, cures have to be available for everyone, not just the wealthy. I urge support for this amendment. The PRESIDING OFFICER. The Senator from Wyoming. Mr. ENZI. Mr. President, the Congressional Budget Act does require that the amendments to the budget resolution be germane. Since this amendment does not meet the standard required by budget law, a point of order would lie. So I raise a point of order against this amendment under section 305(b)(2) of the Congressional Budget Act of 1974. The PRESIDING OFFICER. The Senator from Oregon. Mr. WYDEN. Mr. President, pursuant to section 904 of the Congressional Budget Act of 1974, I move to waive section 305(b)(2) of that act for purposes of the pending amendment, and I ask for the yeas and nays. The PRESIDING OFFICER. Is there a sufficient second? There appears to be a sufficient second. The clerk will call the roll. The legislative clerk called the roll. Mr. CORNYN. The following Senator is necessarily absent: the Senator from Alabama (Mr. Sessions). Mr. DURBIN. I announce that the Senator from California (Mrs. Feinstein) is necessarily absent. The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote? The yeas and nays resulted--yeas 47, nays 51, as follows: [Rollcall Vote No. 21 Leg.] YEAS--47 Baldwin Bennet Blumenthal Booker Brown Cantwell Cardin Carper Casey Coons Cortez Masto Donnelly Duckworth Durbin Franken Gillibrand Harris Hassan Heinrich Heitkamp Hirono Kaine King Klobuchar Leahy Manchin Markey McCaskill Menendez Merkley Murphy Murray Nelson Peters Reed Sanders Schatz Schumer Shaheen Stabenow Tester Udall Van Hollen Warner Warren Whitehouse Wyden NAYS--51 Alexander Barrasso Blunt Boozman Burr Capito Cassidy Cochran Collins Corker Cornyn Cotton Crapo Cruz Daines Enzi Ernst Fischer Flake Gardner Graham Grassley Hatch Heller Hoeven Inhofe Isakson Johnson Kennedy Lankford Lee McCain McConnell Moran Murkowski Paul Perdue Portman Risch Roberts Rounds Rubio Sasse Scott Shelby Sullivan Thune Tillis Toomey Wicker Young NOT VOTING--2 Feinstein Sessions The PRESIDING OFFICER. On this vote, the yeas are 47, the nays are 51. Three-fifths of the Senators duly chosen and sworn not having voted in the affirmative, the motion is rejected. The point of order is sustained and the amendment falls. The Senator from Wyoming. Mr. ENZI. Mr. President, I ask unanimous consent that the Senate vote in relation to the following amendments in the order listed, with all other provisions of the previous order remaining in effect; further that there be no second-degree amendments in order to the amendments listed: Fischer 184, Gillibrand 82, Hatch 180, Brown 86; I further ask that the pending amendments, aside from these listed, be withdrawn; that no further amendments be in order, and that following disposition of the Brown amendment, the Senate vote on adoption of the resolution, as amended, if amended. [[Page S263]] The PRESIDING OFFICER. Without objection, it is so ordered. Mr. ENZI. Mr. President, I ask unanimous consent that the listed amendments be called up and reported by number. Mr. SCHUMER. Mr. President, will my friend from Wyoming yield for a question? Mr. ENZI. Sure. Mr. SCHUMER. Since the amendment by Senator Coons from Delaware is not going to be offered, I believe that the Hatch amendment was a side- by-side to Coons and we don't need that. Is that true? Mr. ENZI. Mr. President, I ask unanimous consent that my previous unanimous consent request be vitiated. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. ENZI. Mr. President, I ask unanimous consent that the Senate vote in relation to the following amendments in the order listed with all other provisions of the previous order remaining in effect; further, that there be no second-degree amendments in order to the amendments listed: That would be Fischer 184 and Gillibrand 82. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Nebraska.

If I were “big pharm” and had given money to Booker as a bribe, I wouldn’t be feeling that it was a good investment after his YES vote on SA 188.

Any honest review of the evidence over this controversy will demonstrate the attacks against Cory Booker and other Democrats that rightly stood up against this poorly thought out amendment, almost certainly knowing they would face negative blow-back from doing so, are quite baseless. This was not a typical Senate vote and did not follow a strict party ideology, except most likely in cases where senators felt their vote would be considered by their constituencies, and in spite of knowing how misguided the bill was, voted for it anyways. I’m also certain that others voted for it without having an actual grasp of the implications, and I have to question Bernie Sanders and his judgement on this. What Mr. Sanders, are you doing bringing a bad amendment into the news cycle to blot out coverage of the real travesty going on, which is the dismantling of the Affordable Care Act? Now misplaced anger is being levied against the Democrats, when they are trying to save the healthcare of 30 million Americans. What side are you on Senator Sanders? The only solution to making prescription drugs affordable in America is to either implement a single payer system, or to enact price control legislation. With neither of these happening any time soon, preserving as much of the ACA as possible is the best hope for Americans to continue receiving their life saving medication. The facts just don’t add up on SA 178. It has the potential to cause great harm, and does not actually offer a realistic solution to help anyone. Even if passed, it would do little to lower prescription drug prices, while potentially creating a new major public health crisis.

This isn’t the time for progressives to be getting into petty squabbles with each other over a misunderstanding that could have been avoided if people like Alex Shephard of The New Republic had actually done his homework, or the many well-intentioned people like myself that shared angry posts about Booker. We damaged the Democrats when they are the most vulnerable and facing an uphill battle to run damage control on the most regressive government in American history.