The First Amendment and Its Destructive Protection of Lobbying
During a House Oversight Committee hearing on May 11, 2021, Representative Katie Porter (D-CA) questioned AbbVie CEO, Richard Gonzalez, about rising pharmaceutical drug prices. Gonzalez claimed that the rising drug prices could largely be attributed to increased research and development (R&D) spending. Porter’s interrogation later proved that what was truly constituting soaring drug prices was increased stock buybacks and dividends that surmounted to $50 billion between 2003 and 2018, compared to $2.45 billion spent on R&D during the same period.
In September 2020, Porter questioned Celgene CEO, Mark Alles, about the cancer drug Revlimid that experienced a $548 price hike between 2005 and 2020. Accounting for inflation, Revlimid should cost $286. Its price-gouging was part of Alles’ ploy to enrich himself, admitting to personally receiving $500,000 in bonuses alone (not accounting for salary hikes) as a result, despite the drug not improving and remaining identical to what was manufactured in 2005.
Costlier drugs have made it more difficult for the ill and low-income to receive quality healthcare, in addition to making it more expensive for taxpayers who have to finance Medicare more. Despite this, lobbying laws and protections are at the forefront of enabling and, in many ways, encouraging such behavior, often in the spirit of free speech. While free speech is a basic tenet of American democracy, strict adherence to it has allowed rampant, corrupt, corporate lobbying that has undermined American democracy by overpowering public interest.
Lobbying is a nationally protected act by the First Amendment and the Lobbying Disclosure Act of 1995. While the word “lobbying” is not explicitly stated in the First Amendment, the right “to petition the Government for a redress of grievances” is. As such, lobbying, or individuals and groups pressuring government officials to enact certain policies, is legally protected. However, lobbying has increasingly become subject to the power of the dollar rather than the people’s voice, raising the question just how democratic of a practice lobbying is when it is increasingly skewed, highly concentrated, unfeasible, and detrimental for everyday Americans.
In 2020 alone, $3.49 billion were spent on lobbying. The prominent lobbying industries included: pharmaceuticals/health products ($306.23 million), electronics and equipment ($156.9 million), insurance ($151.85 million), and oil and gas ($110.69 million). At the top of the charts were firms like AbbVie. Wanting to protect a firm’s or entire industry’s profitability have often been primary motives for corporate lobbying.
Big pharma has lobbied against legislation that has sought to make healthcare more affordable by lowering prescription drug prices. In 2006, President George W. Bush’s Medicare Part D Plan gained support from Big Pharma under the condition that the Centers for Medicare and Medicaid Services (CMS) could not negotiate for lower drug prices. In 2009 and 2010, as part of President Barack Obama’s Patient Protection and Affordable Care Act, all provisions that would have otherwise regulated drug pricing were struck in order to gain Big Pharma’s support that was necessary in getting the legislation passed. As executive director of Families USA Ron Pollack explained, “We needed 60 votes in the Senate; we got 60. We needed 218 votes in the House; we got 219. Had structural changes to pharmaceutical pricing been in the bill, the Affordable Care Act would not have been enacted.”
Consequently, while other sectors of the healthcare industry became more regulated, Big Pharma went unscathed; high prices have repeatedly been a concern, with numerous failed attempts to reel in the problem. In 2015, Representative Elijah Cummings (D-MD) and Senator Bernie Sanders (I-VT) pushed for the Prescription Drug Affordability Act of 2015. After extensive lobbying by the Pharmaceutical Research and Manufacturers of America (PhRMA), Generic Pharmaceutical Association, AbbVie, GlaxoSmithKline, Amgen, and numerous other pharmaceutical firms, the bill never even came up for a Senate vote. During the 2016 presidential election, both candidate Donald Trump and Hillary Clinton proposed repealing a provision in a 2003 Medicare Part D program that did not allow pharmaceutical price negotiations. In 2017, Representative Peter Welch (D-VT) and Senator Amy Klobuchar (D-MN) introduced the Medicare Drug Price Negotiation Act (MDPNA) that had a similar fate to Cummings and Sanders’ 2015 bill.
Despite a 2019 survey by the Henry J. Kaiser Family Foundation showing that approximately 88 percent of the general American public is in favor of negotiating and lowering drug prices, public health policy has not steered in that direction. Big Pharma and their lobbying power is behind this—influencing public health policy and swaying Congressional actions. While the Lobbying Disclosure Act of 1995 was intended to mitigate this problem by requiring lobbyists to be government registered and prohibiting direct payments and gift-giving to buy public officials’ votes, lobbyists have increasingly and adversely continued to influence legislation. Loopholes remain in the Lobbying Disclosure Act, where lobbyists may not directly give money but can donate to a candidate’s campaign or political party, host luxurious events and dinners, and purchase plane tickets to important political trips. Even if these generous donations are not explicitly tied to a vote, certainly acting contrary to a lobbyist’s interests risks a public official losing significant funds for themselves, party, and activities.
It is no coincidence that the Affordable Care Act had no provisions against Big Pharma when Obama himself received $19,462,986 from healthcare lobbyists during his 2008 election campaign, $2.1 million that came directly from pharmaceutical and healthcare product companies. Many who voted in favor of the bill also had ties with Big Pharma, including Senators John Kerry (D-MA) and Chuck Schumer (D-NY). Those who voted against the bill, despite its missing pricing provisions, were recipients of Big Pharma lobbying money as well, including Senator Mitch McConnell (R-KY) who has received $1,123,499 from Big Pharma since 2007. More legislators have turned the tide in recent years, with increasing bipartisan concern about rising drug prices and the continued, growing presence of Big Pharma in Washington. In 2019, Speaker of the House Nancy Pelosi’s (D-CA) Lower Drug Costs Now Act passed the House largely under President Trump’s pressure and promise to lower drug prices for Americans. However, this bill was later stalled and forgotten in the Senate, largely because of the then Senate Majority Leader McConnell who obscured (and continues to) his allegiances to Big Pharma as his fight against “socialist price controls [that] will do a lot of left-wing damage to the healthcare system.”
Thus, Congress has repeatedly fallen short of resolving our dire healthcare system partly because of the deeply entrenched presence and influence of Big Pharma in Washington. The pharmaceutical industry is just one of many that displays the detrimental effects corporate lobbying can have on national policy and public interest. Big Pharma is lobbying for the sake of their protection even at the literal expense of people’s lives; yet, such behavior goes undeterred because the right “to petition the Government for a redress of grievances” has come to mean the right to buy the government for a redress of profitability. It is time that lawmakers re-evaluate our lobbying laws and desperately urge for reforms that prevent reckless, detrimental lobbying. So long as this is not done, any legislation that seeks to remedy the damaging effects of corporate America, whether in healthcare, tech, arms, etc., will prove futile if those consequences are beneficial to powerful corporations willing to lobby for their continuation. All the while, America’s representative democracy stands tarnished, having succumbed to the power of money rather than the will of the people.