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Booker’s Drug Safety Excuse Doesn’t Add Up

Safety standards were never threatened by Klobachur-Sanders Amendment

Cory Booker and 12 other Democrats voted against a bill to import prescription drugs from Canada. His defense doesn't add up. (Credit: The City of Newark’s Office of Communications)

Last week, when the Senate voted on the annual budget resolutions, an amendment known as the Klobachur-Sanders amendment failed to pass in the Senate.  It seemed like an innocuous enough measure to allow people to lower their prescription drug prices in the U.S. through selective importation from Canada.  What was shocking was that despite getting the support of 12 republicans, 13 democrats voted against it and therefore it failed.   

No one received more heat for this vote than Senator Cory Booker, whose name has been floated around as a possible presidential candidate for the Democratic Party in 2020.

With all the lies and disinformation, it can be confusing, so let’s “Correct The Record,” so to speak.

Booker’s Responded To the Backlash and Defended His Vote

Booker issued the following statement to Jezebel defending his vote:

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.

In a subsequent tweet, Booker referred to his support of the Wyden Amendment as evidence for his support for lower drug prices, suggesting that the Wyden Amendment meets the “American safety standards” that he was calling for:

However, in this environment, it is important to understand what exactly they were voting for and what the Amendments really mean.

Booker Lied About the Wyden Amendment

Unfortunately, if one examines the Wyden Amendment, it’s not what Booker purports. If you look at the text of the Wyden Amendment, there are three sections as shown below: A section to highlight general facts about the Amendment, then a few points to embarrass the President-Elect and the Republicans before arriving at the actual section that states the language of the Amendment.

wyden-amendment

The language of the amendment provides for the following:

wyden-amendment-2

So as shown in the image above, the Wyden Amendment would establish a “point of order” if a senator brings forth a legislative measure that doesn’t lower drug prices. But to understand what this really means, we must understand what a “point of order” is in the first place.

What Is a Point of Order?

In the Senate, when a vote goes to the floor, a senator can raise a “point of order” or a complaint that the measure is violating a prescribed rule in the Senate.  For purposes of illustration, let’s say there is a hypothetical rule in the Senate that bars senators from voting if they wear a blue tie.

Rule 4357: Senators cannot vote on a bill if they wear a blue tie.

In our hypothetical scenario, suppose Senator A comes to the floor wearing a blue tie, another senator can raise a “point of order” by saying: “I raise a point of order that Senator A is in violation of Rule 4357 by wearing a blue tie.” The rules of the Senate allow for the Chair to respond with these three options:

  1. Sustain it
  2. Reject it
  3. Open it up for a vote

If the Chair sustains the Point of Order, it means that the Chair agrees that there is a violation, and may require compliance before putting it into a vote in front of the whole Senate. Generally, complying with points of order is non-trivial, and often they serve a more sinister purpose.  It can be used to delay a bill or even permanently pigeon-hole it.  For example, let’s say a few weeks before election day, a particularly controversial bill come to vote on the floor.  If a senator wants to avoid taking a position on the bill for whatever reason, they may raise a point of order on a “technicality,” quite similar to the hypothetical scenario mentioned earlier.  The Chair could then send the bill back to a committee or adjourn it for a few weeks until “compliance” with the point of order.  Given that there are many points of orders, it is possible to strategically delay certain bills for years.

Another strange procedural quirk is that once the Chair rules on the point of order, there is very little recourse for the other senator.  The senator may appeal the point of order.  Generally, when there is a point of order, there are rules prescribing how many votes are needed to “overrule” the Chair.

Explaining the Wyden Amendment

The Wyden Amendment prescribes a procedure for waiving and appealing a point of order that it raises.  If the Chair sustains the point of order, and an opposition member wants to appeal it, he will need the support of 60 senators.  Alternatively, in order to appeal the Chair’s ruling, you will also need 60 senators.

wyden-amendment-3

The practical effect of this scenario is that if a bill were to hypothetically violate the Wyden amendment (i.e. the bill does not lower drug prices), and the Chair agrees, the most likely scenario is that it will be sent back to the committee to be “fixed.”

Explaining the Klobachur-Sanders Amendment

In comparison, the Klobachur-Sanders amendment provides for a resolution from the Budget Committee.  In order to enact federal programs, the Senate Budget Committee needs to give “instructions” in the form of a resolution. For example, if the Senate Budget Committee provides a resolution to spend an X amount of dollars on Y, then it is an instruction for the appropriations committee that the committee cannot go over the allocated amount.  In other words, the budget committee allocates the maximum available money for any program, and the other committees figure out how to implement the finer details of the legislation.

In plain English, the Klobachur-Sanders bill would give the subcommittee authority to use a set amount of dollars for the importation of drugs from Canada.

On his Facebook post, Cory Booker cited “safety concerns” as the reason for not voting for the Klobuchar-Sanders amendment. However, given the current regulatory framework (explained below), this is a disingenuous claim on the part of the senator.

In 1987, recognizing the increased multinational nature of the pharmaceutical industry, Congress passed a measure to regulate the importation of prescription drugs from other countries, given certain regulatory standards are met. [See below]

sanders-amendment
Based on the 1987 statute, Congress already provides strict guidelines within the pharmaceutical supply chain for importing drugs.

Booker Lied About Safety Concerns

Currently, it is legal for certain type of entities to import drugs from Canada, but there’s a catch: Only manufacturers from Canada can do it, and as long as they are early enough in the supply chain. Wholesalers and individuals (pharmacists), however, cannot import from Canada.

As a result of this restriction, Drug companies in Canada cannot decide on the price based on free market or profitability. Instead, in Canada, before sending their drugs to wholesalers or pharmacists, the Drug company must appear in front of a regulatory board known as the “Patented Medicine Price Review Board.”

PMPRB

The PMPRB sets the drug prices based on CPI and the average price in other countries.  Because of this board, Canadians pay on average 67% less than Americans. This means that for every $100 Americans pay for drugs, Canadians only pay $33. The Klobachur-Sanders Amendment would have allowed wholesalers and individuals to import drugs from Canada at the lower price set forth by the PMPRB.

sanders-amendment-2

Safety standards were never threatened by this Amendment. As I mentioned earlier, we already import drugs from Canada, and they must pass strict safety standards — the only difference is that we have to pay more for them.

 

Tinker Tailor Lawyer Spy. Esha Krishanaswamy is a lawyer, as well as an activist associated with CodePink.

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