It might be wishful thinking and Sen. Joe Manchin attention-mongering all over again, but there is increasing noise that Democrats are looking again at reviving parts of President Joe Biden’s agenda for climate change and social investment (formerly known as Build Back Better). “We want to get it. Look, there are lots of talks going on right now. They’re not in a great degree of granularity,” Majority Leader Chuck Schumer told reporters before the Senate took off for Easter recess earlier this month. “We’d like to move a reconciliation bill and go as far as you can, get as much done as we can, with 50 votes.”
Reconciliation is how it has to be done, the only way to avoid a Republican filibuster, because two Democrats—Manchin and Arizona’s Kyrsten Sinema—refuse to consider saving everything that’s good in this country with filibuster reform. Reconciliation, which requires 50 Senate votes, is also hampered by the hostage-taking of one or both of those senators, who can derail anything on a whim by withholding their votes. So when Manchin says he would agree to three things from the Build Back Better framework—tax reform, prescription drug cost cuts, and climate efforts—he does so knowing that Sinema won’t agree on any of those things. In fact, just this month she promised the Arizona Chamber of Commerce and Industry that she’ll protect their low tax rates.
“What I can’t tell you is if negotiations will start again or what they’ll look like,” she said. “But what I can promise you is that I’ll be the same person in negotiations if they start again that I was in negotiations last year.”
But Biden can act without them on some of this stuff, which Sen. Elizabeth Warren (D-MA) reminded the administration of yet again on Monday. She wrote to Health and Human Services Secretary Xavier Becerra to outline the executive actions Biden can take on prescription drugs—actions that can be done without Congress—to lower to their cost to consumers. Which would be a really popular thing to do ahead of an election.
Warren worked with a group of more than 25 experts in law and public health from Yale Law School, Harvard Medical School, and Columbia Law School to explain the three options the administration has at its disposal, and urged Becerra to to “move swiftly to use your existing authorities to give sorely needed relief to the millions of Americans paying far too much for their prescription drugs.”
“Existing law gives the executive branch several tools to intervene when patients and public health are harmed by excessive drug prices,” the experts explained in their own letter to Warren last week. “These tools can help the Administration break patent barriers, foster competition where currently there is none, and drive down prices. Critically, using them requires no additional congressional action.”
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One of the three tools they discuss is the “government patent use power,” which has been used by the government “to procure important patented technologies from manufacturers other than the patent holders, who may charge very high prices.” They provide the example of the Pentagon using it to purchase technology like night-vision goggles. The other two options for executive action are provided under the 1980 Bayh-Dole Act, “intended to ensure that the public would not be deprived the benefits of inventions that it had effectively sponsored through government-funded research.” Through both “royalty-free license” and “march-in rights” established in that act, the government can break patent barriers for drugs developed with federal research money—and many, many pharmaceuticals fall into that category.
“In our view, § 1498 [the ‘government patent use power’] is a powerful general-purpose tool to target excessive pricing, while the Bayh-Dole Act is particularly helpful for patents that received government research support,” the experts write. “We believe that the two can and should be used together as part of a cohesive strategy when drugs of high public health importance are sold to US patients at excessive prices.”
Democrats and advocacy groups have been ramping up the pressure on Biden to take all the executive actions available, from immigration to canceling student debt, combatting the climate crisis, reducing fossil fuel dependence, investing in care economy jobs and standards, and regulating for economic and tax fairness. Biden has acted on Affordable Care Act premium costs, on ghost guns, and on environmental issues, but not on some of the really big stuff—the really big stuff he was imagining in Build Back Better.
Here’s one option for him from Warren, at least one item from Biden’s big agenda that can be salvaged immediately—Manchin and Sinema be damned.