Human nature being what it is, even the best designed systems are prey to persistent attacks. My concern in recent years has been the increasing emotionalism of debate and the totalitarian desire to impose outcomes rather than obey the law.
This has taken many forms. There is the simple partisan abuse of power as demonstrated by the District Attorney in Madison, Wisconsin in the still unfolding John Doe scandal where the DA used the coercive power of the state to go on an unfounded fishing expedition against political opponents and attempted to cover it up by again using the coercive power of government through a gag order to prevent the victims from speaking to the press of the crime being committed against them by the DA.
There was the Duke University Scandal where the local District Attorney, seeking to curry favor with the local electorate, went after the Lacrosse team with virtually no evidence that a crime had been committed and then, as time passed, increasing evidence that in fact all charges had been false. The DA dug himself into a deeper hole by obstructing justice by hiding the refuting evidence. The debacle was exacerbated by the Gender and Ethnic studies professors at Duke wanting to punish white athletes simply for being white athletes rather than for actually having committed a crime.
This was followed by the George Zimmerman trial where all the evidence was supportive of Zimmerman's account and the DA was unable to even construct a coherent alternative account.
In all these cases, the media, select politicians, and certain segments of the academy have sought to circumvent the law in order to exact punishment on the innocent.
The more egregious example, to me, has been Harry Reed, former Senate Leader, who seems to have taken a manic interest in the Koch brothers that seems to extend beyond even ideology. They are libertarians and support all sorts of issues consonant with Reed's beliefs such as gay marriage. None-the-less, Reed has taken to using his platform as a US Senator to conduct a campaign of harassment against them by spreading lies and rumors. A US Senator using his position of governmental coercive power to campaign against private citizens who have committed no crime other than to incur his dislike. That is not how our democracy is supposed to work.
For those of us who believe all citizens should be impartially subject to the same law, these mob like show trials are concerning, particularly when, as is often the case, no law has been broken or simply some regulatory fig leaf to shield the coercion that is actually being exercised.
I have paid little attention to the most recent media storm regarding some pharmaceutical CEO who incurred social media and mainstream media aprobrium by making an unpopular, but legal, decision to substantially raise prices on a drug. I am still not paying attention other than to note this useful observation from Everyone Hates Martin Shkreli. Everyone Is Missing the Point by Kelefa Sanneh. Shkreli is the targeted CEO and being interrogated by a Senate committee. Brafman is his lawyer counselling him assert his right to not respond.
The questioning continued this way, with Shkreli sometimes fidgeting, sometimes smiling, and sometimes furrowing his eyebrows, as if he couldn’t believe he had to sit through something so ridiculous. Brafman later explained that his client was suffering from a surfeit of “nervous energy,” but Shkreli himself provided a different account of his state of mind, via Twitter: “Hard to accept that these imbeciles represent the people in our government.”
No one, least of all Shkreli, should be surprised that Thursday’s performance inspired a new round of Shkreli-bashing. Perhaps the most eager participant was Jake Tapper, of CNN, who criticized Shkreli’s “smirky smugness” and added some startlingly violent commentary: “I’m sure there are many ailing individuals out there who might like to remove Shkreli’s smile with the business end of a shovel.”
But was Shkreli’s performance actually more objectionable than that of the legislators who were performing alongside him? Elijah Cummings, of Maryland, is the ranking Democrat on the committee, and he used his allotted time to deliver a scolding. “Somebody’s paying for these drugs, and it’s the taxpayers that end up paying for some of them,” he said. “Those are our constituents.” In fact, it’s hard to figure out exactly who is paying what for Daraprim. Shkreli and Turing have claimed that hospitals and insurance companies will pay, while patients who can’t afford it will get a discount, or get it for free. And Nancy Retzlaff, Turing’s chief commercial officer, told the committee about her company’s efforts to get the drug to people who can’t afford it. The arrangement she described sounded like a hodge-podge, an ungainly combination of dizzyingly high prices, mysterious corporate bargaining, and occasional charitable acts—which is to say, it sounded not so much different from the rest of our medical system.
Even so, Cummings acted as if Shkreli were the only thing preventing a broken system from being fixed. “I know you’re smiling, but I’m very serious, sir,” he said. “The way I see it, you can go down in history as the poster boy for greedy drug-company executives, or you can change the system—yeah, you.” Cummings has been in Congress since 1996, and he is a firm believer in the power of government to improve industry through regulation. And yet now he was begging the former C.E.O. of a relatively minor pharmaceutical company to “change the system”? It seemed like an act of abdication.
The Republican-led committee was no more impressive. As if to establish that Turing was unnecessarily profitable, the committee released documents showing that the company had thrown a lavish party—fireworks included—and given some executives six-figure raises. (If this now counts as corporate behavior worthy of oversight and reform, the committee may soon find its schedule overbooked.) And then there was John Mica, a Republican from Florida, who has vowed to “keep the government out of patients’ sick beds.” Notwithstanding his skepticism of government intervention, he expressed alarm that some drug prices have “skyrocketed.” Even more than his colleagues, he seemed taken aback by the star witness’s recalcitrance, as if he couldn’t fathom why a private citizen wouldn’t be more deferential to his government—at one point, he threatened to move to hold Shkreli in contempt.
The Daraprim saga has as much to do with the Food and Drug Administration as with Shkreli: although the drug’s patent expired in the nineteen-fifties, the F.D.A. certification process for generic drugs is gruelling enough that, for the moment, whoever owns Daraprim has a virtual monopoly in America. (Overseas, it is much cheaper.) One of the witnesses on Thursday was Janet Woodcock, an F.D.A. official in charge of drug evaluation. Mica asked her about reports that a number of drugs had doubled or quadrupled in price in recent years. Woodcock said, “Congress has not really vested any authority for the F.D.A. over pricing, so we do not follow that.” If Mica wants to lower drug prices by encouraging competition, then he should concentrate on changing the regulatory process. And he should be aware that his plan will require more medical entrepreneurs, not fewer.
One of the strangest things about the anti-Shkreli argument is that it asks us to be shocked that a medical executive is motivated by profit. And one of the strangest things about Shkreli himself is that he doesn’t seem to be motivated by profit—at least, not entirely. Last fall, Derek Lowe, a chemist and blogger affiliated with Science, criticized Shkreli’s plan to raise prices as a “terrible idea,” not least because such an ostentatious plan posed “a serious risk of bringing the entire pricing structure of the industry under much heavier scrutiny and regulation.” He called on the pharmaceutical industry to denounce Shkreli as a means of protecting its own business model; from an economic point of view, Shkreli’s strategy seemed self-defeating. At least one person close to Shkreli seems to have agreed. One of the most revealing documents uncovered by the committee showed an unnamed executive imploring him not to raise the price of Daraprim again, saying that the risk of another media firestorm outweighed the benefit. “Investors just don’t like this stuff,” the e-mail said. Shkreli’s response was coolly noncommittal: “We can wait a few months for sure.”
A truly greedy executive would keep a much lower profile than Shkreli: there would be no headline-grabbing exponential price hikes, just boring but reliable ticks upward; no interviews, no tweeting, and absolutely no hip-hop feuds. A truly greedy executive would stay more or less anonymous. (How many other pharmaceutical C.E.O.s can you name?) But Shkreli seems intent on proving a point about money and medicine, and you don’t have to agree with his assessment in order to appreciate the service he has done us all. By showing what is legal, he has helped us to think about what we might want to change, and what we might need to learn to live with.
Most of our Presidential candidates claim to disdain Washington politicians, but, on Thursday, Shkreli put that disdain into practice—and helped illustrate, to anyone paying attention, why it is so richly deserved. He is candid even when candor doesn’t pay. (Can there be any doubt that Hillary Clinton, after her own recent appearance before Gowdy and some of his colleagues, would have loved to send a tweet like Shkreli’s?) Last fall, Trump said that Shkreli “looks like a spoiled brat”; in fact, he is the son of a doorman, born to parents who emigrated from Albania. Look at him now! True, he has those indictments to worry about. But he is also a self-made celebrity, thanks to a business plan that makes it harder for us to ignore the incoherence and inefficiency of our medical industry. He rolls his eyes at members of Congress, he carries on thoughtful conversations with random Internet commenters, and, unlike most of our public figures, he may never learn the arts of pandering and grovelling. He is the American Dream, a rude reminder of the spirit that makes this country great, or at any rate exceptional. Shkreli for President! If voters in New Hampshire are truly intent on sending a message to the Washington establishment they claim to hate, they could—and probably will—do a lot worse.
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