- - Monday, November 27, 2017

ANALYSIS/OPINION:

Last week, Sen. Claire McCaskill, Missouri Democrat, added an amendment to the euphemistically styled “Tax Cuts and Jobs Act” that would deny pharmaceutical companies full immediate expensing of truthful prescription drug advertising protected by the First Amendment.

The amendment is constitutionally infirm and economically unsound. It should be killed. Sen. Rand Paul, Kentucky Republican, and 14 other senators deserve applause for an Oct. 31, 2017, letter to Majority Leader Mitch McConnell, Kentucky Republican, and Minority Leader Chuck Schumer, New York Democrat, opposing McCaskill’s amendment.  

James Madison, father of the U.S. Constitution and the Bill of Rights, advised, “It is proper to take alarm at the first experiment on our liberties.” Additional encroachments invariably follow. Sen. Richard Blumenthal and Rep. Rosa DeLauro, Connecticut Democrats, have attempted to end tax deductibility for advertising food or drink deemed unhealthy by a nanny state. Former Rep. Dave Camp, Michigan Republican,  sought to remove the full, immediate deductibility of advertising entirely.

But the First Amendment prohibits government from singling out protected speech for disfavored treatment. The United States Supreme Court invalidated a selective use tax on items employed in the publication of periodicals like newspapers in Minneapolis Star & Tribune v. Minnesota Commissioner of Revenue (1983). Writing for the Court, Justice Sandra Day O’Connor explained:

“When the State imposes a generally applicable tax, there is little cause for concern.  We need not fear that a government will destroy a selected group of taxpayers by burdensome taxation if it must impose the same burden on the rest of its constituency. When the State singles out the press, though, the political constraints that prevent a legislature from passing crippling taxes of general applicability are weakened…That threat can operate as effectively as a censor to check critical comment by the press.”

Justice Sandra Day O’Connor’s implied distinction between political and commercial speech grows dimmer by the day.  It is now commonplace for commercial entities to strengthen goodwill by taking political stances that resonate with all or some of their customer base.  Companies have addressed such controversial political topics as discrimination based on sexual orientation; restrooms for transgender persons; immigration, sanctuary cities, and deportation; removal of Confederate statues or symbols from government property; sexual assault or harassment in the workplace; and, NFL players kneeling during the National Anthem.      

In any event, even pure truthful commercial advertising should be encouraged, not disfavored by government. It is a cornerstone of consumer welfare. It fosters competition among incumbent suppliers. It facilities new entrants bringing innovative or more efficient means of doing business.  United States Supreme Court Justice Harry Blackmun further elaborated on its consumer benefits in Virginia Pharmacy Board v. Virginia Consumer Council (1976):

“[T]he particular consumer’s interest in the free flow of commercial information … may be as keen, if not keener by far, than his interest in the day’s most urgent political debate … Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent. When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities.”

Government paternalism typified by the McCaskill amendment is anathema to the Constitution’s sacralization of liberty. The United States Supreme Court sermonized in Meyer v. Nebraska (1923):

In order to submerge the individual. and develop ideal citizens, Sparta assembled the males at seven into barracks and entrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest.”

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