This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The 30th anniversary of the Hatch-Waxman Act—which revolutionized prescription drug regulation in the U.S.—provides an appropriate occasion to observe the unfortunate contrast between a time when Congress accomplished difficult and meaningful work, and today, when hyper-partisanship is resulting in the least productive Congress in history.
In 1984, Sen. Orrin Hatch (R-UT) faced a seemingly insurmountable set of challenges associated with reforming the Federal Drug Administration's regulatory system. He was forced to navigate both the political pressures of a presidential election year and the intense opposition from both the innovator and generic drug industries. His goal was to accomplish the dual objectives of facilitating approval for costly pioneer drugs and making lower-cost generic drugs available to the American public.
After three years of laying the groundwork through organizing meetings and hearings on the issue, Sen. Hatch found a liberal ally in the House of Representatives: Rep. Henry Waxman (D-CA). Together, they worked with industry leaders from both the brand and generic drug companies to achieve a legislative compromise. Despite the upcoming election and the end of the legislative session, their bill, officially called the Drug Price Competition and Patent Term Restoration Act of 1984, passed the Senate by unanimous consent and later secured House approval. Several days later, President Reagan signed the Hatch-Waxman Act into law.
Unfortunately, this bipartisan and bicameral achievement could not be accomplished in our current Congress.
While Republican extremists have made certain issues toxic and the House of Representatives is locked in partisan warfare; these days, legislation goes to the Democratic-controlled Senate to die. The House has passed more than 300 bills during this Congress; however, the Senate has considered only a few of them. To put the dysfunction in perspective, the current Senate has passed one-fifth as many bills as the Senate thirty years ago. Much of this discrepancy can be attributed to Majority Leader Harry Reid, D-Nev., who frequently acts to limit and even prevent debate on bills in order to protect the political interests of Democratic senators. The Senate is arguably the greatest deliberative body in the world, yet under Sen. Reid senators have less ability to propose amendments and vote on legislation than do minority party members in the House.
Sen. Reid's cynical changes are a betrayal of what the Founding Fathers intended the Senate to be: an arbiter of meaningful deliberation. Yet, Sen. Reid continues to block legislation to protect his fellow Senators from taking tough votes—especially during an election year. It is nearly impossible to imagine that Sen. Hatch and Rep. Waxman would have been able to pass the Hatch-Waxman Act in such a bitingly partisan environment.
Fortunately, Sen. Hatch is currently championing an effort to return the Senate to its traditional productivity. As a veteran senator who has participated in a functional Congress, he recently wrote that many of the "Senate's greatest legislative achievements have been the direct result of robust debate and an open amendment process that allowed senators to deliberate earnestly and arrive at eventual consensus." More senators need to join Sen. Hatch in reestablishing the Senate's integral role in our constitutional system.
If Republicans take control of the Senate on Nov. 4 — as many are predicting — let us hope they will not seek petty retaliation. Instead, they must follow Sen. Hatch's past actions and current advice to restore the traditions of the Senate through forging bipartisan and bicameral compromises.
Kirk L. Jowers is the University of Utah's director of the Hinckley Institute of Politics and chief adviser to the Office for Global Engagement. He is also a partner in the Washington, D.C., law firm of Caplin & Drysdale.