I'm sure many of us deplore medical ads.  I know I've seen that commercial for Viagra that airs during the early evening, and thought, "Great.  Now I'll have to explain 'erectile dysfunction' to my four-year-old."  I've also been known to snort derisively at "restless leg syndrome."  Even so, I must admit these much-decried medical advertisements serve several valuable purposes: prompting doctor visits, increasing awareness of new medications and newly-discovered medical conditions, and leading patients to get drugs they need.

Moreover, the Democrats' proposed ban on new drug ads would virtually kill pharmaceutical research and innovation.  The estimated cost of developing a new drug was $803 million in 2003.  Nearly 40% of that cost goes to FDA-mandated testing in the name of "patient safety."  Thus, the government causes drug development costs to skyrocket--and then clamps down on the people allowed to learn about the new product by banning all advertisement of that product!  With all of these "safety" inspired roadblocks to drug development, you'd think that the developing new cures was a leading cause of cancer in America.

I'm sure for those liberal in the audience, these practical rationales mean little in the face of spitting in the eye of "Big Pharma."  So here's the best reason why this proposal should die a well-deserved death: it's completely unconstitutional.

In fact, in 2007, a similar drug advertising ban wound its way through Congress.  It failed miserably, due to legislators' justified concern that such a total prohibition would violate even the weakened First Amendment protections afforded to commercial speech.  The First Amendment protects commercial speech as something of a "second-class" citizen.  Because of the government's "traditional" role in regulating commercial speech, ads are subject to a test laid out in Central Hudson Gas & Elec. Co. v. Public Service:

Provided the commercial speech concerns lawful activity (like the promotion of lawful drugs) and is not misleading (like a drug ad that discloses known risks and benefits of a product), then the government seeking to promote a substantial government interest (like the public health) cannot be overly extensive.  So the question for the Democrats is: "Is a total ban on new drug ads "more extensive than necessary" to promote the public health?

Turns out that we don't have to ponder this question in the abstract for too long.  The Supreme Court already answered this question in 1976.  In Virginia State Board of Pharm. v. Virginia Citizens Consumer Council, Inc., the Court ruled against "highly paternalistic" laws banning pharmacies from advertising drug prices.  In Virginia State, the state had been concerned that ads would cause consumers to purchase drugs based solely on price (!) rather than loyalty to a certain pharmacist--a process that would damage the all-important pharmacist-patient relationship by forcing pharmacists to compete in the evil, evil marketplace.

And just as examining Virginia State shows us why this proposal is unconstitutional, Virginia State shows us the true reason why liberals want to ban medical advertisements.  It's all about resistance to the marketplace.  Liberals want socialized medicine.  Drug development and improvement through competition is as antithetical to socialism as holy water is to a vampire.  Socialized medicine will stifle innovation and growth.  The more drugs that we see being produced now, under a capitalistic system, the more we will know what we lost when Obama finally brings us the hope and change usually associated with the former Soviet Union.

The FDA monitors advertisements for truthfulness and full risk disclosure.  Any further governmental regulation--including and especially a blanket ban on advertising new drugs--is nothing more than a calculated step towards advancing communism.

The Commission members explained that the risk of such attacks is increasing because Al Qaeda and other terrorists have demonstrated continued interest in using such weapons of mass destruction and could try to hire rogue scientists.  According to the WMD Commission, a biological attack is more likely than a nuclear attack, because pathogens are easier to obtain and weaponize.

To minimize the growing threat, the Commission suggests several commonsense tactics, including tightening government oversight of high-containment laboratories, greater law enforcement and national security integration to address the threat of WMDs and terrorism, and international cooperation with nations at risk, such as Russia and Pakistan.

 

In an interview with this blog, Commission Co-Chair and former U.S. Senator Jim Talent (R-Missouri) expanded on the Commission's recommendations.  Despite Pakistan's reputation as a haven for terrorists, Mr. Talent maintains that cooperation with Pakistan is a realistic possibility.  He explains, "The key there is to get them to focus on the urgency of the threat--to understand that stopping terrorism and WMD should be their top priority as well as ours.  The recent attacks on Mumbai, with the negative consequences for the credibility of the Pakistani government, may help reinforce the right message."

Mr. Talent predicts that our traditional allies, such as Britain, will be among our strongest supporters in securing nuclear and pathogenic material.  He also suggests that the Russians have been "reasonable" on the issue of terrorism.  "[T]hey recognize it is not in their interests for their nuclear material to be stolen."   

The Report did not directly address border security, focusing primarily on "issues like cargo screening and how well the intelligence community was tracking suspected terrorists who entered the United States from abroad."  For example, the Report notes criticism levelled at the Department of Homeland Security?s Container Security Initiative (CSI).  CSI scans high-risk cargo before it is loaded on U.S.-bound container ships, but CSI relies heavily on shipper-provided information to determine which containers are "high-risk."

The Report also noted the need for a "nuclear security workforce."  The Commission "found great concern in a number of key agencies over sustaining the necessary base of expertise once the baby boom cohort retires."  They recommend a "government-wide national security education program for the national security officer corps, similar to the various schools used by the military."  The Commission argues for "special emphasis on the need of the government labs to sustain their expertise and greater priority and attention to joint assignments and curriculum as a way of increasing the attractiveness of intelligence work and the capabilities of the community."

The Commission's Report did not discuss whether Obama's planned tactic of withdrawing combat troops from Iraq will help or hurt the U.S. in terms of dealing with the threat of nuclear and/or biological weapons. 

"Expected" by whom?  Total morons?  What developed country would ever voluntarily "drastically" attack its own businesses (and thus its own lifeblood: tax revenues)?  And what developing country would intentionally agree to restrictions that put further economic pressure on its impoverished citizens?

Sure, some countries could sign just to receive kudos from the Left.  But who's going to enforce this agreement?

Well, it's that very question that led Stephen Hockman, QC to propose a new international court to be the supreme legal authority on issues regarding the environment.  The court's primary goal is to enforce such international agreements regarding greenhouse gas emissions.

But wait: there's more.  This court would also "fine countries or companies that fail to protect endangered species or degrade the natural environment and enforce the 'right to a healthy environment.'"  It's this 'right to a healthy environment' that got me interested.  In the USA, we already protect the heck out of endangered species--just ask the snail darter--and we work hard to keep the environment unprofitable pristine.  (Don't get me wrong: these yahoo UN judges would likely hold that our EPA subsidizes the clubbing of baby seals.  I'm just saying that at least these two concepts aren't entirely foreign to US law.)

The 'right' to a healthy environment is so controversial that even Canada argued against its adoption.  But yet, here it is, because the UN adopted the Aarhus Convention.  This 'right' has given rise to frivolous lawsuits like the one filed in the Inter-American Commission on Human Rights by the Inuits against the United States.  The Inuit people argue that the United States' pollution has led to climate change, which has adversely impacted their rights to life, livelihood, and, yes, a healthy environment.  (We'll leave this notion of the right to a job--and not just any job, but your very first choice of a job--for another column.)

There is one bright spot in this proposed court.  The court may be able to fine businesses or states, but its founders envision its main role as making "declaratory rulings" that influence and embarrass countries into upholding the law.  Embarrass?  Certainly, in the Obama administration, international embarrassment will be pretty potent ammo.  But Americans will eventually come back to their senses and realize that international law exists only to harass the countries that vex the ultra-liberal UN.  Then, for once, the UN's utter and complete inability to act will be a positive.

At least I wasn't disappointed on the third point.  There are a few curse words--predictably, from Ed Martin.  However, the content is decidedly boring.  The main aspect of this "scandal" that seems to fire up the media is the revelation that Governor Blunt's former Chief of Staff Ed Martin acted politically.

I still have no idea why it's a bad thing for a politician to use a state email account to fire up the base or attempt to influence public policy on conservative issues.  To those ends, Martin informed social conservatives that Planned Parenthood-endorsed Jay Nixon wouldn't adequately defend Missouri's abortion laws in a Planned Parenthood-initiated legal challenge.  Martin also kvetched about the appointment of Grade A Ditz and flaming liberal Pat Breckenridge to the Missouri Supreme Court.

Other than noting that Martin has an astounding command of the obvious, I'm not sure how we can criticize these emails.  A governor's chief of staff holds an inherently political office--unlike, say, the Attorney General, not that Jay Nixon taken much notice of that whole "neutrality" thing during his tenure (see here and here).  Accordingly, if someone claims that a governor's chief of staff is politicizing his office, that sounds like credible evidence that the guy is doing his job.

Thus, the really interesting part of this lawsuit seems to have been lost in the fray.  None other than the vaunted Associated Press writes, "The e-mails . . . reveal politicization in the selection of judicial nominees . . ."   Great Scott!  The great and unassailable Missouri Plan is susceptible to politicization?  I'm shocked--shocked!

This goes against everything I've learned from the Missouri Bar.  Those guys swear up and down that the Missouri Plan is somehow immune from corruption--so immune, in fact, that there's no need for anyone to ever know anything about what goes on in those super-secret judicial selection meetings.  And here I thought that a fascistic refusal to disclose anything about a government process was a virtual guarantee that that process is fair and unobjectionable.  Upon reflection, perhaps the Bar, which contributes four of the seven people who nominate the judges to send to the Governor, has a conflict of interest and can't be trusted on this issue!

Now that I think about it even more, if the Governor's office can politicize the Missouri Plan, could the Appellate Judicial Commission also politicize the process?  Could it be that a completely unaccountable, trial lawyer-dominated panel is selecting plaintiff-friendly, socially liberal judicial nominees in flagrant disregard of Missourians' clear preference for textualists on the bench?

The only remotely reasonable argument for the Missouri Plan arises out of disgust with the "politicization" of the judiciary.  Otherwise, how would we countenance taking control over the judicial system away from the people?  Yet, since the Governor's office and the Appellate Judicial Commission have both politicized judicial selection under the Missouri Plan, we must accept that judges, and their selection, are inherently political.  Judges have different philosophies--textualism versus "legislation from the bench," for example.  And everyone--and yes, that includes guys in black robes--has biases.  Since those facts are obvious to anyone with even a cursory understanding of the judiciary, the more control we can give to the people, the better we'll be.

When Paulson first proposed the bailout--arguing that it was necessary to avoid the next Great Depression and avert the imposition of martial law, I had to snort.  "That over-inflated rhetoric won't convince anyone with half a brain," I thought.  And I was right.  The American people largely rejected the bailout--not that this stopped our so-called Congressional "representatives."

Then the Washington intelligensia tried to convince us that this was a one-off.  "Just give us this one payday, and we'll be all right.  No more shake-downs, we promise."  That promise lasted, what?  A day?  Maybe less?  Sure enough, just like any other blackmailer, within hours of the bailout's passage through the House, we had the same folks smugly informing us that the original bailout wasn't going to be nearly enough.

And now--now!--Paulson decides to change the bailout's "focus."  (Like an idea this amorphous and gratuitous had a focus other than helping out Paulson's buddies and giving anti-capitalist weirdos some headlines.)  Yes, Paulson has finally figured out that buying "toxic assets" isn't the way to give us the most bang for our buck.  Instead of buying bad loans, which are pretty much doomed to fail, our money will go to banks directly--a move which is merely likely to fail. 

One would assume that the government, as a careful financial steward, would designate or at least monitor how the money is spent.  One would be wrong.  The money is not being monitored, and, no surprise, banks are using the money in ways more akin to the frat boys at AIG executives than civic-minded lenders.

One would also assume that people would start nervously remembering other failed experiments in central economic planning.  Take the Soviet Union, for instance, where thousands coats rotted in government warehouses while citizens fought for clothing, and auto plants produced three or four cars a week--cars missing such amenities as steering wheels.  One would be wrong.  Instead, financial gurus are hailing Paulson's about-face as the first small step in the right direction.  Our government, they say, needs to be able to "prop up" the financial market for several months to come. 

Sound familiar?  In "several months," the economy will be so "ailing," that the government will need to continue to intervene for "several years."  This has to end now.  We, who have worked so hard to succeed, must neutralize these bureaucrats before they steal even more of our money and give it to people and businesses who have failed.