May 12, 2021
On Wednesday, the Biden administration threw its support behind the long-running effort to waive intellectual property rights on the COVID-19 vaccines, a decision that will likely save millions of lives worldwide. From a public health and a humanitarian perspective, this decision should have been a no-brainer, but we know that corporate America's lobbying against it was fierce. So how did it come to fruition?
As usual, personnel is policy, and this particular policy no doubt owes a great deal to United States Trade Representative Katherine Tai. Tai's was an appointment that progressives cheered. Her masterful handling of this first, critical issue, despite overwhelming opposition from the pharmaceutical industry and others, leaves little question as to why.
After people understand that it's possible to challenge the pharmaceutical industry, drastically lower prohibitive costs, and save lives, it's easy to see how the political grounds might shift.
That the administration eventually took this life-saving step also likely has a lot to do with who wasn't in the room when the final decision was being made. Secretary of Commerce Gina Raimondo, a faithful servant to corporate America and a staunch defender of intellectual property rights throughout this fight, was not only not in the room where it happened, but was not even in DC.
Of course, the fight to actually get vaccines in the arms of people across the globe is far from over. The U.S., after all, was not the only country standing in the way of a waiver. And while several countries have followed its lead in dropping their opposition, others, like Germany, continue to defend pharmaceutical company profits over human lives. It appears that reaching consensus will take more concerted lobbying from the U.S. and others.
What that consensus would ultimately be over also still has not yet been settled. The U.S. has indicated that it will be engaging in negotiations over the exact terms of an intellectual property waiver. The pharmaceutical industry and others will be working hard to ensure that its scope is defined as narrowly as possible. If the Biden administration is committed to getting the world vaccinated as quickly as possible, however, the waiver will need to encompass not only vaccines but equipment, inputs, and know-how. Moreover, from PPE to testing, all of the tools needed to combat COVID-19 need to be the subject of waivers. Negotiations will also need to move quickly.
Personnel will be important in these critical fights too. And it's not just Raimondo we have to worry about. The Biden administration has yet to announce its choice to lead the United States Patent and Trademark Office (USPTO), but several names churning through the rumor mill are alarming. Biden is reportedly considering patent attorneys Ellisen Turner and Jannie Lau for the position. As a partner at the law firm Kirkland & Ellis, Turner has gone to bat for pharmaceutical companies as they target competitors offering generic drugs. Until recently, Lau worked for the patent troll, InterDigital, suing for patent and copyright infringement and supporting lobbying efforts to make patent law even stricter. (For those who don't know, a patent troll "uses patents as legal weapons, instead of actually creating any new products or coming up with new ideas.")
Selections like these could threaten global vaccine access but they would definitely harm the broader effort to challenge the present intellectual property regime. Pharmaceutical companies, media enterprises, tech firms, and many others fought so hard against this waiver because they worried that challenging intellectual property rules in this one case could quickly lead the whole facade to crumble. After all, after people understand that it's possible to challenge the pharmaceutical industry, drastically lower prohibitive costs, and save lives, it's easy to see how the political grounds might shift. Biden must pick leaders who capitalize on this political opportunity rather than undermining it.
Since before Biden even took office, we have been calling on him to rapidly and thoroughly de-Trumpify the executive branch. Over his first months in office, he has made strides in this direction, although still not far enough.
Last week, his administration took an alarming step backwards when the Department of Justice announced that it had hired seventeen immigration judges who had received their initial offers of employment from the Trump administration. Consistent with Trump's other hires throughout his four years in office, the roster was filled with former prosecutors and counselors to ICE.
As our Ella Fanger wrote for our blog, "the Biden administration has attempted to justify this move by pointing to the 1.3 million backlog in immigration cases." But if Attorney General Merrick Garland is so worried about the backlog, he has better means to deal with it than installing judges who will deport immigrants at an alarming rate. As the New York Times Editorial Board highlighted over the weekend, Garland can close the vast majority of those cases, "most of which are low-level immigration violations like overstaying a visa."
Again, as Ella writes, "the immigration court system is fully under Merrick Garland's control-we need clear commitments from him to rapidly ramp up hiring of immigrant advocates to the bench and to use all available tools to reduce the backlog of immigration cases."
In his third month in office, Biden picked up the pace on independent agency (and overall) nominations. With 7 new nominations to agency boards in April, Biden doubled his total. But, as our Eleanor Eagan explains in a recent blog, many seats remain vacant, including critical ones standing in the way of Democratic majorities on the Commodity Futures Trading Commission, the Federal Trade Commission, and elsewhere. If Biden had made nominations to these seats expeditiously, these agencies might already have been working towards his goals by the time he reached 100 days. Instead, they are still weeks or months away from working at full capacity.
Moving forward, Biden needs to take this lesson to heart. He can start by nominating officials right away to replace outgoing Republicans on the Federal Energy Regulatory Commission and the National Labor Relations Board whose terms will expire this summer.
Those seats have generated relatively little attention but one expiring position--chair of the Federal Reserve Board of Governors--is, despite the fact that Chair Jerome Powell's term is not up until February. Speculation is already swirling over whether Biden will reappoint Powell to another four year term. Last week, the project's Max Moran and Eleanor Eagan weighed in against reappointment, citing Powell's poor record on regulation, climate, and racial equity and a shifting consensus on monetary policy.
Seemingly lost in this important conversation, however, is the fact that there's a vacant seat on the Fed Board right now (there has been since Biden took office). Biden need not wait until later this year to start exerting influence over this immensely powerful institution. He can and should be filling that spot right away.
One of the two independent agency officials who has actually been confirmed, Securities and Exchange Commission Chair Gary Gensler, laid out an ambitious agenda in a congressional hearing last week. To make it a reality, he will need to reassert control over the Public Company Accounting Oversight Board (PCAOB) which is currently in the hands of a Trump administration holdover intent on destroying it.
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