#Outrage

The Tort of Outrage is by far one of my favorites. The actions that would lead to a successful prosecution would be horrible - it's really a fun way of saying intentional infliction of emotional distress. But the most on-point court definition, in Reid v. Pierce County, quoting Browning v. Slenderella Systems of Seattle (quoting the Restatement (Second) of Torts), the Tort of Outrage requires conduct wherein "the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim 'Outrageous!'" Reid at 201-202. Put more plainly, this tort requires behavior "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Grimsby v. Samson at 59.  This makes me giggle. 

Outrage outside of the law, however, is both entertaining and frustrating. A blessing and a curse from being hyper-connected is that we can see everything that is going on in legislative bodies at all times. Most of us learned that Congress proposes and passes laws, the President enforces the laws, and the Judicial branch interprets laws and ensures they jive with the Constitution. Unfortunately (or fortunately?), most Americans' civics education ends here. The actual function of government is, of course, much more complicated and messy. 

For instance, while there are laws regarding Congress' duty on budgeting and providing means (fun fact: all revenue bills must originate in the U.S. House...sort of), the how is governed by the rules that Congress creates itself. Courts have no say over those rules - that would be a violation of the separation of powers. 

The United States Senate operates under its own set of rules. For all of the pithy back and forth we see from Democrats and Republicans, the Senate remains chummy, and for the sake of the institution, Senate leaders tend to stick with doing things how they have always been done. While it is not uncommon in the House, for instance, for Republicans to just not allow any Democratic amendments to bills to be considered, the Senate leaders typically hash out agreement over how many amendments each side gets to have considered. More often than not, these amendments are meant to embarrass certain senators, on both sides, with a full understanding that they will never actually pass. Hell, based on what I've seen, more often than not, these proposed amendments are poorly worded and don't do much of anything. 

Case in point - the Klobuchar amendment to S.Con.Res.3. For those who don't know, this underlying resolution is a budget issue, and begins the process of dismantling the Affordable Care Act. Every Democrat and Independent in the U.S. Senate voted against this resolution. Rightfully so. My thoughts on the ACA aside, absent a replacement, the actions by the Republicans on repealing the ACA with no replacement will lead to people dying. And the Republican Party doesn't care. 

The Klobuchar amendment, as written, would have added to the resolution an opportunity for the chair of the Budget Committee (Sen. Mike Enzi of WY) to have subcommittees consider, at his discretion, measures to be passed through the budget process (not the normal legislative process) that would reduce the prices of prescription drugs, without increasing the deficit. The amendment included re-importation from Canada as an exemplar. However, it did not require any action to be taken, and did not require any action that be taken center around a re-importation program (which, separately, has many issues of its own, and is in no way a permanent fix for skyrocketing pharmaceutical costs). 

What are some other deficit neutral ideas? We could go back to the 90's rules around advertising for pharmaceuticals. We could make changes to the patent system to discourage abuse by pharmaceutical companies. We could put restrictions on direct marketing to medical providers. We could loosen regulations on safety. We could eliminate steps on getting drugs to market. 

By allowing the committee to use the budget process, and avoid filibuster rules, this amendment, frankly, could have some terrible effects on safety of drugs, with minimal to no actual impact on cost. The vote was not a vote against a re-importation program. The vote was against an amendment offering up the opportunity for Republicans to push through something (perhaps a re-importation program) through the budget process and not traditional legislating. And because thirteen Democrats voted against this amendment to a resolution that all Democrats voted against (and would have regardless the outcome of this vote), there is internet outrage. 

Most people with whom I've engaged on this issue never bothered to read the amendment. Or called it a "Sanders bill." It was not a bill. It was not a plan. It was prime-sponsored by Sen. Amy Klobuchar. 

I get it - in Trump's America, we are in a post-fact world. However, I refuse to believe we have to give up the intellectual honesty, and give up on facts, to stir up our fellow liberals into a circular firing squad. This "controversy" has been nothing but that, and I fear the impacts this will have when we should be unified against a common enemy - the right wing and racists that have taken control of our country. 

That isn't to say people who wholeheartedly believe that a drug re-importation program is the way to solve prescription drug prices shouldn't lobby their legislators to actually come up with a plan. I would also suggest learning more about the efficacy of such a program, and the impacts that would have on our neighbors to the north (who, in theory, could very well just pass a law making it illegal to export pharmaceuticals, which would be smart considering the adverse impacts on supply a re-importation program from the United States, population 320 million, could have on Canada, population 35 million). 

But if we are going to get this worked up over something as non-consequential as Amendment 178, we're going to exhaust ourselves early. Personally, I'd rather save my energy for advocating for things that are real, and will actually have a positive impact on our communities, as well as against proposals that will have a devastating effect on our country. Thus, I reserve my outrage for a later time.