11/04/2010 07:08 am ET Updated May 25, 2011

The 2010 Elections, Reflections, Lessons and Taking Stock

The 2008 election of Barack Obama was moving, not only for me and others who voted for Obama, but also for many who didn't support his candidacy. At one point everyone appreciated the historic barriers that had been crossed, and were grateful for the new more inclusive political landscape. We were also sobered by the grave risks to the world as a consequence of a financial crisis brought about by widespread fraud, the exploitation of uninformed investors, lax regulation, and greed.

Now, two years later, a new election has resulted in a loss of 60 democratic seats in the House of Representatives, and 7 to 9 seats in the U.S. Senate.

For the first time in the Obama Administration, the Republicans will have control of congressional committees, and the power to issue subpoenas and investigate the government, or anything else of interest. We haven't seen Republican investigations of a Democratic Administration since the Clinton Administration. Now we will see lots.

The Republicans will claim a mandate to cut federal taxes, spending and budget deficits. Two of three of these objectives might be feasible. Three of three is highly unlikely.

With most of our money going to the military, social security and paying the federal debt, and tax cuts for high income persons, and Republicans promising permanent tax cuts for wealthy and corporate taxpayers, it will be a rough go for anyone seeking to protect or expand federal spending on domestic social programs, or foreign aid unrelated to military adventures.

This election was partly a statement about the direction of the country, and the lack of a convincing story emulating from the White House about how the country will get back on the right track. Why did Democrats appear tone deaf during this economic crisis? For one thing, political leaders from both parties have first and foremost appealed to potential campaign contributors, and in particular, corporations with durable interests and deep pockets.

Some say $4 billion was spent on the election. This includes corporate money newly liberated by the U.S. Supreme Court's Citizens United decision. This may have been a tit for tat or a deliberate escalation, in addition to spectacularly poor judgment. The Supreme Court arguably broke precedent as a consequence of Obama's breaking of the public financing system in 2008. Conservatives on the Supreme Court were concerned that the current rules could benefit the Democrats more than the Republicans in the 2012 election.

Money for campaigns isn't given without expectations of influence, and politicians in both parties understand what donors want.

It's hard to develop a public narrative and a legislative record as a champion of the underdog when you spend so much time pandering to giant corporate interests.

It's not that the Democrats in the White House and the Congress have not done many good things - they have accomplished quite a bit. The economy would be much worse than it is today. Some helpful changes will be made in student loans, and the health care reform bill, while flawed for not dealing with cost controls, does make it easier for persons with prior conditions to buy insurance. In countless areas the Obama Administration has made the government more effective and better prepared to deal with the challenges of protecting the environment and worker, consumer or civil rights. (More on the positive achievements here).

But there are also very visible areas where they have compromised, delivered very little, or made things worse.

In the areas where I work, which includes policies regarding intellectual property rights and innovation, I have made a few notes of some of the positive and negative surprises we have seen over the past two years. This is not exhaustive -- I don't have the time for that. But it does illustrate the frustrations that many feel following the change we voted for (and expected) in 2008. In short, I was:

  • Surprised, shocked and disappointed to learn that almost immediately after his inauguration, President Obama held secret meetings with the CEOs of Pfizer, Abbott, Merck and PhRMA, and made non-transparent deals to abandon his campaign promises to rein-in high drug prices. More here and here.
  • Surprised and disappointed when the White House declared that international negotiations over a new controversial anti-consumer agreement on copyright, trademark and patent policy would be conducted in secrecy, as a matter of national security. Cynically named the "anti-counterfeiting" trade agreement (ACTA), but dealing with civil and criminal enforcement of all routine infringements of intellectual property rights, for more than a year, the Obama Administration fought the inclusion in the agreement of basic safeguards of consumer rights, and exceptions in areas of public interest, such as the enforcement of patent infringement cases against medical professionals, drug companies that fail to disclose relevant patents on biologic drugs, or uses of "orphaned" copyrighted works by libraries, archives or educational institutions. When the European Parliament vote 633 to 13 to demand that new safeguards be added for consumers, and the negotiators make the text public, President Obama personally endorsed the ACTA negotiations in a speech the next day. To the very end of this year, the United States was the only country of 38 that opposed transparency of the negotiations. More here, here, here and here.
  • Surprised when the Obama Administration was successfully lobbied by big pharma to oppose work at the World Health Organization on a medical R&D treaty.
  • Surprised that the Obama Administration placed drug company lobbyists inside of the UN's World Intellectual Property Organization to deal with public health issues.
  • Surprised that the Obama Administration gave grants to pharmaceutical industry funded groups to advise developing countries on pharmaceutical patent issues. More here.
  • Surprised that the Obama Administration blocked an effort to have regional discussions on the transparency of the pharmaceutical sector. More here.
  • Surprised that the Department of Justice allowed Ticketmaster to merge with LiveNation, creating more monopoly power in the booking of live performances of artists. The merger was opposed by Bruce Springsteen and other performers, but DOJ refused to block it. More here.
  • Disappointed when the Department of Justice allowed Oracle to acquire the assets of MySQL, putting together in one company the leading free software platform and the leading commercial platform for database services. Not surprisingly, Oracle has introduced sharp fee hikes to support MySQL, killed off low-priced support options, and more than doubled what it charges for the commercial versions of the database. More here and here.
  • Disappointed the Obama Administration has continued the Bush Administration policies of pressuring Thailand, India and other developing countries on drug patents.
  • Pleased the NIH agreed to license a minor patent on an AIDS drug, but waiting for stronger action on patents that are more useful. More here.
  • Disappointed the Obama Administration has yet to grant a hearing to patients suffering from Fabry's disease who are asking for a license to use a patent on a government funded invention, in order to overcome a shortage in the United States of a life saving drug. More here.
  • Disappointed that the Obama Administration has played a cynical game in blocking progress on a new copyright treaty for persons who are blind or have other disabilities, and taken the side of mostly foreign owned publishers backing complex and unworkable alternatives. At least the Obama Administration is no longer officially opposed to the treaty. Now they are "open" to the treaty. Unfortunately, all of the backroom diplomacy is designed to kill rather than advance the treaty, or to create such a mess that a new intentional legal norms will make things worse rather than better for persons with disabilities. (Following in the tradition of failed negotiations for Paragraph 6 of the Doha Declaration or the 1971 Appendix to the Berne Convention). Groups critical of the Administration position are just frozen out by the White House. More here.
  • Pleased that the Department of Justice has recently filed a brief opposing patents on genes, and hoping the Patent Office stops granting these patents. More here.
  • Disappointed when Howard Dean was hired by BIO to lobby against rules to allow more competition of biologic medicines. More here and here.
  • Shocked when a proposal by Representative Henry Waxman to make it easier to register generic (biosimiliar) versions of expensive biologic drugs was rejected by a 11 to 47 vote, in the committee he chaired, undermining one of the few efforts to control the costs of new medicines in the health care reform legislation. More here.

What are the lessons from all of this?

First, one thing that can't be repeated enough is that the public continues to underestimate the corrosive impact of our system of financing elections, which is basically legal bribery. This has pretty much destroyed the Democratic party as a defender of consumers and workers. Not every elected official, or every vote of every official has been corrupted by campaign contributions. But the pressing need to raise more and more money has a huge impact on the overall state of affairs, and it is just getting worse.

Second, it is possible to push for useful reforms, if they are easy enough for the public to understand, and there is a real effort by some political leaders with enough fame, power and/or charisma to make people pay attention. That's what we though we were getting with Obama. But so far, that type of communication seemed to have disappeared after the 2008 election. Maybe now that Obama will be running scared for the 2012 election we might see more of this -- if he doesn't spend all his time trying to raise a billion or so in fat cat contributions.