[Congressional Record Volume 165, Number 198 (Wednesday, December 11, 2019)]
[Senate]
[Pages S6967-S6968]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                     EXECUTIVE CALENDAR--Continued

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the VanDyke 
nomination.
  The Senator from Texas.


                   Unanimous Consent Request--S. 1416

  Mr. CORNYN. Mr. President, as all America knows, climbing healthcare 
costs continue to keep the American people up at night. A Kaiser 
Foundation poll in September found that the No. 1 health concern of the 
American people is prescription drug pricing. A whopping 70 percent of 
those polled think lowering prescription drug costs should be a top 
priority--a top priority--for Congress, making it the No. 1 item on our 
to-do list, but our friend and colleague from New York, the minority 
leader, objected last time I offered unanimous consent to take up and 
pass a bill, which I will describe here momentarily.
  I hope, given the intervening time and further reflection, he will 
not do so today, and we can get this bill passed and address this top 
priority of the American people.
  The good news is, Republicans and Democrats both agree we need to do 
something about it. I have the honor of serving on both the Finance and 
Judiciary Committees, where we have been looking into this problem and 
some of the potential solutions.
  There are pharmaceutical CEOs who earn big bonuses as sales go up. I 
am not opposed to them receiving compensation, but pharmacy benefit 
managers who negotiate backdoor rebates that drive up out-of-pocket 
costs are a problem because of the lack of transparency.
  What I find very seriously concerning as well is anti-competitive 
behavior when it comes to patents by drug manufacturers. There are two 
practices, in particular, that the legislation I intend to offer a 
unanimous consent request on would address.
  One is called product hopping, which occurs when a company develops a 
reformulation of a product that is about to lose exclusivity. Let me 
just stop a moment and say that one of the ways we protect the 
investment and the intellectual property of American innovators is to 
give them exclusivity over the right to sell and license that 
intellectual property, including drugs. That encourages people to make 
those investments. In turn, it benefits the American people and the 
world, literally, by creating new lifesaving drugs, and that is a good 
thing. There is a period of exclusivity, and after that expires--after 
that goes away--then it opens that particular formulation up to generic 
competition; meaning, the price will almost certainly be much lower and 
more affordable to the American people.
  This issue of product hopping is gamesmanship, as I will explain. 
First of all, before the drug loses exclusivity, the manufacturer pulls 
the drug off the market. This is done not because the new formula is 
more effective, but it will block generic competitors.
  The second issue is patent thicketing, which occurs when an innovator 
uses multiple, overlapping patents or patents with identical claims 
that make it nearly impossible for competitors to enter the market. 
This is nothing more and nothing less than

[[Page S6968]]

abuse of our patent system, and it is coming at a high cost for 
patients who rely on affordable drugs.
  Earlier this year, I introduced a bill with our friend and colleague 
from Connecticut, Senator Blumenthal, who happens to be a Democrat, to 
address these anti-competitive behaviors. Our bill is called the 
Affordable Prescriptions for Patients Act, and it streamlines the 
litigation process by limiting the number of patents these companies 
can use in court. So companies are spending less time in the courtroom 
and, hopefully, more time innovating these new lifesaving drugs, while 
opening up these drugs once they lose their exclusivity to generic 
competition and more and more affordable prices for consumers.
  This legislation does not stifle innovation; it doesn't limit 
patients' rights; and it doesn't cost taxpayers a dime. In fact, the 
Congressional Budget Office estimates it would lower--lower--Federal 
spending by more than a half a billion dollars over 10 years. This is 
just savings to the Federal Government for Medicare and Medicaid. 
Undoubtedly, it would show significant savings for consumers with 
private health insurance as well.

  I am sure it comes as no surprise, then, that this legislation passed 
unanimously out of the Judiciary Committee; not a single Senator 
opposed it. That happened in June. This is December, and there has been 
no movement since then.
  We have tried to be patient because we know there are other bills 
coming from the Health, Education, Labor, and Pensions Committee. There 
is a bill coming out of the Finance Committee on which the Presiding 
Officer and I sit. My hope is that we would have been able to make 
progress on a larger package, but here we are at the end of the year, 
and there has been no movement. We have been more than patient, but I 
think there comes a time when patience ceases to be a virtue, 
particularly when it comes to providing something that would benefit 
the American people.
  There are no concerns about the policies laid out in the bill, as you 
can see by some of the comments reflected in this chart. Again, our 
colleague, the Democrat from Connecticut, Senator Blumenthal, said: 
``This bill offers a positive, solid step toward ending abuses in the 
use of patents.''
  Senator Durbin, who is the Democratic whip, a member of leadership, 
said:

       It is a bipartisan measure that passed the Senate Judiciary 
     Committee. I not only voted for it, I cosponsored it, and I 
     believe it should pass and should become the law of the land.

  So imagine my surprise when the Democratic leader objected to a 
unanimous consent request to pass it a couple of weeks ago. He even 
went so far as to call this ``a manipulative charade'' and ``a little 
game,'' which is strange because he also called it a good bill. His 
biggest criticism was it didn't do enough, but as I pointed out then, 
if you sit around waiting for the big bill to get passed, nothing 
happens in the meantime, and it is a loss to the American people.
  I think it is past time for us to take up this legislation, get it 
passed, get it signed by the President. Our friends in the House of 
Representatives have already passed two bills, which, put together, 
essentially reflect the same policy.
  I can't think of any other reason for the Democratic leader to object 
than pure politics. He doesn't want anybody to get a ``win.'' That also 
goes for the Senator from Iowa, when she had offered a bill to 
reauthorize the Violence Against Women Act. She happens to be on the 
ballot in 2020 as well. The only rationale I can possibly think of that 
the Democratic leader would continue to object to these bipartisan 
consensus bills is just that he doesn't want somebody to be able to 
score a point on this side because he feels like that will disadvantage 
his candidates in the next election and advantage us.
  There comes a time when we need to put those election considerations 
to the side and focus on making good policy. I happen to believe good 
policy is good politics.
  The truth is, the Democratic leader, in objecting to the passage of 
this legislation, does have one very big and powerful cheerleader 
behind him; that is, the drug companies. The drug companies love it 
when bipartisan legislation gets blocked on the Senate floor for 
whatever reason. The truth is, they hate this bill, and they don't want 
to see anything done on this issue. Inadvertently or not, the 
Democratic leader seems to be providing them a lot of cover right now.
  My constituents didn't send me to Washington to play these endless 
games. They sent me here to get results, and that is exactly what I aim 
to do.
  Mr. President, I ask unanimous consent that as in legislative 
session, the Senate proceed to the immediate consideration of Calendar 
No. 132, S. 1416. I ask unanimous consent that the committee-reported 
substitute be withdrawn; that the Cornyn amendment at the desk be 
agreed to; that the bill, as amended, be considered read a third time 
and passed; and that the motion to reconsider be considered made and 
laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. SCHUMER. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. SCHUMER. Mr. President, my good friend, the Senator from Texas, 
is just engaged in a gimmick to cover up all that he hasn't done on 
making drug costs lower. Now, 99 percent of what the public wants is 
not being allowed on the floor by his leadership when he was the whip, 
by this leadership, and now he wants to get well with a bill that is 
very small.
  Open up the floor to debate. We will debate all the big things that 
will really reduce prices, which people want, and we will debate his 
bill. I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Texas.
  Mr. CORNYN. Mr. President, I point out to my friend from New York, I 
am not the leader or the floor manager of legislation. That is up to 
Senator McConnell, the Senator from Kentucky. Obviously, there has been 
foot-dragging on important things like appropriations bills, the 
USMCA--the important trade agreement with Canada and Mexico--and now 
there is impeachment mania that has consumed the House of 
Representatives and has crowded out our ability to get other things 
done; hence, my loss of patience after waiting since June to get this 
bill passed.
  This isn't a case of my wanting to get well; this is a case of 
wanting to make the American people well by providing them access to 
low-cost generic alternative drugs and preventing Big Pharma from 
engaging in the sorts of gamesmanship that keep drug prices up and keep 
the American consumer down.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CASEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CASEY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.