Finding Obamacare’s authors; assessing J&J’s CEO culpability; and grading Chris Christie

By Steven Brill
November 12, 2013

1. Finding the folks who wrote Obamacare:

As I report a story I am writing about Obamacare, it’s become clear to me that — as we are already seeing with the controversy over people getting their insurance plans dropped — there are all kinds of issues related to provisions in the massive law that are bound to get lots more attention once the website is working. A few weeks ago in this column, for example, I mentioned the as-yet-little-noticed high penalties that smokers will have to pay.

As with the smoking penalty, many of these issues are related to narrow provisions that are hard to spot in a 906-page law. But as someone who has now read those 906 pages I can also report that, in addition to the substantive issues likely to become bigger deals as the law is implemented, there are also potholes soon to come because the law is filled with inconsistencies, gaps, and just plain wording errors. More generally, even for legal writing, it’s badly constructed and seems written to torment even someone who is used to reading legislation.

With that in mind, I recently asked a senior Senate staff person who was heavily involved in designing the law who the person or persons who actually wrote it are, and how I might track them down for an interview. His answer: “Senate Legislative Counsel. They don’t talk to anyone.”

Actually, it’s called the Senate Office of the Legislative Counsel. And here’s how it describes itself on its website:

The Office of the Legislative Counsel provides legislative drafting services for the Committees and Members of the United States Senate. The Office is strictly nonpartisan and refrains from formulating policy. Legislative drafters strive to turn every request into clear, concise, and legally effective legislative language.

Members and staff of the Senate can rest assured that communication with the Office is always confidential. The Office has a long history of providing unbiased services to both majority and minority parties using the utmost discretion.

Any Senator or staff member of the Senate may request assistance from the Office. The Office does not interact with members of the public, except indirectly through their Congressional representatives.

There’s also a House version of the same office, whose website declares that it, too, is off-limits to the press and public.

Who are these people? Is their work as bad as my read of the Affordable Care Act suggests? Or are they the victims of the heavily-lobbied, needle-threading material that members of Congress and their staffs feed them? (That still wouldn’t seem to excuse how badly they write, but who knows?)

Some lawyers who labor in public service anonymously — Supreme Court clerks in particular — go on to great things. What about this crew? Are they stuck in dreary career-long jobs unlikely to attract the best and brightest? Or does bill-writing behind the scenes offer some kind of little-noticed short-term stepping stone?

A great Washington Post, Politico or American Lawyer story hiding in plain sight.

2. Where was the chief executive officer when Johnson & Johnson broke the law?

Last week the Justice Departme

nt announced that, as this New York Times report  put it, “Johnson & Johnson has agreed to pay more than $2.2 billion in criminal and civil fines to settle accusations that it improperly promoted the antipsychotic drug Risperdal to older adults, children and people with developmental disabilities.”

The settlement included the company agreeing to plead guilty to a criminal misdemeanor.

Further down in the story, the Times noted that, “Much of the conduct highlighted in the case, which for Risperdal extends from 1999 through 2005, occurred while Alex Gorsky was vice president for sales and marketing and later president of the company’s pharmaceutical unit, Janssen. Mr. Gorsky became chief executive of Johnson & Johnson last year.”

The only comment from the company about that, according to the Times, was this: “Ernie Knewitz, a spokesman for Johnson & Johnson, noted that the misdemeanor charge was being entered on behalf of the company and no individuals were charged with wrongdoing. ‘Mr. Gorsky has been an outstanding Johnson & Johnson leader for more than 20 years,’ he said.”

That certainly shouldn’t put the issue to rest. By combing through the legal documents and tracking down employees and former employees (the latter would, of course, likely be the best sources), reporters ought to figure out if and how the man who is now the CEO of one of the world’s leading pharmaceutical companies was directly, hands-on involved in what Attorney General Eric Holder declared last week were practices that “recklessly put at risk the health of some of the most vulnerable members of our society — including young children, the elderly and the disabled.” (And please do the story even if Mr. Gorsky turns out to have been more of a bystander than an operator; either way this is important.)

3. Christie as governor:

Amid all the stories and Sunday television appearances last week related to Chris Christie being the Republicans’ best hope for 2016, I was hoping for some good reporting on just how effective a governor he has been.

I’m still hoping.

Good, bad, or mixed, this is important stuff. It’s time for a major-league reporter or two to find a long-term deal at a motel in Trenton.

PHOTO: Republican New Jersey Governor Chris Christie gestures as he takes the stage at his election night party in Asbury Park, New Jersey November 5, 2013.  REUTERS/Mike Segar 
5 comments

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The story I’d like to see is Steven Brill actually writing a whole story instead of just asking the questions.

Posted by tmc | Report as abusive

Govt legislation is poorly written in other areas as well. The various docs around the Home Affordable Mortgage Program(which easily are more than a 1000 pages would be my guess) are poorly(and poor is putting it nicely) written. So are CFPB regulations.

Posted by monTalksBSWalks | Report as abusive

If and when Christie decides to run, there will be 200 reporters descending on Trenton – not 2. And most will start with the skeletons in Christie’s closet discussed in the pages of Double Down.

Posted by musicman495 | Report as abusive

@tmc Steven Brill did write a whole story, see his TIME magazine article “Bitter Pill: Why Medical Bills Are Killing Us” earlier this year. This is the longest single author article ever published by TIME, and is arguably the most important single news article of the current millennium. The massive research that went into this article undoubtedly hampered his ability to research other topics in depth.

Posted by QuietThinker | Report as abusive

J&J was just following industry standards. It is called “off label use.” The pharma industry gets FDA approval for a pill to address a specific symptomology. It is cheaper to measure narrow outcomes and easier to produce the research papers. Then the reps promote “off label use” to the physicians at the spa or over dinner. On the other hand Risperdal is a excellent tool if prescribed and used appropriately. This drug can also cause life long side effects with a single use, and is way over prescribed.

Posted by 2Borknot2B | Report as abusive