Inside Kennedy’s hideaway, June 2009

John McDonough recounts,

The scene was Senator Edward Kennedy’s Capitol Hill hideaway, steps away from the Senate chamber on a late afternoon in June 2009. [… A] chain of tables [was] pulled together for a high-stakes meeting on a contentious health reform issue–how to structure legislation to permit the manufacture and sale of generic-like biopharmaceutical drugs.

The key decision was how many years to permit makers of original biopharmaceutical products to avoid competition from new “biosimilars” beyond the life of their patents. […] The conversation pivoted on an exchange between Barbara Mikulsky (D-MD), the feisty lioness of the Senate, who preferred twelve years, and Shrerrod Brown (D-OH), a hard-nosed progressive who wanted five.

Brown opened by stating his preference for five years, though he added a willingness to go up to six.

Mikulski explained her rationale for twelve years and said she perhaps could be persuaded to go down to eleven.

Brown expressed a desire to be reasonable and said he might be able to live with seven.

Mikulski, reciprocating Brown’s reasonableness, said she could tolerate ten.

Brown thanked her for her flexibility and responded, “Eight.”

Mikulski paused, reflected, and said, “Nine and no less.”

Brown, smiling, offered, “Eight and a half?”

Mikulski didn’t wait: “Nine and no less.”

Brown paused. “I can’t go to nine.”

Game over, no deal. The matter was settled by the full committee on July 13 at a tense evening sesion where members voted sixteen to seven in favor of Orrin Hatch’s (R-UT) amendment granting twelve years of exclusivity.

Mikulski should not have entered the negotiation. Brown should not have exited it.

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