Amy Kapczynski —
Ask not for whom the First Amendment tolls: It tolls for you. Or so I argue in an essay just published at the Columbia Law Review online. It’s called “The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy”—a boring title for a vital and urgent problem. Courts, speaking in the name of the First Amendment, are “freeing” us from regulatory approaches that have worked for decades to protect us from snake oil and inform us about the products we put in our bodies. How did we arrive here? And how might democratic prerogatives retain control over the webs of commodity exchange upon which our lives depend? The essay addresses these questions, trying along the way to model how law and political economy analysis can contribute to our understanding.
The FDA is a key accomplishment of both the Progressive Era and the New Deal and perhaps the most muscular of all federal agencies. It regulates one-fifth of the consumer economy, and has enjoyed extraordinarily high levels of influence and public trust throughout its long history. This popularity may have something to do with the fact that the FDA gained its powers through successive waves of democratic demand for its intervention when “free markets” proved deadly. (If you don’t know the story of thalidomide, which left a trail of destruction around the world in the 1950s and 1960s, here is a vivid introduction). Perhaps unsurprisingly, the FDA has also been a prime target of neoliberals, who resent its extensive powers. Industry lobbying and sustained criticism from Chicago-school types and have had an impact; several recent laws have weakened the agency. But the respect and support the FDA commands have made legislative assaults challenging. Perhaps that is why industry—and industry funded groups—have invested in the use of the courts to attack its power.
What does that attack look like? The cases are astonishing. Some suggest that drug companies have a free speech right to market drugs for unproven uses. These threaten the system that the FDA has used for decades to develop the evidence we need to understand whether drugs work. Nonetheless, citing these cases, the FDA appears poised to substantially deregulate drug marketing. New commercial speech doctrine may also be the demise of a law passed recently to protect consumers from misleading claims about supposedly low-risk tobacco products. E-cigarette companies (mostly backed, apparently, by big tobacco) argue that Congress doesn’t have the power to force them to validate claims that their products are low risk, though we know relatively little about their long-term implications.
The logic of these cases could go quite a bit further, even undermining the FDA’s ability to regulate medicines and tobacco altogether. I don’t spell out the many possible implications for food, supplements, and cosmetics, but you can read between the lines.
How did this happen? Here’s where law and political economy offers important insights. If we read the cases that build this new commercial speech doctrine, cases like Virginia Pharmacy and IMS v. Sorrell, with the literature on neoliberalism in mind, we see that they have been deeply shaped by market supremacist thinking. They mobilize images of markets, subjects, and the state that are not only contestable, but deeply undemocratic.
How we might we best respond to this new and rather ghoulish First Amendment? There are some excellent doctrinal arguments that could bring the courts back from the brink, as I describe in the essay. Importantly, though, these cases should also cause us to rethink our needs for public infrastructure. If courts thrust us into a world with more limited authority over private markets, we must envision a much more substantial role for the public—in this case, for example, by expanding public funding for health research. This approach would sidestep recent court decisions in addition to having far-reaching benefits for health democracy or health justice. It is also an instance of a broader point. By undermining public-oriented regulation of private companies, the advance of market supremacy inside of constitutional doctrine paradoxically pushes the campaign for democratic control up a level. New public infrastructure that displaces or routes around an increasingly ungovernable private sector would, in addition to cutting out the profit-oriented middleman, more easily brush off a Lochnerized First Amendment. The parallels to Medicare For All—spurred on by attacks to the ACA—are easy to see.
The piece was a response to the superb conference and volume on “Free Expression in an Age of Inequality” put on recently by Columbia Law School, Columbia Law Review, and the Knight Institute. If you’ve read this far, you’re incurable, and you should also check out the other pieces published as part of the symposium, especially Jed Purdy’s “The Bosses Constitution.” People often ask me for work describing how to “do LPE.” These two pieces provide possible examples.
Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School.