December 2001 -- Ayn Rand 's Atlas Shrugged portrays a corrupt American government populated by "looters" with suggestive names like "Cuffy Meigs" and "Wesley Mouch." The "looters" are blindly rapacious power-seekers who see the entire world as a candy shop. The challenge of life, for them, is to seize as much of the goodies as they can as fast as they can: devil take the hindmost and never a thought for tomorrow.
American politics has not fallen so low as yet. But if there were any doubt that there are real-life looters in Washington, we had ample and grim confirmation during October. While the House of Representatives was ignominiously decamping in the face of the anthrax scare, Senator Charles Schumer (Democrat of New York) stood his ground in the capital to push for theft. The supposedly pro-business Bush Administration resisted the call for about a week, but joined into the game of expropriation as soon as they had to defend their alleged principles in public. The loot this time was ciprofloxacin, the broad-spectrum antibiotic that Bayer A.G. had discovered and patented in the 1980s.
In October of 2001, ciprofloxacin became a buzzword under its brand-name, Cipro, due to a not-entirely rational sequence of misinformation and media hype in the wake of the postal anthrax attacks. The misinformation arose out of the language of bureaucrats at the Centers for Disease Control (CDC) and the Food and Drug Administration (FDA). Anthrax is a bacterium, one that does not usually infect humans. It has not had a chance to develop antibiotic resistance, and so several antibiotics are effective against it, including penicillin and doxycyclene as well as Cipro. In fact, in a pinch, there would probably be a larger number of effective, if unauthorized, treatments using related drugs. Anthrax has received so little attention that few firms have bothered to undertake the costly trials that the FDA requires before it will sanction a medicine. With all these drugs available, then, why was there such a fanatic focus on Cipro?
In the mid-1990s, the FDA labeled Cipro as a treatment for "inhalation anthrax." This, along with the fact that Cipro is a newer and highly potent antibiotic, led the CDC to place Cipro at the head of the suggested course of treatment for anthrax. In the executive-digest world of press releases and television news, these factors were key to the media frenzy. In mid-October anthrax-laden letters were wreaking havoc at the Congress and at TV news offices. In these circumstances the news media, which focuses primarily on disasters, politics, and itself, was instantly preoccupied with the anthrax threat. Looking for a sound-bite solution, journalists found Cipro: two snappy syllables at the top of suggested treatments for the disease. When NBC's Tom Brokaw declared, "In Cipro we trust" on October 15, he gave the concrete-bound mentalities in Washington something they could get a hold of. Now the politicians didn't need to consider the medical science behind the situation. Now they could launch a new policy initiative to show their vigor in times of crisis.
A looter knows what to do to take action: use force to grab the goods, pronto. The Canadian Health Minister was the first Cipro looter on record, announcing that Canada would break Bayer's patent to secure an inexpensive domestic source of ciprofloxacin from a generic drug company. (This despite the fact that no anthrax attacks have taken place in Canada: so much for Canadian cultural independence.)
Looting Bayer then became an epidemic in its own right, sweeping south over the New York border to infect that state's senior senator. "We cannot just rely on Bayer to ensure we have a sufficient supply of Cipro," Schumer announced on October 16. "First, Bayer can only produce so much Cipro, and we should not put our best response to anthrax in the hands of just one manufacturer. Second, buying Cipro only from Bayer — who charges a lot more than generic manufacturers would — means we spend a lot more and receive a lot less." Schumer wanted the government to contract directly with generic drug producers to violate Cipro's patent, and hope that Bayer wouldn't dare challenge the theft in court. It was a looter strategy Ayn Rand would have appreciated: cloaking theft in the aura of an urgent public purpose and hoping that the victim would give his moral sanction to the robbery.
The Bush Administration, in the person of Tommy Thompson, secretary of health and human services, resisted Schumer's call. Perhaps spurred by some appreciation of the distinctive principles of American government and perhaps also bolstered by the influence of big donations from pharmaceutical companies, Thompson explained that the U.S. had a system of patent law for a reason: so that the inventors of drugs like Cipro would have an incentive to produce the goods in the first place. He might have added: so that the moral rights of creators would receive a modicum of respect. As Ayn Rand put it: "Patents are the legal implementation of the base of all property rights: a man's right to the product of his mind." (Capitalism: the Unknown Ideal, 130) If an inventor has no right to exploit his invention, it is hard to see what basis anyone has for a property right.
But as new cases of anthrax emerged and the media obsession with Cipro alone took hold in the public mind, the pressure on the Administration rose. American conservatives have never been able to defend property rights on moral grounds. Their inner instincts usually amount to altruism, and indeed this kind of moral treason to the principles of economic liberty has been a matter of pride to the "compassionate conservatives" of both Bush Administrations. True to character, by October 24 Thompson had ingeniously compromised his original position: the Administration would avoid breaking Bayer's patent by bullying Bayer into supplying all the government's Cipro needs at bargain-basement prices. Thompson declared that he was ready to ask Congress to approve the use of a generic version of ciprofloxacin if Bayer did not lower its price. "The price is the question, not the supply," he told a congressional hearing. Bayer accommodated this forced donation by scrambling to settle contracts with the American and Canadian governments that would transform Bayer from the proud holder of a valuable patent into a de-facto generic drug manufacturer. The looters had won: they had gained the sanction of the victim.
This lamentable spectacle had an ironic coda. In the midst of the Cipro mania of late October, the FDA had authorized the makers of doxycyclene and penicillin to re-label their drugs for use in cases of "inhalation anthrax" (in addition, as it were, to "anthrax" in general). To this merely rhetorical change, the CDC added a new scheme for fighting the bacterium, one that emphasized the need to mix different antibiotics. These changes caught the eye of the wire services: maybe there was more to the story than Cipro. The irony was complete when the Supreme Court's anthrax scare was treated exclusively with doxycyclene. But it was too late for Bayer. The damage had been done, the contracts, signed, the principles of patent law, betrayed. The deaths of the anthrax victims were tragic. But tragic, too, was the naked revelation of the media, politicians, and large segments of the public as looters-in-spirit, blundering blindly on like the villains of Atlas Shrugged to the next goods to be seized in the next crisis emerging out of the anti-conceptual hype.
This article was originally published in the December 2001 issue of Navigator magazine, The Atlas Society precursor to The New Individualist.