Back in December, Elon Musk led the charge to radically slim down government funding legislation, and stripped out a bunch of provisions, such as pharmaceutical reform, junk fee bans on ticketing and hotels, and deepfake porn protections. Since the news cycle moves so quickly, we’ve mostly forgotten about what happened.
But this episode is worth remembering not only because of the substance, but also because Musk, for better or worse, has a lot of political power, and Trump said he’s going to give him more of it. So how Musk operates, and the kinds of mistakes he makes along the way, matter. In this episode, there’s one provision that Musk prevented from becoming law that I don’t think was ever really reported, and that’s legislation that would have prevented consumers from being able to buy a chemical, concentrated sodium nitrite, that is often used by teenagers to kill themselves. It’s a shameful story, but one that could end well, if someone fixes this mistake.
Now, first, I have to offer a caveat. There’s a lot of anti-Musk sentiment out there, but I am not one of those people who reflexively dislikes Musk. His companies, as controversial and subsidized by the state as they are, do build rockets and electric cars instead of just monopolizing ad revenue, and some of the things he is doing in terms of government reform make sense. But he does make a lot of mistakes, and he does meddle in things in ways that are harmful without even knowing he’s doing it. And I think it’s important to point out what he’s doing, as he does have political power.
And with that, let’s go back to late December. At the time, Republican Speaker Mike Johnson had cut a just-before-Christmas deal with Democrats and the Biden administration to fund the government. Since Mitch McConnell established a weird filibuster-heavy Congressional process twenty years ago, the only way to get bills passed is to attach legislation that has already been accepted by most legislators to a “must-pass” bill, something which is “shut the government down,” war or debt-ceiling related.
In this case, Congress tossed a bunch of unrelated priorities into the government bill, almost all of which had gone through one or both Houses of Congress or were otherwise bipartisan supported consensus bills, but hadn’t made it into law because of random procedural obstacles.
As this government funding legislation headed to the floor, Musk intervened. He argued the bill was too long and full of corrupt special interest-dealmaking, demanding it be slimmed down. Republicans in Congress in turn revolted against the Speaker, and Johnson reneged on the deal he had cut with Democrats, threatening a government shutdown before Christmas if the bill didn’t have lots of stuff removed.
So it was. There were some provisions, like one that would have applied to Tesla’s investments in China, that it seems like Musk knew about and had killed. But it’s pretty clear that most of what was removed was done to just cut the length of the bill, almost randomly. For instance, one casualty was a bill to regulate pharmacy benefit managers, which are middlemen driving up the price of drugs. A few days after having the provision on PBMs removed, and feeling some heat over his actions, Musk tweeted the following:
I don’t know if he was being disingenuous, but this question suggests that Musk didn’t want to appear to have killed that provision.
Another example of legislation that had been part of this funding bill is the Youth Poisoning Prevention Act, a wholly uncontroversial bill that was set to go into law in that big package, and had in fact already passed the House and a Senate committee. The Youth Poisoning Prevention Act outlaws the sale concentrated sodium nitrite, a commonly used chemical for teenage suicide. Sodium nitrite in low concentrations is a food preservative. In high concentrations, it has no household uses, and is lethal if ingested.
The rationale for the bill is simple. In 2021, the New York Times did an investigation showing that certain suicide-themed online forums were popularizing the use of concentrated sodium nitrite, which has no household uses, as an “easily accessible method to die by suicide.” A 2021 toxicology publication based on data from the National Poison Data System showed that there was a rise in self-poisonings using sodium nitrite since 2017. This chemical could be bought on Amazon, the number one seller, as well as other online stores.
When this dynamic came to light, most e-commerce vendors stopped selling it, but Amazon wouldn’t until it faced public embarrassment and multiple lawsuits from families who lost their kids. It’s actually more horrible than it seems at first glance, Amazon would not only sell this product, but its recommendation engine would apparently suggest other companion products to make it easier to commit suicide. Even now, it is still legal to sell this suicide aid to consumers, and I’m told that though Amazon says the product is “temporarily unavailable” for regular accounts, it won’t commit to ending its sale permanently.
As a result, four states have now banned the sale of concentrated sodium nitrite, and Rep. Lori Trahan sought to do it nationally. Her bill passed the House and a Senate committee. It was uncontroversial and was going to be included.
But the Youth Poisoning Prevention Act was on page 243-245 of the bill that had, according to Musk, just too many pages.
So it got stripped out. Musk did it without even knowing he did so. He probably still doesn’t know.
That said, Musk isn’t all powerful, so it’s worth asking why no one stopped him. At the time, the Democrats controlled the Senate and the Presidency, so they had leverage. I asked a contact why Democrats agreed to Musk’s hostage deal, and he told me that Democrats didn’t think it was worth shutting the government down for a bunch of relatively small stuff that had bipartisan support and that would likely become law next Congress. Besides, Mike Johnson, who had lost credibility by offering the deal and then reneging on it after he couldn’t bring his caucus along, wasn’t likely to become Speaker again.
Well Johnson did become Speaker again. Does that mean these priorities – pharmacy benefit reform, banning junk fees for hotels and ticketing, youth poison prevention – are dead? No. It would surprise me if most of them didn’t come back, considering they all have strong bipartisan support. Still, Congress is a creature of inertia, and you do things because there’s momentum. If you miss your moment, sometimes it never comes back.
At the time, removing these provisions was considered a simple mistake, something that would inevitably happen by people elected to shake things up. I’m not opposed to aggressive action even if it produces mistakes, which are often fixable. But it’s been a little over a month of the new administration, and this bill can once again move through Congress easily and without muss or fuss. So what happened to those priorities dropped by the wayside for the silly reason the bill was just too long?
So far, nothing. We can expect Trump and Musk, in breaking so much stuff while centralizing power, to make a bit of a mess. The question is, will anyone bother to clean it up?
Thanks for reading!
And please send me tips on weird monopolies, stories I’ve missed, or comments by clicking on the title of this newsletter. And if you liked this issue of BIG, you can sign up here for more issues, a newsletter on how to restore fair commerce, innovation and democracy. And consider becoming a paying subscriber to support this work, or if you are a paying subscriber, giving a gift subscription to a friend, colleague, or family member.
cheers,
Matt Stoller
发表回复