The Honest Truth About Dishonesty: How We Lie to Everyone--Especially Ourselves

Since my current field is law, I delved deeper into Ariely's explanation on research about conflicts of interest in law.  The conflicts of interest research is relevant for how we think about campaign finance law.  We intuitively think that politicians will be beholden to large campaign donors.  So, traditionally we have put limits on campaign contributions.  The rationale of legislation like McCain-Feingold was that campaign donation limits will prevent politicians from being captured by lobbyists and special interests.  The current Supreme Court disagrees with campaign finance restrictions because the majority sees such restrictions as an infringement on free speech.  In the oral arguments before the Supreme Court for recent campaign finance cases, certain justices repeatedly cited the fact that there were no examples of politicians returning a favor in exchange for a large campaign donation.  In other words, there was no actual evidence of corruption.  Those justices cited the lack of corrupt politicians as evidence that campaign finance restrictions are superfluous (the majority of justices did not accept the common sense rationale for campaign finance restrictions that there is a risk where if "You grease my back, I'll grease yours").  If those members of the Supreme Court who proceeded to open the flood gates for money in U.S. elections are intellectually honest, they will grudgingly accept the counter conclusion in this book.  Ariely concludes that money leads to a serious conflict of interest, if not overt corruption.

The case against super PACs get even stronger, or if you are member of Congress, even worse. Ariely's research indicates that when people who are part of an in group cheat, this creates a moral problem which leads other members of the in group to cheat. Therefore, in the period before the Supreme Court legalized unlimited donations from corporations, individuals, and unions to political action committees, there was already misuse of campaign funds.  Even before super PACs legalized corruption (or at the very least created severe conflicts of interest), PAC funds found their way into strip clubs, babysitters' pockets, bars, and other non-campaign related hands.  Shame hasn't worked.  Congress passed disclosure laws in 2006 to curb these tawdry practices.  Instead, the disclosure of these facts has normalized misuse of PAC money among Democrats and Republicans alike.  The research on super PAC money is not yet robust enough to find similar bad practices, but Congress might try methods of close supervision (or changing the nature of group collaboration, as Ariely suggests) rather than just disclosure laws to encourage legal and moral behavior (especially since the social effects of cheating [and even altruism!] are stronger than the effects of close supervision to discourage cheating).

My argument to the current Supreme Court is that campaign finance legislation is necessary and constitutional because unlimited campaign donations lead politicians to actual conflict of interest and leads to a political atmosphere permeated more than ever by the threat of corruption.  The study Ariely cites as showing the conflicting influence of money is the following: people were invited to choose which painting was better; before they chose, they were told that one of two museums had paid for their participation in the study; then, the paintings were displayed alongside a small logo of the museum where the painting came from; finally, the participants were put through an fMRI in order to analyze what was happening in their brains as they chose.  The results were that the participants favored paintings from the museum that paid for them despite the fact that they were going to be paid no matter what painting they chose as being better.  The other key result was that the favoritism toward a painting increased as the museum paid the participant more money.  Finally, analysis of the fMRI results showed that the favoritism toward the museum patron was not just a choice but also a biological preference in the brain.  If we extrapolate these same results to the now legal Super PACS (whereby people, corporations, and unions can make unlimited donations to a political action committee that cannot coordinate with a politician, but that can advocate on behalf of a politician or about an issue), we realize that the largest patrons are doing more than exercising their free speech rights.  Rather, simply by opening their wallets, the largest patrons biologically and directly affect the way politicians think and make decisions.  Campaign finance laws ensure that politicians act on behalf of the public and not their patrons.  The Supreme Court has created a world where the patron is king (not to mention the opportunity cost of having to attend fund raisers to pay for elections).  If the Supreme Court will not reverse itself on this issue, advocates of a constitutional amendment or new legislation on campaign finance would be wise to cite this book to counter the argument that there are no real world examples of corruption because of campaign donations by large patrons.

If future campaign finance legislation advocates cite this book, then so should anyone who is arguing for limits on big Pharma.  In a recent Supreme Court decision, the Court struck down Vermont's law that attempted to stop pharmaceutical companies from accessing the lists of the medicines that doctors were prescribing to their patients.  Pharmaceutical companies use this information to see what doctors they should market to.  It is like Google Chrome tracking every website you visit.  However, in Vermont (and probably every other state) doctors had no incognito mode to prevent pharmaceutical companies from accessing this information.  Enter Vermont's new law.  The law stopped pharmaceutical companies from accessing doctors' prescribing habits from pharmacies at the point of sale.  In passing restrictions on pharmaceutical companies' ability to obtain this information, the Vermont legislature reasoned that the law would incentivize pharmaceutical companies to present doctors with good information on why their medicine was more efficacious.  In a world where doctors practice evidence based medicine, allowing pharmaceutical companies to get information on doctors' prescription habits incentivizes manipulative marketing instead of good evidence.

The Supreme Court did not see this as an administrative decision by the Vermont legislature (as Justice Breyer saw it), but rather oddly as an infringement on pharmaceutical companies' 1st amendment commercial speech rights (the thinking was that there was no rational reason why research universities could access this information but pharmaceutical companies could not).  The Supreme Court struck down Vermont's law and reasoned that if doctors did not want to interact with pharmaceutical reps, the solution was to close their doors to reps and not to prevent the free flow of information to them.  Critics of this decision have said that this decision is a sad display of the current Supreme Court's overt corporate favoritism.  However, the more pernicious problem that I see is that the majority in the Supreme Court have indicated through this decision that they are better at picking winners and losers (here, pharmaceutical companies as winners and individual doctors as losers) than are state legislatures.  If the Supreme Court is now comfortable with foraying into economic decisions (despite the disaster that was the Lochner era - the last time the Supreme Court justices inserted themselves into economic legislation), then it should also take into account behavioral economics research.

Vermont was not trying to stop pharmaceutical companies from freely operating.  Rather, Vermont was employing behavioral economic theory in trying to incentivize good marketing practices.  In a world where pharmaceutical companies cannot access doctors' prescription habits, a company has to market its drug through peer reviewed studies showing that its product is more effective than the competitor's product.  As explained in this book, the current practice that medical device and drug reps use is to provide lots of freebies to doctors, nurses, and even receptionists so that they will look favorably on their product.  If a doctor likes a particular female rep or is a fan of the military, that female rep or a veteran of the military will be at the doctor's office the next week.  Reps are brilliant chameleons who change political affiliations to match the doctor, play basketball with the doctor, take the doctor out to a ballroom dancing class, and of course have the doctor make presentations at conferences about their product so that they will convince themselves about the efficacy of the product.  In short, big pharma's reps do every thing short of offering a quid pro quo to get the doctors' sale.  However, pharmaceutical reps are not scientists who offer an unbiased view of their product, nor do their companies pay them to be neutral.  Now, after the Supreme Court struck down Vermont's modest measure aimed at incentivizing fair marketing practices, pharmaceutical  reps will not only continue to use skewed marketing practices against doctors, but they will push the envelope to the edge of dishonesty knowing that the Supreme Court has their backs.  Closing the door on pharmaceutical reps is not a feasible solution because doctors still need medical devices and drugs for their patients.  Now, doctors have to make decisions based on uneven information since research universities and the FDA do not have enough funding to do studies on all devices and medicines.

The impact of this book on the law does not end there.  If you have a parole hearing coming up, your attorney would be wise to make sure it occurs as first thing in the morning or right after lunch time.  The reason for these being the optimal times for a petition is that judges on parole boards tend to most often grant parole when they are most refreshed.  The default decision by boards is to reject parole, and as the officers make decisions throughout the day they expend the energy needed to override the default feeling.  This decision making energy is highest in the morning and after lunch.  Some political leaders, like President Obama, seem to grasp this research.  President Obama has others make the decision for him on easy tasks (like what he will eat), so that he will have more brain energy to expend on the important decisions. I will try to be similarly mindful of the research on depletion and the other research this book explores.