It sounds like a regular attack ad with a familiar voice and music.
“We need health care innovation more than ever now,” the ad says. “But Sen. Tillis wants to change section 101 of the Patent Act. If he does, costs for companies manufacturing COVID tests could skyrocket.”
But the ad is paid for by an unlikely group: the American Civil Liberties Union.
The ACLU, for almost all of its 100-year history, has supported civil liberties for people on both the left and the right, including for groups it abhors, like neo-Nazis.
But starting two years ago, the ACLU also moved into the political arena. And one of its first efforts was in Mecklenburg County.
“Supposedly we were a test market,” said former Mecklenburg Sheriff Irwin Carmichael, whom the ACLU targeted with radio ads for his support for the 287(g) program that allowed deputies to perform basic immigration duties.
Carmichael, the incumbent, finished third in the Democratic primary in May 2018.
“They were coming in and testing our election,” he said. “And I know they invested $175,000 into unseating me as sheriff of Mecklenburg County.”
The ACLU’s involvement in Mecklenburg’s sheriff race was indeed a test run. It then ran ads in favor of Democratic Georgia gubernatorial candidate Stacey Abrams in 2018 and against Kris Kobach, a Republican running for governor in Kansas.
Now it’s back in North Carolina. It’s focused on the state’s high-profile U.S. Senate race between incumbent Republican Thom Tillis and Democrat Cal Cunningham.
The ACLU’s issue with Tillis is over genetics — specifically whether genes can be patented.
The U.S. Patent Office has historically granted patents to companies that were able to identify and sequence a particular gene. But in 2013, the Supreme Court heard a case known as Association for Molecular Pathology vs. Myriad Genetics.
Myriad, a pharmaceutical company, had patented two genes, known as BRCA1 and BRCA2. Mutations of those genes were correlated with a higher risk of breast and ovarian cancer.
In 2013, the ACLU sued Myriad on behalf of 20 plaintiffs. ACLU senior attorney Kathleen Ruane says granting patents to genes allows one company to corner the market on testing for a particular gene.
“We won that case,” she said. “The Supreme Court determined that genes, human genes, even when they are isolated from the human body, are products of nature.”
Tillis, who chairs the Senate Judiciary Committee’s Subcommittee on Intellectual Property, has introduced legislation that would make it easier for drug companies to receive such patents. Delaware Democrat Chris Coons also supports the bipartisan legislation.
The ACLU has lobbied against it.
“I do think it may be the first time we have run ads about it to try to broaden our concerns related to the communications about the issue,” Ruane said. “These ads are about trying to get Sen. Tillis to commit to not to pursue the amendments to section 101 because we see them as very dangerous.”
But there are critics who argue the ACLU’s increased political involvement is dangerous. One is the organization’s former director, Ira Glasser. He was the ACLU executive director from 1978 to 2001.
“I think it’s strategically weakening its mission,” he said on "60 Minutes" last year. “I think the best strategy for protecting civil liberties is not to be partisan.”
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