On Monday, June 22, the U.S. Supreme Court invited a brief from the Executive Branch in PhRMA v. O’Day. This call for the views of the solicitor general (CVSG) is relatively rare. Of the thousands of petitions filed with the Court, about a dozen get CVSG’d each Term.

The Court issues a CVSG before granting review—so it’s a signal that the Court is thinking about taking the case—but would like the federal government’s input first. It’s kind of a “sanity check”—is this case truly a good vehicle for certiorari, are there important federal issues that may have been missed in the parties’ briefs. And usually the Court proceeds with cert after issuing the invitation—“roughly 70-75% of cases that receive a CVSG are eventually granted.”

PhRMA v. O’Day is about constitutional limits to mandatory disclosure. Disclosure is the feckless legislator’s favorite tool. Rather than ban a practice (which might be politically difficult or economically costly) or accept that government intervention would only make things worse (ignoring popular demand to “do something”), disclosure offers a middle course. It’s cheap: at least for the government, which just creates new forms and relies on others to fill them in. (Also generating work for compliance attorneys and creating cases for prosecution when actors inevitably struggle with a complicated reporting scheme.) As a result, the trade-offs stay hidden in a way that, say, price controls can’t. And, best of all, it allows a politician to tell the electorate she did something.

Of course, in constitutional grammar, disclosure goes by other names. It’s compelled speech, at odds with the First Amendment’s unambiguous defense of “the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). It often infringes on privacy—it’s literally the government prying into things typically kept private. And, given that ideas (like trade secrets) can be property, mandatory disclosures can violate the Fifth Amendment, which fences private property from state seizure limiting the government to taking it for “public use” and only if it pays fair market value for it.

So back to PhRMA v. O’Day. PhRMA (full name: Pharmaceutical Research and Manufacturers of America, a trade association for the drug industry) is squaring off against Sean O’Day, the director of the Oregon Department of Consumer and Business Services. Mr. O’Day enforces the so-called Prescription Drug Price Transparency Act, an Oregon statute that does far more than what’s in that title.

Under the law, a drug company must report the “factors that contributed to [certain] price increase[s].” Or. Rev. Stat. § 646A.689(3)(c). The State interprets that to mean a company must give “a narrative description and explanation of all major financial and nonfinancial factors that influenced the decision to increase the wholesale acquisition cost of the drug product and to decide on the amount of the increase.” Or. Admin. R. 836-200-0530(h)(2).

That’s a long way of saying: “Tell us everything you can, quantifiable and otherwise.” Bad enough—as just one problem, how can one ever be sure they’ve reported all the appropriate metaphysics behind a pricing decision in enough of a narrative to avoid the Act’s harsh civil penalties? Or. Rev. Stat. § 646A.692(2). But these reports don’t stay on the desk of some nameless bureaucrat at the Department of Consumer and Business Services. They go online unless a state official decides “the public interest” precludes the disclosure. Or. Rev. Stat. § 646A.689(9)(b).

In short, to “do something” about drug prices, Oregon forces a business to explain to its competitors why it prices things the way it does. Trade secrets aren’t immune to this requirement. Id. § 646A.689(10)(a)(B). It’s no exaggeration to say that Oregon’s disclosure regime works the same harm as corporate espionage. That’s poison for any firm trying to meet markets and make profits. Maybe that’s the actual goal of Oregon’s law—but America would be a far poorer and much sicker place without the tremendous advances in health and longevity that have been secured by our cutting-edge pharmaceutical companies.

Naturally, the Ninth Circuit upheld all this. In doing so, the court treated the State’s compulsion as a garden-variety business regulation—more like nutrition labeling than forcing a company to forfeit trade secrets and the ability to set prices in response to competitive market forces (dulled though they have been by massive government overregulation in the pharmaceutical space). As an excellent amicus brief filed by Erin Murphy for xAI notes, if Oregon’s law is constitutional, that means the government can force any private actor to fork over any information the State thinks consumers might find interesting. This won’t be limited to big, bad drug companies—but any firm or industry that becomes unpopular enough with a critical mass of voters.

So here’s hoping that the CVSG foreshadows a cert grant to come. And reversal on the merits.