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What to Expect When You are Expecting a Lame Duck

September 16, 2016

The Senate’s website glossary defines a “lame duck” session as follows:

When Congress (or either chamber) reconvenes in an even-numbered year following the November general elections to consider various items of business. Some lawmakers who return for this session will not be in the next Congress. Hence, they are informally called “lame duck” members participating in a “lame duck” session.

With current negotiations on a Continuing Resolution that will run until December 9, we are increasingly certain to have a lame duck session to decide upon FY 17 funding. History is mixed on the likely result. Sometimes, Congress has still been unable to agree on funding and there is a subsequent CR that continues into February or March of the new Congress. Other times, without an election hanging over them, Members of Congress have been able to advance substantive appropriations bills (either as an omnibus or broken into minibuses).

The same dichotomy hangs over Congress’ other unfinished business — there may be a new spirit of cooperation (probably temporary) and important items (nominations and perhaps treaties, as well as bills) may move forward. Alternatively, agreements may not be reached and all the Congress’ remaining items will have to be considered anew in the new Congress.

How much Congress accomplishes will turn on macro-political considerations, not on the micro factors, such as what would make FDA a more effective agency. Yet FDA is likely to be caught up in the drama. Whether the agency receives level funding (FY 16) or the 1% increase envisioned by the House and Senate appropriations committees will be decided by the tone and spirit of the lame duck. Likewise, there are rumors that the House has identified “pay-for” monies to cover NIH (and possibly FDA) as part of a package that might involve passage of some or all of the 21st Century Cures legislation. Prospects for this to happen are as variable as the overall possibilities for lame duck.

Yet another consideration: after the election, President Obama will also be a lame duck. What he might do by executive order or speeding regulations through OMB is another big unknown after the election. FDA could definitely be affected.

In sum, FDA’s situation may look no different on January 1 than it does today or there still could be meaningful impacts from the lame ducks in Congress and the White House.

PS: For those like myself who have been wondering at the origins of the term “lame duck,” Wikipedia says it refers to a wounded duck that can’t keep up with the flock and is therefore more vulnerable to predators. From a political science perspective, it would seem that someone was very imaginative in making it a political term or something got lost in translation.

Note: This week’s Analysis and Commentary was written by Steven Grossman, the deputy executive director of the Alliance for a Stronger FDA.

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