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Three Possible Ways to Hatch an Egg

September 14, 2018

With the first minibus adopted (containing three appropriations bills) and a seemingly-clear pathway to passage for DOD/Labor-HHS, the rest of the seven appropriations bills fall into two categories. There is a minibus (containing four bills) that may yet be adopted before the House adjourns for the pre-election recess. Ag/FDA is part of that minibus, along with Financial Services, Interior-Environment, and Transportation/HUD. Then, there are three others (notably including Homeland Security) that will definitely not be resolved by October and will be covered by the CR until at least December 7.

At this point, there are three possibilities for Ag/FDA funding. First — and least likely — the Senate could add all or some of the four-bill minibus to the DOD/Labor-HHS bill when it takes it up next week. Expanding the DOD/Labor-HHS bill would depend on conferees having resolved all the remaining issues between House and Senate versions — which conceivably could be true of one or two of the bills, but not all four. While there had been talk about expanding the DOD/Labor-HHS bill earlier, there are no recent indications that leadership is considering this possibility. Further, it seems very unlikely that the Ag/FDA bill is, or would be, fully resolved by early next week given known disagreements. Altogether, this option is very unlikely, but can’t be completely ruled out. Either of the two other options is far more likely.

The second possibility is that Congress finds time to take up the four-bill minibus before the recess. Since the Senate may be in session for several weeks in October, the limiting factor is the House schedule. The long-standing House calendar has the Members working until October 12. The reality is that recess is likely to start much earlier. The House will be back on September 24. If it turns out that there is only one must-pass piece of legislation — the DOD/Labor-HHS funding bill containing the Continuing Resolution — then the House might adjourn as early as September 27. This would jeopardize passage of the four-bill minibus.

The third possibility is that Ag-FDA funding (and probably the entire four-bill minibus) is not adopted before the election and the FDA is under a CR until December 7. If the FDA is funded by CR, rather than appropriations, it means that FDA will largely have to spend its dollars on activities that were part of the FY 18 FDA budget/workplan. And any planned increase in FY 19 funding would be deferred until an Ag/FDA appropriations bill becomes law. This would constrain FDA’s ability to start and continue new programs, including those for which money was requested in the President’s FY 19 budget request.

As we have previously observed, if government funding (including Ag/FDA) goes into the post-election session unresolved, then (truly) anything can happen in the lame duck — from major shifts in spending to the extension of CR-funded government into the new year. Although not yet being discussed widely in Washington, the lame-duck session becomes totally unpredictable if Republicans lose their majority in the House, as may occur. Here is a summary of the very productive post-election session from 2010, the last time the House changed majority party. This suggests to me that an unpredictable post-election agenda is not inherently positive or negative with regard to the fate of legislation, including spending bills.

Editorial note: The Analysis and Commentary section is written by Steven Grossman, Deputy Executive Director of the Alliance for a Stronger FDA.

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