Can Congress Muster the Will to Compromise ... on Something?

As Congress heads off for August recess, the regular FY 15 appropriations process has stalled. Prospects can only be described as dim for action before the election. It is, of course, always possible that September will bring renewed interest in compromises. We know for sure that House Appropriations Chair Hal Rogers and Senate Appropriations Chair Barbara Mikulski will be trying hard to resuscitate the 12 regular appropriations bills that are in various stages of moving through Congress.However, it is time to start talking about short-term funding through a Continuing Resolution (CR) and its likely impact on FDA. Here are some of the basics:

• Level of the CR. The last few times, CRs have set funding at the level of the previous year. In this case, the FY 15 CR would set funding at the FY 14 levels. However, this is not automatic. There was a time when CRs might be set at the higher (or lower) of the House and Senate’s proposed levels for the new fiscal year. In the current political environment, it is also possible that some Members of Congress will advocate for the FY 14 funding levels minus some fixed percent. While the FY 14 level is the most likely, we will be keeping a close eye on what is being proposed.

• Duration of the CR. A CR might only continue funding for a day or a week until an agreement is reached or it could fund the government for an entire fiscal year. Unless there is more brinksmanship on September 30 about shutting down the government, the CR is most likely to extend until mid-November or early December to allow time for Congress to return to DC after the election. They would then negotiate on appropriations bills, an omnibus bill or a CR. If it’s an omnibus bill, it will contain full appropriations bills for some parts of the government and a CR for the rest. If they are unable to agree during the lame duck session, then there would likely be a need for another CR, which would probably extend funding until February or March. In no case would we expect it to go past March 30, the end of the first half of the fiscal year.

• Limitations on New Starts. The “continuing” part of “continuing resolution” really does mean that agencies are supposed to continue their prior year programming and not engage in new starts. As a practical matter, there is considerable leeway in how this is interpreted for different agencies and different circumstances. However, OMB is far more likely to strictly interpret “no new starts” than it is to interpret it loosely.

• Need for Anomalies? Sometimes bad, unintended outcomes can result when a CR continues funding and limits new starts. For example, if Congress has not yet re-authorized a program that expires September 30, then it would get no funding under a CR. To remedy this, OMB will submit a list to Congress of so-called “anomalies” that must be addressed with legislative language (such as “notwithstanding the expiration of the authority for program X, it shall be funded at its prior year level under this CR”). The Hill often has its own list of anomalies and is not required to use the OMB list. As to FDA, it has not yet been established what, if any, anomalies FDA will need.

If you are thinking: "This isn’t good for FDA," then you are right. FDA’s mission and responsibilities continue to grow, as does the backlog of work from underfunding in prior years. Despite this, money under the CR will be extraordinarily tight (i.e. no-growth), many vacancies will have to wait to be filled, and some degree of disruption is inevitable. Worst of all, the uncertainty created by a CR is destructive to the agency’s efforts to plan ahead and to efficiently allocate dollars and employee time.The FDA’s best hope is that Congress can muster the will to compromise on at least a few appropriations bill and that Ag/FDA will be one of them. It doesn’t matter whether it passes as a stand-alone or is wrapped into an omnibus. With the new fiscal year beginning in 8½ weeks, the endgame is likely to be politically complex.Note: This week’s Analysis and Commentary was written by Steven Grossman, the deputy executive director of the Alliance for a Stronger FDA