Will This Year’s Lame Duck Conduct “Business as Usual”?

Unless an appropriations bill passes in November, FDA will be funded by a Continuing Resolution (CR) until December 7. Under the CR, FDA is largely limited to continuation of activities that were part of the FY 18 FDA budget/workplan. This would constrain FDA’s ability to start and continue new programs, including those for which money is likely to be included in the FY 19 appropriation. In practice, there is some leeway, but the agency has to be able to justify its spending decisions against the metric that a CR, quite literally, provides for continuation of programs and not more.The four-bill minibus (which includes Ag/FDA funding) was allegedly close to being completed during the last week of September. We are hopeful that Congress will be ready to vote final passage when they return in November. However, this quick passage scenario assumes a “business as usual” situation after the election.

That might not occur. When government funding bills (including Ag/FDA) go 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.

The notable feature of post-election sessions is that, through retirements and election losses, some Members will not be in the new Congress in January, yet will get to vote in November and December. Sometimes (not always), big plans for lame ducks fizzle when those Members feel the full weight of no longer having a mandate to make important decisions for the American people.The election will also reset the Republican/Democratic balance in both the House and Senate. The resulting dynamics are straightforward, although they can get quite complicated in practice.

Majority parties want to accelerate legislative action if they lose control of the body or will have a narrower margin in January. They will want to defer legislative action if they will have a larger majority in the new Congress.If -- as most pundits are predicting now -- the Senate stays Republican and the Democrats take the House, then we can expect heavy pressure on Speaker Ryan to pass anything and everything that advances Republican positions or that handicaps the new Democratic majority when it is seated in January. Senate Majority Leader McConnell will also be looking at his list, trying to move items that will never pass once he has to deal with a Democratic House.All of this maneuvering would be complicated by the likely fight to be Ryan’s successor among leading House Republicans and the certainty of a fight over border wall funding when Congress considers the Homeland Security appropriations bill.

I am not predicting the House will turn or anything else -- just pointing out this year’s lame duck might not be “business as usual.” Depending on the scenario, it is possible that the four-bill minibus could drop off the radar screen, even if fully negotiated.

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