OFFICE OF GOVERNMENT RELATIONS
Legislation and Policy Report
July 2008
WASHINGTON, D. C.
Congress spent July focusing on a federal shield law for journalists, an extension of low-income heating assistance, intelligence authorization, housing policy and regulation, and a package of energy-related bills. On the final day of the month they passed legislation to reauthorize the Higher Education Act. Members left town for their annual August recess and will return on Monday, September 8 following the Democrat and Republican conventions, which are scheduled the weeks of August 25 and September 1 respectively.
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Budget and Appropriations:
FY2008 Second Supplemental – Senate Appropriations Committee Chairman Robert Byrd (D-WV) announced that his panel would mark up a second FY08 supplemental funding bill on July 22 but then postponed the mark-up until September. The measure will address immediate funding needs – such as flood and wildfire abatement and recovery in the Midwest and West – along with some of the domestic spending that was added to the first FY08 supplemental in the Senate but dropped in final negotiations with the House and the Administration. Unverified reports indicate that additional funding might include infrastructure projects, low-income energy assistance, and food stamps. Senators Tom Harkin (D-IA) and Arlen Specter (R-PA), chair and ranking member respectively of the Senate Appropriations Committee have stated that they plan to include $500 million for NIH. Majority Leader Harry Reid (D-NV) commented that Senate floor consideration of such a bill would wait until September, while House Majority Leader Steny Hoyer (D-MD) stated that House Democratic leaders were interested in a second FY08 supplemental funding bill but that no decision had been made on moving forward.
FY2009 - Senate Majority Leader Harry Reid said in early July that the Senate will likely consider only two FY09 appropriations bills before approving a Continuing Resolution (CR) in September that would fund federal programs at current levels through early next year. Defense and Military Construction/Veterans are the expected bills. With the appropriations process at a roadblock in the House even those two bills may be added to a CR.
House – The House Appropriations Committee has approved five of its FY09 appropriations bills, but it remains unclear if the remaining seven bills will be considered in Committee at any time soon. Appropriations Committee Chairman David Obey (D-WI) suspended the process on June 26 during mark-up of the FY09 Labor/HHS/Education bill after Republican appropriators tried to bring up the Interior/Environment bill in order to force votes on amendments to expand domestic oil drilling.
Speaker Nancy Pelosi (D-CA) said that the House would approve the FY09 Defense funding bill regardless of Chairman Obey’s roadblock. The FY09 Military Construction/Veterans Affairs funding bill was approved by a House floor vote on July 30.
Senate – The Senate Appropriations Committee has approved nine of its bills. Chairman Robert Byrd (D-WV) intended that the panel will approve all 12 measures by the end of July, but Defense, Interior & Environment and Legislative Branch not completed. The Committee marked up its FY09 Energy & Water bill providing the $4.65 billion for the Department of Energy Office of Science (DOE OS) that was approved by the Energy & Water subcommittee. The total for the Office of Science is $210 million below the House subcommittee approved level of $4.86 billion and $70 million under the Administration’s FY09 request.
In a stand-alone bill, S. 3272, Senators Tom Harkin (D-IA) and Arlen Specter (R-PA) introduced S. 3272 to provide an additional $5.2 billion in FY08 funding for NIH. The measure is intended to restore the purchasing power that NIH has lost to inflation since its budget doubling was completed in FY03.
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Defense:
Fundamental research results – The Undersecretary of Defense has issued a memorandum to the military services and defense agencies reiterating that the Department of Defense (DOD) will not restrict disclosure of basic and applied research results unless the research is classified for national security reasons or otherwise restricted by statute, regulation or executive order. The June 26 memorandum reaffirms that the National Security Decision Directive 189 (NSDD-189) remains “the national policy for controlling the flow of scientific, technical and engineering information produced in federally funded fundamental research at colleges, universities, and laboratories.” This is a positive development for universities that conduct basic and applied research for DOD.
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Higher Education:
Higher Education Act reauthorization – Congress approved the conference report for the H.R. 4137, the reauthorization bill for the Higher Education Act. President Bush is expected to sign the bill although the White House has criticized the package for creating new programs that are duplicative. The HEA has not been fully reauthorized since 1998 and the current reauthorization process has been underway for the past seven years. A summary and analysis of the 1,100page bill will be available at a later date.
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Immigration:
E-Verify – A group of employment, human resources and higher education associations wrote to House leaders urging them to ensure that changes are made to legislation extending the E-Verify pilot program before it expires in November. Although hearings in the House Judiciary and Ways and Means Committees have demonstrated serious problems with the current pilot program – such as errors in the Social Security System databases used for verification and the potential for fraud and identity theft – pending legislation would simply extend the program without addressing these shortcomings.
The House bill would extend E-Verify for 10 years. In the Senate, E-Verify legislation (S. 3257) was introduced mid-month that would extend the program for five years.
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Intellectual Property:
Orphan works – Orphan works legislation, which aims to balance the ability to make use of copyrighted works whose owners cannot be found against the interests of copyright owners, appears stalled in both the House and Senate Judiciary Committees.
The House Judiciary Committee postponed markup of its bill, H.R. 5889, which had been schedule for July 16 because the user groups the bill is intended to assist oppose two key provisions. Specifically, the libraries, museums, universities and other user groups cannot support proposed language regarding the “best practices” for undertaking a qualifying search for the copyright owner, nor proposals offered by some copyright owner groups to allow injunctions in certain cases, which would undermine the basic structure of the bill.
Reports indicate that the bill would have incorporated language to address concerns about state sovereign immunity. In absence of support by user groups, the Committee seems disinclined to move the measure. User groups have indicated a willingness to continue to work with Committee staff and other interested parties to address the outstanding concerns, but it is not clear if work will continue.
The Senate bill, S. 2913, which was reported from the Senate Judiciary Committee in May reportedly has not gone to the Senate floor because several Senators have placed holds on it. Committee staff are said to be working to clear the way for floor consideration. However, several higher education groups would continue to oppose the bill if it fails to include language to address concerns about state sovereign immunity. It also contains problematic provisions on qualifying search similar to those in the house bill.
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NASA:
Hubble Space Telescope refurbishing – This fall NASA astronauts will take a final space shuttle trip to refurbish the aging Hubble Space Telescope (HST). The mission, scheduled on October 8, will be the fifth trip to repair or refurbish the orbiting telescope, which has been circling Earth about every 97 minutes since it was launched in April 1990. The planned 11-day mission is slated to install new equipment and repair broken instruments during five spacewalks. NASA expects that the upgrades will help Hubble serve the scientific community’s needs through 2013 and until the James Webb Space Telescope is launched.
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Research:
Troublesome clauses – The Association of American Universities (AAU) and the Council on Government Relations (COGR) released a report which shows that federal research agencies, particularly in the Department of Defense (DOD), are adding clauses to fundamental research contracts and grants that inappropriately restrict publication of research results and participation of foreign nationals.
The findings of the report reinforce those of the National Academies of Science 2007 report, “Science and Security in a Post 9/11 World,” which similarly found increasing use of the “sensitive but unclassified” category and other restrictive language in federal agency contracts for fundamental research.
The new report demonstrates that despite the concerns and recommendations contained in the earlier report, the situation among federal funding agencies has not improved over the past four years. Federal research funding agencies have not only expanded the nature of the controls imposed on award terms but have extended such terms beyond contracts to grants and cooperative agreements. The link to the report is available on the AAU home page at: www.aau.edu
Dual-use biological research oversight – A group of six higher education associations submitted comments to the National Science Advisory Board for Biosecurity (NSABB) regarding the Board’s proposed framework for identifying and managing “dual use” biological research. Dual-use biological research is defined as research that could be misused to threaten public health or national security.
The proposed framework, which has been formally submitted to the White House and Department of Homeland Security (DHS), calls for researchers and research institutions to increase their efforts to identify “dual-use research of concern” and outlines ways that institutions should establish and implement internal oversight policies. A copy of the associations’ letter is available at: www.aau.edu
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Taxes:
Estate taxes – Rep. Jim McDermott (D-WA) introduced HR 6499 that would re-establish a modified estate tax, now set to expire in 2020. The bill would retain the tax’s repeal for estates of $2 million or less while larger estates would be covered through a sliding tax scale.
The impact of the estate tax on charitable donations has been debated for years. Supporters say most studies show that without the tax, overall charitable giving would drop and the deficit would increase. Opponents say that eliminating the tax simply give individuals m re control over their money, allowing them to donate as they wish and freeing up funds for private sector investment. Hill watchers believe that bill has no opportunity to move in 2008.
Tax extenders – The Senate again failed to approve a package of popular tax extenders (S. 3335) after Democratic leaders were unable to achieve the 60 votes required to proceed on the bill. Among issues remaining unresolved between the parties is whether and how to include revenue-raisers to offset some of the tax extenders. Republicans would like some of the expiring provisions, such as the research and development tax credit, extended for a longer period of time or made permanent. Senate Finance Committee Chairman Max Baucus (D-MT) stated that the bill will be revisited in September. The House approved its version of the extender bill (HR 6049) in May.
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Odds and Ends:
Medicare physician payment relief – Congress has passed Medicare legislation that reverses the 10.6 percent cut in physician payments that was implemented July 1 and averts a projected 5.4 percent cut in calendar year 2009. The language extends through December 31, 2008 a 1.1 percent increase for next year.
The bill includes a phase-out of indirect costs of medical education from Medicare capitation rates. The measure also addressed cost-sharing for clinical trials, allowing the Department of health and Human Services (DHHS) to develop alternative methods of payment for items and services provided under clinical trials and comparative effectiveness studies.
False claims legislation – The House Judiciary Committee marked up and approved the False Claims Correction Act of 2007, H.R. 4854. The higher education community has been especially concerned about provisions that would significantly increase institutional liability in the event of overpayments and make institutions significantly more vulnerable to lawsuits.
During the mark-up Committee members discussed university concerns about the unintended consequences of the legislation. Rep. Howard Berman (D-CA), sponsor of the bill, offered a manager’s amendment that partially addresses the overpayment and statute of limitations issues raised by the community but leaves unchanged provisions on the public disclosure bar and pleading rules for relators.
Regarding overpayment, the manager’s amendment would require that intent to defraud be proved but does not acknowledge existing reconciliation processes followed by universities, the Department of Health and Human Services, and the National Institutes of Health. The statute of limitations provision in the manager’s amendment essentially would split the difference between current law and the original draft, setting it at eight years.
Competitiveness – A group of 15 business organizations known as “Tapping America’s Potential” released an update on their goal to double the number of STEM graduates with bachelors degrees by 2015. The report, Gaining Momentum, Losing Ground, includes calls for funding levels consistent with those authorized in the America COMPETES Act and expanding STEM education programs.
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THE BUCKEYE STATE
The General Assembly is in recess until September.
Board of Regents: Chancellor Eric Fingerhut continues to restructure and reorganize the OBR professional staff. The Chancellor has created six vice-chancellor positions to oversee academic issues, economic advancement, finance, technology, affordability and efficiency, and research and graduate programs.
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Comings and Goings:
Paolo DeMaria, associate superintendent at the Ohio Department of Education, has resigned to join the Ohio Board of Regents as executive vice chancellor, serving as Chancellor Eric Fingerhut’s right hand man.
Lakewood City Schools Superintendent David Estropp has stated publicly that he is seeking the Ohio Superintendent of Schools position which was vacated recently by Dr. Susan Zelman.
State Senator Bob Spada (R-North Royalton), who is term-limited and was the Republican candidate in the House District 18 race, has withdrawn. He is expected to accept an appointment by Governor Ted Strickland to serve on the State Employment Relations Board.
Former US Attorney D. Michael Crites has been selected by the Ohio Republican Party to challenge State Treasurer Richard Cordray (D) in the Ohio Attorney General’s race in November.
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LOCALLY… Cleveland State University President Michael Schwartz has announced that he will retire in June 2009.
Lois Margaret Nora, MD, president and dean of the College of Medicine for the Northeastern Ohio Universities College of Medicine and Pharmacy, announced that will not extend her contract beyond December 31, 2009.
There will be no August report.
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Sources of information for this report include the Association
of American Universities, American Institute of Physics, the
Chronicle of Higher Education, the Association of Independent
Colleges and Universities of Ohio’s updates and reports,
newspapers, political and legislative wire services, and others.
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