Appropriations Move Ahead

Congress has started the new fiscal year as it usually does with a short-term bill. However, full appropriations may not be enacted until next spring. And yet, another stimulus bill may infuse more money into technology programs.

Congress and the White House agreed to a short-term bill to fund the federal government and all its activities through mid-December, removing a contentious, must-pass issue from the list of pending items that might get enacted before the election. Talks are ongoing regarding another COVID-19 stimulus package, and House Democrats revised and passed their proposal without a single Republican vote.

Last week, the President signed a continuing resolution (CR) into law that would keep government agencies and departments funded at the same level as the previous fiscal year that ended on 30 September. It is customary in most years to pass a short-term CR to give the two bodies more time to work out a final package. However, it bears note that in the last two elections in which the White House changed parties (2008 and 2016), regular appropriations were kicked well into the next calendar year resulting in long-term CRs passed after the election. So, if former Vice President Joe Biden wins next month’s election, FY 2021 appropriations may not get sorted until next spring.

As noted, the “Continuing Appropriations Act, 2021 and Other Extensions Act” (H.R.8337) extends FY 2020 appropriations until December 11, 2020 at the same level that departments and agencies were funded in FY 2020 with some exceptions (aka anomalies.) There was the customary bar on using these funds for any programs or activities not approved for FY 2020, meaning any new programs proposed for FY 2021 could not be funded. This prohibition includes the Department of Defense (DOD), and the CR explicitly bars the use of funds provided for

(1) the new production of items not funded for production in fiscal year 2020 or prior years;
(2) the increase in production rates above those sustained with fiscal year 2020 funds; or
(3) The initiation, resumption, or continuation of any project, activity, operation, or organization (defined as any project, subproject, activity, budget activity, program element, and subprogram within a program element, and for any investment items defined as a P–1 line item in a budget activity within an appropriation account and an R–1 line item that includes a program element and subprogram element within an appropriation account) for which appropriations, funds, or other authority were not available during fiscal year 2020.

The CR also bars the use of DOD funds “to initiate multi-year procurements utilizing advance procurement funding for economic order quantity procurement unless specifically appropriated later.”

As noted, the CR does allow some departments and agencies to have more funds for specified programs via so-called anomalies, and some of the more notable ones are:

• $1.4 billion for the Rural Water and Waste Disposal Program
• Language allowing the Department of Agriculture to spend at a level sufficient to ensure that a program to feed needy children during the summer is ready in 2021
• A provision allowing the Commodity Supplemental Food Program to continue feeding low-income seniors, women, infants, and children aged six and below
• $1.5 billion for the Bureau of the Census
• “The Navy may enter into a contract, beginning with fiscal year 2021, for the procurement of up to two Columbia class submarines…in an amount not to exceed $1.62 billion.”

The CR also carried an extension for the current surface transportation bill that was set to expire on September 30, 2020 that funds programs at the current level until September 30, 2021 to give Congress more time to pass a full surface transportation reauthorization. $14.6 billion is appropriated to supplement Highway Trust Fund proceeds, and the Airport and Airway Trust Fund would also get an infusion of $14 billion to fund Federal Aviation Administration programs. The package also has Medicare and Medicaid extenders. There is also an extension of the “Antitrust Criminal Penalty Enhancement and Reform Act of 2004” “to strengthen public and private antitrust enforcement by providing incentives for antitrust violators to cooperate fully with government prosecutors and private litigants through the repeal of the sunset provision.”

Finally, the CR extends the Pandemic EBT program, the waivers for the National School Lunch Program and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and the administrative flexibility provided to states for the Supplemental Nutrition Assistance Program (SNAP).

On a party line vote, the House passed a slimmer version of the “HEROES Act,” the Democratic stimulus package. This bill would make available $2.2 trillion in comparison to the $3.4 trillion package passed in May. However, just because this bill passed the House does not mean another COVID-19 stimulus package would look like this. Speaker of the House Nancy Pelosi (D-CA) is still in negotiations with Secretary of the Treasury Steven Mnuchin, and the White House is also negotiating with Senate Republicans who generally favor a smaller bill. It is unclear whether these different stakeholders will reach agreement before the election.

According to the House Appropriations Committee summary, the HEROES Act would fund the following technology programs:

• Elections – $3.6 billion for grants to states for contingency planning, preparation, and resilience of elections for Federal office.
• Broadband – $12 billion to close the homework gap by providing funding for Wi-Fi hotspots and connected devices for students and library patrons, $3 billion for emergency home connectivity, $200 million for telemedicine grants, and $24 million for broadband mapping.
• General Services Administration Technology Modernization Fund – $1 billion in funding for technology-related modernization activities to respond to coronavirus.
• House of Representatives – $37 million to support expanded House operations such as tele-town halls, video conferencing, remote hearings, and cybersecurity. Funding will also support changes to Member office space, such as providing plastic barriers.
• Senate– $6.345 million for teleworking and IT needs as well as funds to supplement daycare operations.
• E-Rate Support for Wi-Fi Hotspots, Other Equipment, and Connected Devices During Emergency Periods Related to COVID-19. Authorizes a temporary disbursement to be administered through the Federal Communications Commission’s (FCC) E-rate Program for schools and libraries to provide internet service in a technologically neutral way to students and teachers, prioritizing those without internet access at home. It allows authorized funding to be used for internet service and providing connected devices, like laptops and tablets, Wi-Fi hotspots, modems, and routers, to students and teachers to help keep them in the digital classroom during the COVID-19 pandemic. Five percent of the emergency funds authorized are set aside to help serve schools and libraries that serve people living on tribal lands.
• Benefit for Broadband Service During Emergency Periods Relating to COVID-19.Entitles households in which a member has been laid off or furloughed, among other households that will be eligible, to get a $50 benefit, or a$75 benefit on tribal lands, to put toward the monthly price of internet service during the COVID-19 public health emergency. Internet service providers would be required to provide eligible households service at a price reduced by an amount up to the emergency benefit, and those providers can seek a reimbursement from the FCC for such amount.
• Continued Connectivity During Emergency Periods Relating to COVID-19. Prohibits broadband and telephone providers from terminating service due to a customer’s inability to pay their bill because of financial hardships caused by the COVID-19 pandemic or imposing late fees incurred because of hardships caused by the COVID-19 pandemic. It also prohibits broadband providers from employing data caps or charging customers from going over data caps and requires them to open Wi-Fi hotspots to the public at no cost during the COVID-19 public health emergency.
• Requirement for Confinement Facility Communications Services, During the Covid-19 Pandemic and Other Times. Sets a mandatory, immediate, interim cap on all rates charged in connection with voice calls and video calls made to or from prisons or jails —both for calls within a state and calls between states — of .04 cents per-minute for debit calls and .05 cents per-minute for collect calls. It also gives the FCC the authority to set rates in connection with voice calls and video calls in prisons and jails both for calls within a state and calls between states. Finally, it requires the FCC to adopt rules to replace the mandatory interim caps within 18 months of passage and to review those rates every two years. Prohibits prisons or jails from charging site commissions.
• Preempts any state law that permits a higher rate for voice or video calling but allows state laws mandating a lower rate to persist.

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