Update on the bill mandating OA at the NIH
SPARC Open Access Newsletter, issue #116
December 2, 2007
by Peter Suber
When we left off, both the House and Senate had approved the Labor Health and Human Services (LHHS) appropriations bill, which contained language mandating OA at the NIH.  Details are in last month's SOAN,

Here's what happened since:

* The House and Senate bills used identical language for the NIH provision but differed in other details.  Hence, they had to be reconciled by a House-Senate conference committee before the final bill could be submitted to the President.  The conference committee was one more opportunity for opponents to amend or delete the NIH provision.  On November 1, the conference committee produced a unified bill with the NIH provision intact.  The reconciled version of the bill still had to be approved by both houses.

Also on November 1, the Washington Post published an article erroneously saying that the bill would require NIH grantees to submit their articles to certain OA-friendly journals (gold OA) rather than require them to deposit their peer-reviewed manuscripts in PubMed Central (green OA).  The error was picked up and repeated by other news media, including Nature News and Slashdot --a mudslide of misinformation just as we were making headway in educating stakeholders about the difference between green and gold OA.  It probably had no effect on the votes in Congress, but it gave new life to an old and tenacious error.

Ray English and I sent a Letter to the Editor immediately, which was published 12 days later.  (Among other things, this episode demonstrated one more advantage of blogs over newspapers:  real-time error correction.)

* The House of Representatives tried to yoke the reconciled LHHS bill, which the President had promised to veto, to a bill funding the Department of Veterans Affairs, which he had promised to support.  The strategy was to reduce the odds of a Bush veto or increase the odds of Republican votes to override a Bush veto.  The Senate, however, separated the two bills.  On November 7, the Senate approved reconciled LHHS bill, and on November 9 it was approved by the House and sent to the President.

* President Bush vetoed the LHHS bill on November 13, citing its high levels of spending.  Friends of OA mobilized to contact members of Congress, urging them to override the veto.

The LHHS bill included a $1 billion budget increase for the NIH, a very popular provision in the biomedical community.  Among the groups fighting to override the Bush veto was the Federation of American Societies for Experimental Biology (FASEB), which had opposed the OA policy at the NIH since 2004.  FASEB must have decided that the OA policy was a price worth paying for the NIH budget increase.  Because the LHHS bill was very large ($606 billion), its many supporters were often strange bedfellows.

* On November 15, the House of Representatives failed to override the Bush veto. 

For what it's worth, Congress was gaining on the President at the time of the override vote.  In July, the House vote for the original LHHS appropriations bill fell 14 votes short of a veto-proof two-thirds supermajority.  In November, the vote for the reconciled version of the bill was just three votes short, and the override vote was just two votes short. 

This is where we are today.  The original version of the LHHS bill is dead and Congress is working on a compromise version which reduces the overall level of spending.  In the meantime, Congress has adopted a continuing resolution to fund the government until December 14.  (Fiscal 2008 started on October 1.)  The continuing resolution has no effect on the NIH provision except to give Congress more time to work out a compromise that might win a Presidential signature. 

President Bush complains that the LHHS bill spends $22 billion more than he would like to spend.  Congressional Democrats have signalled that they will split the difference and cut $11 billion.  Will that work?  No one knows. 

Will the compromise bill include the full-strength NIH provision?  No one knows yet, but I see four grounds for optimism;

(1) The OA mandate was approved by both houses of Congress.  When looking for items to cut, Congress will look first at provisions approved by just one chamber and retained by the House-Senate conference committee.

(2) The OA mandate has bipartisan support in Congress and Republican friends in some offices of the Executive Branch.

(3) The President's "Statement of Administration Policy" on the bill (October 17, 2007) "strongly opposed" some of its policy provisions, but didn't use the language of opposition at all for the NIH provision.  Instead, it merely called for balance and noted that the administration "believes" there are opportunities to "study" and "consider" ways to improve compliance with the current policy.  On the Washington Scale of Remonstrative Rhetoric, this weak response is closer to neutrality than opposition.  Deleting the NIH provision would do virtually nothing to ingratiate the President.

(4) To reduce overall spending levels in the bill, Congress will cut some of the appropriations.   But the OA mandate is a policy change, not an appropriation.  There's no need to cut it to satisfy the President's fiscal objections to the current bill.

* Here are a few of the news and comment pieces from November.

Jocelyn Kaiser, President Nixes Bill Funding NIH, Science Magazine, November 13, 2007.

Bob Grant, Bush vetoes NIH budget increase, The Scientist, November 14, 2007. 

Bruce Byfield, Open Access bill vetoed, Linux.com, November 16, 2007.


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