Medical Innovation Bill Passed the House With 344 Votes; Now It’s On Life Support

Chairman Fred Upton’s ‘21st Century Cures’ measure has little momentum in the Senate.

Senate Health, Education, Labor, and Pensions Chairman Lamar Alexander and House Energy and Commerce Chairman Fred Upton.
Chip Somodevilla AFP/Getty
Caitlin Owens
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Caitlin Owens
Sept. 8, 2015, 8 p.m.

Fred Up­ton al­most made passing his med­ic­al-in­nov­a­tion bill through the House look easy.

After more than a year of work, the bill soared through Up­ton’s En­ergy and Com­merce Com­mit­tee with a 51-0 vote. It then moved to the House floor, where a last-minute hic­cup over fund­ing cost it 70 votes from Up­ton’s fel­low Re­pub­lic­ans, but it ul­ti­mately over­whelm­ingly passed with 344 votes.

Now, however, The Little Bill That Could is prob­ably about to come to a grind­ing halt, and some say its suc­cess up to this point is solely at­trib­ut­able to Up­ton him­self, who is in the fi­nal ses­sion of his chair­man­ship and has pulled all the stops in en­sur­ing its pas­sage.

There is spec­u­la­tion that some may have voted to sup­port the “21st Cen­tury Cures” bill only be­cause it had Up­ton’s name on it. Which, of course, is very bad news for a bill that already pit­ted con­ser­vat­ive budget hawks against the rest of their party in the House and comes with a price tag up­wards of $8.75 bil­lion.

But the bad news doesn’t stop there. The biggest Cures pay-for—rev­en­ue gen­er­ated by the Stra­tegic Pet­ro­leum Re­serve—may not end up be­ing avail­able when all is said and done. SPR cash was in­cluded in the Sen­ate ver­sion of high­way le­gis­la­tion right be­fore re­cess. Al­though the House passed its own short-term ver­sion of the high­way meas­ure, the is­sue will have to be lit­ig­ated again in the fall.

To top it all off, the Sen­ate com­mit­tee work­ing on med­ic­al in­nov­a­tion—Health, Edu­ca­tion, Labor, and Pen­sions—has said it will take up its own med­ic­al-in­nov­a­tion bill in the fall. Out­side of the com­mit­tee, Sen­ate Demo­crat­ic Whip Dick Durbin has an al­tern­at­ive med­ic­al-in­nov­a­tion bill sub­stan­tially dif­fer­ent than Cures in sev­er­al ways, in­clud­ing the amount of fund­ing it gives to the Na­tion­al In­sti­tutes of Health ($26.6 bil­lion over the next five years versus Cures’s $8.75 bil­lion).

With three big strikes against it, the Cures bill is on life sup­port.

“A lot of folks thought the Cures bill was a big turd sand­wich,” said a lob­by­ist fa­mil­i­ar with the situ­ation. “I know as Cures was go­ing through, the Sen­ate was kind of rolling their eyes.”

Yet the En­ergy and Com­merce pan­el re­mains op­tim­ist­ic—if not ne­ces­sar­ily about the Cures bill it­self, then for a med­ic­al-in­nov­a­tion bill in gen­er­al to end up on the desk of the pres­id­ent, who has also com­mit­ted to work­ing on the is­sue through the White House’s Pre­ci­sion Medi­cine Ini­ti­at­ive.

“I don’t think they’re in­sur­mount­able,” said Gary An­dres, the ma­jor­ity staff dir­ect­or of En­ergy and Com­merce, of the obstacles faced by the le­gis­la­tion. “I have a lot of con­fid­ence the Sen­ate will pro­duce a good product as well…. Every­body really wants to get this done.”

Sen­ate HELP Chair­man Lamar Al­ex­an­der has said all along that the Sen­ate is on a “par­al­lel track” with the House, and he hopes to get his com­mit­tee’s ver­sion of the bill done be­fore the end of the year.

But Al­ex­an­der has also been clear that the Sen­ate is not just go­ing to take up the House ver­sion, al­low­ing for dif­fer­ences between the two bills and guar­an­tee­ing a con­fer­ence over the two dif­fer­ent ver­sions. It is Sen­ate Re­pub­lic­ans’ pref­er­ence that the fund­ing re­mains dis­cre­tion­ary, rather than man­dat­ory.

While go­ing to con­fer­ence is usu­ally a dif­fi­cult pro­cess, it may ac­tu­ally work in Cures’s fa­vor. If the bill’s start date gets pushed back in­to fisc­al year 2017, there may be more wiggle room in the budget to al­low it to be clas­si­fied as dis­cre­tion­ary fund­ing, tak­ing away some of the pres­sure to find pay-fors as well as cri­ti­cism from budget hawks. Spend­ing caps may in­crease, which means it could be easi­er to fund do­mest­ic pro­grams—al­though plenty of oth­er law­makers will prob­ably keep this in mind as they write their own le­gis­la­tion.

And even if the Cures fund­ing re­mains as-is, there’s some reas­on to hope that it can keep its SPR fund­ing. House Ways and Means Chair­man Paul Ry­an is work­ing on his own high­way le­gis­la­tion that uses a dif­fer­ent pay-for than the Sen­ate bill. His plan is to fund the bill with rev­en­ue from a new in­ter­na­tion­al tax sys­tem that helps Amer­ic­an busi­nesses make things do­mest­ic­ally, sell them over­seas, and keep both profits and jobs in the U.S., ac­cord­ing to a Ways and Means spokes­man.

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