Year: 2007

By two votes, the House failed to override President Bush's veto of the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2008, which contained the NIH open access mandate (the vote was 277-141). Bloomberg reports that Senate Democrats have a new strategy:

Senate Majority Leader Harry Reid said Democrats will combine the 11 unfinished appropriations bills still needed to fund the federal government into one measure that exceeds the administration's request by $11 billion—half the $22 billion Democrats initially supported.

However, CQPolitics reports that:

The White House brushed off Reid’s proposal Thursday, as administration officials have done previously when Democrats have said they are willing to negotiate on funding levels.

"The president has been clear that Congress should adhere to the budgetary process and pass individual funding bills at reasonable and responsible spending levels," said Sean Kevelighan, a spokesman for the White House budget office. "Perhaps [the] Democratic leadership in Congress. . . should concern itself less with capturing political news cycles and more on their fundamental responsibility to fund the federal government."

Peter Suber had this to say about the override failure:

OK, on to Plan B.  The OA mandate for the NIH is a small part of a big bill to pay for about one-thirteenth of the federal government.  Some version of the appropriation will certainly pass and get the President's signature.  You can already see the jockeying between Congressional leaders and the White House about the contours of that version.  There are four grounds for optimism:

1. The OA mandate was approved by both houses of Congress.  The easiest provisions to delete are those approved by just one chamber and kept by the House-Senate conference committee.
2. The OA mandate has bipartisan support in Congress and Republican friends in the Executive Branch.
3. The President has expressed strong objection to some of the policy provisions of the bill, but his stated concern about the OA provision is very mild by comparison.  If Congress deletes some of the more sensitive provisions in the spirit of compromise, it needn't touch the OA mandate.  In fact, deleting the OA 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.   Stay tuned.

President Bush has vetoed the FY 2008 Labor, Health and Human Services and Education Appropriations bill, which contained the NIH open access mandate.

Here's the open access mandate in the bill:

The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law

Here's Peter Suber's analysis of the President's veto:

• First, don't panic.  This has been expected for months and the fight is not over.  Here's a reminder from my November newsletter:  "There are two reasons not to despair if President Bush vetoes the LHHS appropriations bill later this month.  If Congress overrides the veto, then the OA mandate language will become law.  Just like that.  If Congress fails to override the veto, and modifies the LHHS appropriation instead, then the OA mandate is likely to survive intact."  (See the rest of the newsletter for details on both possibilities.)
• Also expected:  Bush vetoed the bill for spending more than he wants to spend, not for its OA provision.
• Second, it's time for US citizens to contact their Congressional delegations again.  This time around, contact your Representative in the House as well as your two Senators.  The message is:  vote yes on an override of the President's veto of the LHHS appropriations bill.  (Note that the LHHS appropriations bill contains much more than the provision mandating OA at the NIH.)
• The override votes—one in each chamber—haven't yet been scheduled.  They may come this week or they may be delayed until after Thanksgiving.  But they will come and it's not too early to contact your Congressional delegation.  For the contact info for your representatives (phone, email, fax, local offices), see CongressMerge.
• Please spread the word!