Super-short summary: (1) Give CBO a win on federal sovereign power because it doesn’t matter, (2) different amendment language allows new CBO analysis and graceful exit, (3) indicate in bill’s introductory language that the Criteria are wrong.
This looks promising re the FCRA Criteria issue — Utah, Arizona senators launch bipartisan push for water infrastructure funding
Here’s the Senate text — House is the same.
However, before the amendment language gets included, I hope the sponsors consider what happened to the same amendment re CBO scoring for S.914 (2021) and S.3591 (2020).
In both cases, CBO essentially applied the FCRA Criteria rationale and scored the impact of the amendment as if FCRA accrual couldn’t be applied, hence rendering the amendment pointless. In one sense, it’s simple: CBO was wrong then because the Criteria are wrong. So, point that out and ask again, right?
Maybe. As an outside observer, I’d guess that CBO might be resistant to, in effect, admitting they were wrong before because…they were misled by OMB? Because they didn’t really understand the Criteria or FCRA? But now that they do, they’re agreeing in public that OMB is wrong? All a bit awkward, no? It’s one thing for me to write blistering polemics about the Criteria. But I’d be sympathetic to anyone in the government that would want to avoid awkwardness about such an unnecessary issue.
Well, maybe a quiet agreement about different scoring this time has been, or will be, worked out. Congress and CBO are on the same team, after all, so I imagine such things are possible.
But if not, perhaps because such things are not quite cricket, I have some suggestions. This is explained in depth (with example amendment text) here: FCRA Non-Federal Issue: A New Approach. Yes, I know — TL/DR. So, I’ll cut to the chase by just parsing CBO’s two-sentence rationale for the S.3591 bill:
However, the status of a borrower as a nonfederal entity repaying a loan with nonfederal funds is not a sufficient basis for the loan or loan guarantee to receive FCRA treatment under current law.
I think CBO is correct in a theoretical way here. If somehow the federal government is forcing the non-federal borrower to agree to and then repay the loan, we’re talking about some kind of weird taxation that would go in the cash budget — definitely not FCRA. In practice, I can’t see that ever happening in a cost-share situation, legally anyway. But CBO takes the use of federal sovereign power in projects involving non-federal participants very seriously. So, give CBO the win here and include some language about the WIFIA applicant demonstrating that they’re not being forced by Uncle Sam to do anything, the cost share and the loan are their independent decisions made according to their standard procedures, etc. They’ll have all this paperwork anyway. How easy is that?
In directing this budgetary treatment under S. 3591, EPA could make loans and loan guarantees for federal projects or assets and record the costs on an accrual basis—which would be reflected in a subsidy cost—rather than on a cash basis, thus understating the initial funding required for those commitments.
This is where CBO is wrong because the Criteria are wrong. WIFIA will be making a loan to a non-federal borrower for their own cost-share non-federal asset — obviously, the borrower isn’t agreeing to raise local taxes or water rates on their community to repay a loan that finances a federal asset — what, like a gift or a patriotic donation? Or the local people just can’t wait to pay more federal taxes?
No — unless the borrower is an investment-grade imbecile, they’re financing something of value (you know, an ‘asset’) for their own non-federal community, and hence such asset can be precisely described as a non-federal asset. Yes, that non-federal asset is a cost share, which by definition is a share in a project that has a lot of federal involvement, and such project could be loosely described as a ‘federal project’.
Uh, shouldn’t the federal budget utilize precise definitions and avoid loose ones? Is it okay to override statutory WIFIA eligibility because a bureaucrat expresses an opinion “like, you know, I just feel the cost share is kind of like, you know, too federal, ‘coz it’s right there in the project and everything, and that makes me uncomfortable, I mean like whatever FCRA law says, I’m just uncomfortable…” Spare me.
And so on and on — the Criteria are wrong in so many ways that it’s embarrassing. The problem is that CBO is twice the on record agreeing with the Criteria, so it’s potentially their embarrassment, too. Proposing significantly different and longer amendment text will give CBO an excuse to do a completely new analysis where they can focus on federal sovereign power and just ignore both their prior scoring and the Criteria.
Finally, it might be worth indicating in the bill’s introductory language that the amendment is necessary because the Criteria are wrong. Otherwise, CBO faces a bit of a logical issue: If the Criteria are not officially questioned in some way, they presumably remain the officially correct interpretation of FCRA — which means that the amendment must be incorrect? I don’t know Congressional bill protocol here, but I’d guess that it leans more to a hint than a slam — maybe something like this:
To amend the Water Infrastructure Finance and Innovation Act of 2014 with respect to ensuring the correct budgetary treatment of certain amounts of financial assistance, and for other purposes.
A gentle implication that the current, Criteria-based budgetary treatment needs such correction. And effectively an invitation to CBO to help ensure correct treatment, which of course could include addressing their own scoring concerns about the use of federal sovereign power in projects with non-federal participants.