The New Approach to fixing the FCRA issue had a narrow purpose. It was designed to allow CBO to score new WIFIA amendment language in the context of a specific issue (the use of federal sovereign power in projects with non-federal participants) that in theory could impact FCRA treatment. That way, CBO would have a path to break with their prior scorings that relied on OMB’s embarrassingly erroneous Criteria — in effect, a face-saving off-ramp.
But now I’m thinking the New Approach could go further and support a new narrative about the whole topic — and add some real-world improvements to CWIFP financing as well.
Who Owns the ‘Issue’ — OMB or Congress?
What really is the ‘issue’ that OMB’s FCRA Criteria purport to address? Is it a matter of interpreting supposedly obscure FCRA law and principles applied to normal non-federal cost share situations? That was OMB’s approach. Notwithstanding their questionable motivation and incoherent work product, in such technical budgetary areas OMB has indisputable institutional standing — and can control the narrative. Hard to fight that, as CBO’s faulty past scorings show.
Or could the issue be seen, not as a budgeting issue per se, but as a concern about what happens in the real world when federal loan program applicants and federal agencies are involved in the same project? It might be completely theoretical, but if applicants and federal agencies collude — well, bad things will happen, one of which will be that FCRA treatment becomes invalid. In essence, collusion is the issue the amendment language of the New Approach actually addresses, even though my original intent was only to fix the FCRA Criteria problem.
Seize the Narrative Opportunity
Here’s the critical point — if the issue at hand is (or could be made to be) the possibility of collusion between federal loan program applicants and federal agencies in cost-share situations, that’s an area which fundamentally involves loan program design and eligibility — not mysterious budgetary law interpretation. It is squarely a legislative area — Congress, not OMB, has the last word on statutes that determine loan program policy and oversight. If Congress seeks to address the ‘collusion issue’ in a way that is indisputably consistent with FCRA treatment of program loans — well, so much the better. If OMB thinks otherwise, they can argue their meritless case. They’ll lose — because institutional standing is now with Congress.
Of course, I continue to believe that real-world collusion between federal program applicants and federal agencies is either vanishingly rare or already adequately covered by other laws and rules. Strictly speaking, an ‘anti-collusion’ WIFIA amendment is clearly not necessary. But that’s not the point. The point is that the risk of collusion (however remote) can be the basis for an easily understandable narrative about improving the WIFIA loan program’s statutory framework — who can argue with that? Clarifying FCRA treatment is just a technical side benefit, no longer the main event.
And if the bill with the anti-collusion amendments is all about an ‘improving WIFIA’ narrative, why not take the opportunity to actually include some real-world improvements? At the least, that’ll substantiate the ‘improvement’ story and further dilute the FCRA aspects. In the draft above, I’ve included the common-sense 55-year amendment for dam safety and (now) flood control infrastructure projects, which can be specifically named in the bill’s title — much catchier. There are other economic amendments that could be included, too, but my guess is that one or two economic amendments is enough for now.
I’ll probably keep developing this ‘New Narrative’ path, if only because it’s a way to connect a very technical issue with the real world. I’m sure there’ll be a lot more need for that type of connection for federal infrastructure loan program development in future.