Appropriations Mark-ups; the Deeming Resolution; The Possible Return of Hurry Up and Wait

In last week’s Friday Update, we explored how far the appropriations process can advance without an agreement on total spending for FY 23, as well as allocations between defense and non-defense programs. As Senator Shelby, Ranking Member on Senate Appropriations has observed: “Well, you can have the markups, and that is probably OK. That is what we have done before, but nothing is going to happen until we have agreement.” Reports over the last month have been, at turns, optimistic and pessimistic about whether an agreement is likely and how soon.

The House Appropriations Committee is slated to finish its review of FY 23 appropriations by the end of June. Although not yet announced, we assume that House Democratic leadership will follow past years and try to consider all 12 bills—solo or in omnibuses—during the month of July.

We are now in the “hurry up” phase that extends from now to the end of July and might incorporate Senate action at the committee level. However, once the August recess starts, we could be entering a potentially long wait, perhaps until the end of the year for appropriations bills to become law.

Delay can be attributed to the difficulty of House/Senate and Republicans/Democrats to reach bicameral and bipartisan agreement on total spending for FY 23 and allocation between defense and non-defense funding. Other issues that may slow the process are policy riders and directed spending (earmarks).

Obviously, it is hard for Congress to rationally spend money if they have no idea how much money is available. Thus, with no agreement on total spending levels (section 302(a) of the Budget Control Act) or subcommittee allocations (section 302(b) of the BCA), it would seem likely that appropriations would be totally stalled. The only reason that is not the case is the House’s decision to pass a deeming resolution in lieu of a binding budget resolution. Using this mechanism (as it has done from time to time in the past), the House deems a set of numbers to be the correct amount, subject to later modification. That gets the process rolling.

However, deeming resolutions do not resolve the lack of agreement on total spending. President Biden’s budget request—likely to be followed by the House--proposes a larger percentage increase in non-defense discretionary spending over FY 22 (about 14%) and a lesser percentage increase for defense spending (about 4%). The spending levels that will be acceptable to the Senate are unknown but may be much lower based on the prior positions of Republican leaders. Republicans are also expected to want something close to parity in the percentage increases.

Congress has the wherewithal to approve a few funding bills and send them to the President without an agreement on overall spending. However, this is extremely unlikely. More likely is that the lack of a budget agreement will lead (on October 1) to government funding on a Continuing Resolutions that, at a minimum, extends beyond Election Day.

Other than a government shutdown (unimaginable this year), a CR is the worst case for FDA. The agency would only be able to spend at the FY 22 levels and face some restrictions on initiating new programs. If there is a CR, one key variable is how long it lasts--to the end of October, after Thanksgiving, or into next year? That provides a sense of when Congress expects to be ready for serious compromises on total spending.

Editorial Note: The week’s Analysis and Commentary section was written by the Alliance’s Executive Director, Steven Grossman.