The Pentagon does not need the must-pass bill to operate, experts say.
It’s looking more and more likely that the annual defense policy bill will not become law in 2021.
Congress frequently has an end-of-calendar-year push to pass the bill, which authorizes the Defense Department activities for the fiscal year that began in October, requests reports or briefings from the Pentagon, and sets new policy on things such as military justice reform or who should register for the draft. But experts say there’s lots of precedent for the legislation passing in the new year and few consequences to doing so.
A Senate motion to end debate on the fiscal 2022 National Defense Authorization Act failed on Monday by a vote of 41-51; it needed 60 ayes to set up a vote for final passage. All Republicans who voted rejected the procedural step forward. They were joined by five liberal lawmakers: Ed Markey, D-Mass.; Jeff Merkley, D-Ore.; Bernie Sanders, I-Vt.; Elizabeth Warren, D-Mass.; and Ron Wyden, D-Ore. Majority Leader Chuck Schumer, D-N.Y., also voted against the motion when it became clear it would fail—a procedural move that will allow him to bring it up for a vote again.
Some Republicans said they were rejecting the process set by Schumer, not the bill itself, and complained that they did not have enough time to debate the bill and have an open amendment process.
“We’re not delaying national security,” Sen. Jim Inhofe, R-Okla., the ranking member of the Senate Armed Services Committee, said Monday night. “This is the opposite. We are demanding that we show, through open and robust debate, that our men and women in uniform are our priority.”
But Schumer pushed back, saying that the process has been “fair and reasonable” and that committee leaders agreed to hold votes in the full Senate on 19 bipartisan amendments.
“That’s more than the total number of amendments to the NDAA that received votes under the Republican majority and under Leader [Mitch] McConnell when we debated this bill in 2017, 2018, 2019, and 2020. Not more than each year, more than all of them put together,” Schumer said Tuesday.
While analysts called the failed cloture vote “disappointing,” they are optimistic Congress will still pass a bill. Congressional staff will need to continue negotiations to agree on which and how many amendments will be considered. After that, the Senate will have to pass the bill, representatives from the House and Senate will need to reconcile the two different versions of the bill, then the final bill will need to pass each chamber again before it can become law.
This long timeline makes it increasingly likely that the bill won’t become law until 2022.
“The likelihood of the NDAA being pushed into January is getting higher and higher, which is not the end of the world,” said Todd Harrison, the director of defense budget analysis at the Center for Strategic and International Studies.
It wouldn’t be the first time. The fiscal 2011 bill became law on January 7, 2011; the fiscal 2008 bill became law on January 28, 2008; and the fiscal 2006 bill became law on January 6, 2006. The bill for fiscal year 1996 wasn’t signed into law until February 10, 1996. Most recently, the fiscal 2021 bill became law on January 1, when Congress overrode President Donald Trump’s veto.
The bill also isn’t critical to how the department functions. Other parts of the government routinely do their jobs without an authorization bill. The State Department, for example, has not had an authorization bill for nearly 20 years.
“DoD can operate just fine without an authorization bill,” Harrison said.
Not passing a bill, however, could undermine Congress’ oversight power, according to Bradley Bowman, a director at the Foundation for Defense of Democracies.
“The State Department doesn’t take questions [from lawmakers] as seriously because there’s no bill where you can impose consequences. It shifts the balance of power,” Bowman said. “It makes appropriators even more powerful.”
Even though the bill is viewed as a must-pass piece of legislation that Congress has approved every year for the past six decades, there are few consequences when it is delayed until the new year. The bill authorizes Defense Department programs and gives Congress a chance to set priorities, but does not actually disburse any money. The appropriations bill is what funds the department, and blurred lines between authorization and funding bills means that appropriations legislation sometimes also order reports or set policy too.
Bowman acknowledged that the appropriations bill is more important when it comes to buying equipment to prepare troops to fight. But even that is in danger, since the government is funded by a continuing resolution that will expire on Friday.
“If I had to pick one right now...I’d say ‘pass a defense appropriations bill so we don’t have a long-term CR’,” he said. “That would be my first request, because when you fund a program, that’s treated with or without the NDAA as an authorization.