The National Defense Authorization Act: A Primer

WASHINGTON – Defense policy discussions are attracting most of the attention on Capitol Hill this week as the Senate takes up the fiscal 2021 defense authorization bill on the floor and the House Armed Service Committee marks up its version.

Though bitter controversies often threaten the National Defense Authorization Act’s annual passage, the reality is it has never failed to be enacted.

Hill watchers say that’s due in large measure to the fact most lawmakers and others engaged in the process consider it the “must pass” legislation of any Congress.

Senate Majority Leader Mitch McConnell said as much on Monday when he opined on the Senate floor that “this year’s National Defense Authorization Act is as urgent and important as it’s been for 60 consecutive years.”

He also noted that the legislation the Senate will consider this week “is already the product of exhaustive, bipartisan effort,” thanks to the efforts of Sens. Jim Inhofe, R-Okla., and Jack Reed, D-R.I., chairman and ranking member, respectively, of the Senate Armed Services Committee.

The marked up bill that emerged from the committee by a 25-2 vote earlier this month authorized $740.5 billion in national defense spending, and included some 229 bipartisan amendments.

“It may include more amendments before we finish with it on the floor, but the primary missions of this legislation are already clear,” McConnell said.

“On the home front, it will increase pay for service members, reform the military housing and healthcare systems, and increase transparency in Pentagon budgeting, hiring, and acquisition,” he explained. “Around the world, it will make clear our commitments to our allies in Europe and the Pacific. Invest in key technologies from biotechnology to hypersonics. And make sure that our men and women in uniform have the tools to remain the greatest fighting force in world history.”

The House Armed Services Committee, meanwhile, will mark up its version of the NDAA on July 1. The bill is expected to hit the House floor in late July.

The draft version of the National Defense Authorization Act the House Armed Services Committee will begin debating this week includes provisions requiring the Pentagon to address contamination and health risks associated with per- and polyfluorinated compounds on military bases; to strengthen an existing preference for the purchase of electric and hybrid vehicles; and to develop a strategic framework for sustaining its weapons systems.

“We spend more money to sustain a program than buying it to begin with,” Rep. Mac Thornberry, R-Texas, told reporters in April, when the legislation was first introduced.

“In previous NDAAs, we’ve said that you have to have a sustainment strategy before you buy something. What we did not do, however, was require a sustainment strategy across systems,” the ranking member of the House Armed Services Committee continued.

So how does such an important and massive document, addressing so many myriad and unrelated issues, come together?

The truth is, the only way it can — by close adherence to decades-old processes and constancy, as the Congressional Research Service has said, in procedures, schedules, and protocols.

The Whole Enchilada

In a sense, the National Defense Authorization Act is almost as big as the government itself.

It authorizes appropriations for the Department of Defense, some aspects of the intelligence community, nuclear programs that fall under the auspices of the Department of Energy, and the defense-related activities of other federal agencies.

Beyond authorizing expenditures, however, the bill also establishes the nation’s defense policies and how they will be administered.

And though many in the general public think of the NDAA as an appropriations bill, in practice, it isn’t. It provides no budget authority, but rather suggests how Congress will vote on later appropriations for particular programs.

The Committees

Under the rules of the House and Senate, and as already implied by the introduction above, the House Committee on Armed Services and the Senate Committee on Armed Services have jurisdiction over all bills, resolutions and other matters related to the common defense of the nation.

To carry out their work in a timely fashion, each of these committees has subcommittees that are assigned specific jurisdictional responsibilities.

The specific focus of each of these subcommittees ranges from cybersecurity and emerging threats to the readiness of military personnel to the needs and status of tactical air, land and sea forces.

In a typical year, the NDAA process begins on or about the first Monday of February, when the president submits his annual budget request to Congress.

With that, the House and Senate Armed Forces Committee begin their work in parallel, each conducting a series of hearings on the budget request.

Over the course of these hearings, senior civilian and military leadership of the Defense Department and the military services are invited to testify, as are related agency heads.

While the authorizing committees do their hearing work, the subcommittees are also holding hearings on their specific subject areas.

Once the hearings are completed or nearly so, the respective authorizing committees draft and markup separate bills for their respective chambers to consider.

The Critical Markup Process Begins

Under ordinary, non-pandemic circumstances, the committees will have reviewed the president’s budget request and prepared authorizing legislation by early May.

The committees then schedule a series of markup meetings so that members can consider, debate and vote on amendments to the authorizing legislation.

In practice, the process begins in each chamber with the Armed Services subcommittees considering something called the “Chairman’s Mark,” a draft legislative proposal with funding recommendations for elements of the bill that fall under that subcommittees’ jurisdiction.

For instance, this year’s inclusion of a request for the Defense Department to develop a strategic framework for sustaining its weapons systems, was Rep. Mac Thornberry’s Chairman’s Mark.

At completion of markup, each subcommittee votes to report the proposal, as amended, to the full committee.

Full Committee Markup

Once the subcommittees have all finalized their markups, the full committee will convene to consider, debate, and vote on amendments to each of the subcommittee marks.

During full committee markup, the full committee “Chairman’s Mark,” which contains legislation and funding recommendations for matters that are not assigned to a specific subcommittee, is considered, debated, and voted on.

The full committee Chairman’s Mark addresses a variety of broader issues such as general defense policy, matters related to the organization and management of the Defense Department, acquisition and industrial base policy, and matters related to foreign nations.

Practices Specific to the House

Given the enormous size of authorization — this year it tops $740.5 billion — and the hundreds of amendments that are added to it, it is understandable the House Armed Services Committee has adopted practices to help move the bill through the legislative process.

For instance, House rules currently prevent consideration of a bill by a committee unless the report includes a list of congressional earmarks or a statement that there are none.

The committee also requires members of the committee to provide, before offering any amendment that involves the jurisdiction of other House committees, a letter from the respective committee chairman indicating a waiver of the right of referral.

Past practice also dictates that for every amendment that would increase spending, the amendment sponsor is required to identify suitable offsets to prevent costs from quickly getting out of hand.

Practices Specific to the Senate

According to the Congressional Research Service, the Senate Armed Services Committee has also required that amendments that would increase spending for one item should identify suitable offsets.

In addition, under Senate rules, committees and subcommittees are allowed to hold closed meetings for certain reasons, such as a desire not to disclose national security information.

As it did in past years, the Senate Armed Services Committee chose to conduct its full committee markups behind closed doors.

In addition, the Senate Armed Services Committee’s proposal is typically reported to the Senate as an original bill — one that has not previously been formally introduced.

Floor Consideration

Once reported favorably out of committee, the NDAA may be scheduled for floor consideration.

In the House, the practice is to consider the bill under the provisions of a special rule that structures the conditions of debate and possible floor amendments to the bill.

After being considered, debated, and amended in the House, the House-passed version of the NDAA is sent to the Senate and typically either referred to SASC or placed on the Senate calendar.

Once the Senate Armed Services Committee has reported its proposal, floor debate and amendment consideration is typically framed pursuant to a series of unanimous consent agreements.

However, one or more cloture processes may be necessary to reach a final vote on certain amendments, or the bill itself.

When the Senate Comes First

If the Senate passes its own bill first — which looks likely this year — it is sent to the House for further deliberation.

A Meeting of the Minds

The Constitution requires that the House and Senate approve the same bill in precisely the same form before it is presented to the president.

In practice this means each chamber must pass its own version of the same measure and then attempt to reach agreement with the other chamber about its provisions.

An agreement may be reached by the exchange of alternatives between the chambers. Alternatively, the House and Senate can each agree to create a conference committee to propose a package settlement of the competing proposals.

Members of the conference committee are expected to come up with an agreement in the form of a conference report.

Though most members of the conference committee are drawn from the two Armed Services committees, in reality, conferees can be appointed from any committee with jurisdiction over components of the bill.

The conference committee begins its work as soon as possible following passage of a proposal in each chamber.

Though there is no specified timeline for how quickly the conference committee must act, most of the authorities provided by the NDAA expire at the end of the fiscal year. That’s why the push is on each year to complete the NDAA conference prior to Oct. 1 of each year.

Once reported by the conference committee, a conference report is subject to debate during floor consideration, but is not amendable.

If the House and Senate each agree to the conference report, the NDAA is enrolled for presentation to the president.