Congress

‘My way or the highway’: An approach to the NDAA debate

There are nearly 400 amendments filed to the bill, which has become law the past 58 years

Chairman James Inhofe, left, and ranking member Sen. Jack Reed are seen during a Senate Armed Services Committee hearing on Tuesday, June 4, 2019. Inhofe will manage the fiscal 2020 defense authorization bill starting as soon as Tuesday. (Tom Williams/CQ Roll Call)

The Senate is expected to debate the fiscal 2020 defense authorization bill this week, but it may be a debate in name only.

In the past six years, the Senate has approved scores of amendments to the mammoth Pentagon policy bill, known as the NDAA — short for National Defense Authorization Act. But almost all of them have been of the unobjectionable variety, approved by unanimous consent as part of huge packages of similarly uncontroversial proposals.

[Road ahead: House tackles first spending package and NDAA endurance contest]

The more consequential amendments — the ones that generate fierce debate and require roll call votes to settle — have rarely gotten that far. In fact, in each of those same half-dozen years, an average of just over 1.5 amendments to the NDAA have received a roll call vote in the Senate. Several hundred other proposals were filed and then died on the vine in that time span.

“It’s not always an open process, even though we say it is,” said James M. Inhofe, the Oklahoma Republican who chairs the Senate Armed Services Committee.

Inhofe will manage the fiscal 2020 bill on the floor, starting as soon as Tuesday.

The United States has been at war for nearly 18 years, and the NDAA, which now authorizes three-quarters of a trillion dollars for just a single fiscal year, is typically the only large national security measure, outside of appropriations, that makes its way to the president’s desk.

“There are 100 senators sent to Washington partly to consider and legislate on issues of national security and defense, and the NDAA is the primary vehicle on which to do that,” said Christian Brose, who served as Armed Services staff director under the late John McCain. “When that vehicle doesn’t allow for debates, amendments and consideration of alternative ideas, then 100 senators are missing their opportunity to weigh in on national defense at a time when it’s more important than ever. I think that’s a huge problem.”

‘My way or the highway’

Senate Majority Leader Mitch McConnell on June 13 filed cloture on the motion to proceed to the NDAA. McConnell plans to wrap up debate before the July 4 recess.

So far, there are nearly 400 amendments filed to the bill, which has become law for each of the past 58 years.

Because senators correctly view the NDAA as one of the only bills enacted annually despite the partisan gridlock, the measure consistently attracts amendments simply because those proposals stand little chance of becoming law via any other bill. In many cases, these amendments are only thinly connected to defense, if at all.

“The past few years,  the feeling has been, ‘This is probably the only thing that’s going to get floor action,’” said Jack Reed of Rhode Island, the top Democrat on Senate Armed Services. “You can’t say: ‘Don’t worry, next week we’ll have a bill coming up on your topic. Just wait.’”

Brose agrees.

“When you only have a small number of pieces of legislation that make it onto the Senate floor, it becomes a massive pile-on for every fight that every member has been looking to have and feeling like they haven’t had an opportunity to have,” said Brose, now the head of strategy for Anduril Industries and a senior fellow at Carnegie Endowment for International Peace. “That ends up in a fight-or-die mentality.”

What’s more, the Senate — like the country as a whole — is a more partisan place than it once was. So senators’ amendments are often not compromises designed to pass, but instead are divisive measures intended to reveal political differences.

“The dirty little secret here is that a fair number of members of Congress would rather have this process than to cast hard votes on issues that are unpopular or that are going to be difficult to reconcile,” Brose said.

Increasingly, too, a handful of strong-willed senators have chosen to block all other Senate amendments if they cannot get a vote on their own. These take-no-prisoners senators include Republicans Rand Paul of Kentucky and Mike Lee of Utah.

Their modus operandi is what McCain called the “my way or the highway” approach during a 2016 NDAA debate cut short when Lee blocked all but a few amendments after he could not get a vote on one of his.

The world’s greatest deliberative body, as the Senate likes to call itself, will likely fall short of that mantle once again this year, with $750 billion in authorized spending and a slew of national security issues at stake.

“Instead, the Senate will hold a shadow debate with few — or more likely zero — serious votes and virtually total avoidance of substantive policy-making. Instead, Republicans and Democrats will come together on the lowest common denominator policy prescriptions,” said John Isaacs, senior fellow at the Council for a Livable World and a student of defense issues in Congress for four decades.

Scant legislating

The Senate’s recent history reveals that, after the Armed Services Committee reports its NDAA to the chamber, the bill is barely altered.  

In 2013 and 2014, there were a total of two roll call votes on the NDAA and the Senate never actually passed its bills. Instead, senators approved compromise final versions written later in the year by House and Senate negotiators.

In 2015 and 2016 alike, the Senate held three roll call votes on amendments to the NDAA.

In 2017, there was one amendment roll call vote.

Last year, there were no roll call votes on NDAA amendments and just one roll call cloture vote on whether to end debate and decide on an amendment (and it failed).

Disputes among Republicans were the main reason for inaction last year, a tussle typical of recent Senate squabbles over NDAA.

Paul and Lee both offered amendments last year that would end indefinite military detention of U.S. citizens.

Republican Sens. Lindsey Graham and Charles E. Grassley objected to Paul’s and Lee’s requests for unanimous consent to consider their amendments. In turn, Paul and Lee made it clear that they would object to consideration of all other amendments unless their own received votes.

In the end, the Senate approved only one block of uncontroversial provisions.

“One man or woman can stop the process, and they did,” Inhofe recalls.

Hopeful, but not confident

To the senators who take the combative approach, it is the only way they see to get a vote. In practice, however, it typically doesn’t result in a vote — for them or anyone else.

“When one person decides to throw a wrench in the gears, then everyone else says, ‘Well I want to throw my wrench, too,’” said Brose.

Inhofe said he is hopeful that some of the senators who have taken that tack in the recent past are reconsidering.

Reed and Inhofe are trying to remain hopeful that the Senate will have a full debate, but they acknowledge that the same dynamics exist this year that have stymied the recent iterations of NDAA.

“We’re starting off with the hope and expectation that we can get appropriate amendments up, get agreements on time limits, take votes and move forward,” Reed said. “I think everyone has the idea that we’d like to do serious debate on issues that have a strong, solid connection to national security.”

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