Senate NDAA debate could have something for everyone
Amendments included in revised version touch on immigration, health care and more
By John M. Donnelly and Mark Satter
Corrected Oct. 14 | Several weeks from now, the National Defense Authorization Act will probably become law for the 62nd straight fiscal year, and that makes it the ultimate magnet for unrelated legislation in search of a ride home to enactment.
That is the case every year — and this time around is no exception.
The House passed its version of the fiscal 2023 NDAA in July. The Senate hopes to take up its bill after the November elections.
Already the Senate measure has attracted more than 900 amendments — covering everything from authorizing State Department programs to ensuring the Pentagon and intelligence agencies buy and use only computers that block pornography.
It is not clear yet which of those many amendments might be adopted or even debated.
It seems likely that more than 100 proposals will not even be considered and will just fall by the wayside.
Hundreds of other uncontroversial amendments will be rolled into so-called managers packages and adopted by unanimous consent and without a whisper of discussion.
Then there are the chosen few — the rare amendments that could get discussion and votes on the floor. These will include some that stand a chance of being adopted and others that are destined to fail, sometimes by design — in other words, preelection votes to make a political point.
And one or more senators are likely to delay proceedings if their amendments do not get votes.
Whatever ends up in the Senate measure would still have to survive negotiations with House members on a final version.
Having said all that, the Senate bill might not even stay on the floor. The Senate, mired in other business during the lame-duck session, might not vote on amendments or the bill itself and instead could go straight to a conference with House negotiators — as happened last year.
Sen. James M. Inhofe of Oklahoma, the top Republican on Armed Services, hopes that does not recur.
“I am particularly eager to get this bill passed because, as you all know, it is my last NDAA to shepherd through the Senate, and there’s been a lot of them at this point,” Inhofe, who is retiring after this Congress and whose name adorns the NDAA title, said on the floor Tuesday.
That same day, the Senate formally kicked off floor consideration of the NDAA, only to set it aside to resume October recess, in hopes of returning to the measure later this fall.
The sprawling bill authorizes more than $846 billion in spending on national security programs, though the funds are appropriated separately. The total includes a $45 billion increase recommended by the Senate Armed Services Committee.
Before leaving town Tuesday, Inhofe and Armed Services Chairman Jack Reed, D-R.I., incorporated 75 amendments into a substitute version of the bill. These proposals included the authorization bills for the State Department, Maritime Administration, Coast Guard and intelligence agencies, among others.
The measure now even includes the so-called Water Resources Development Act, which would authorize spending on ports, harbors and inland waterways.
The 75 amendments also include one by Texas Republican John Cornyn that would identify and sanction individuals who helped circumvent sanctions on Russia by buying or selling that country's gold.
The package includes an amendment by New Jersey Democrat Bob Menendez that would bolster U.S. support for Taiwan, authorizing billions of dollars for that purpose.
One hot-button issue that was not included in the 75 was a response to OPEC's recent vote to limit oil production by 2 million barrels per day. Iowa Republican Charles E. Grassley offered a stand-alone amendment that aims to prohibit other countries from engaging in collective actions to impact the oil market — the first of what could be multiple reactions in the Senate NDAA debate.
Some lawmakers and administration officials saw that move, which would raise oil and gas prices, as a betrayal by Saudi Arabia in particular and a gift to Moscow, as Russia exports oil to finance its invasion of Ukraine.
Given those strong feelings, members could also examine an NDAA amendment or two later this fall based on pending legislation on the topic. For example, Connecticut Democrat Richard Blumenthal and others are pushing a draft bill that would temporarily halt arms sales to Saudi Arabia.
President Joe Biden said in a CNN interview Tuesday he is planning to consult with lawmakers on the best response to the Saudi action.
Beyond those amendments already adopted, senators have filed others that could have at least some appeal across party lines.
A number of amendments would aim to restrict U.S. ties with China. While the authors are mainly Republicans, some of the proposals targeting Beijing could garner Democratic support.
South Carolina Republican Tim Scott has proposed to bar procurement, operation or other spending on drones from countries of concern, including China. And Mississippi Republican Cindy Hyde-Smith has a similar proposal.
Scott also has offered a new AUMF. This one would authorize use of American military force, if necessary, to protect and defend Taiwan — a proposal that would face long odds of adoption.
Missouri Republican Josh Hawley has filed amendments that would ban use of the TikTok app, which is made by a company whose parent is based in China, on U.S. government computers. Hawley has also proposed barring U.S. government contracts with consultants that do business with China.
Louisiana Republican John Kennedy wants to force institutions that get U.S. funds to disclose any gifts from China.
Texas Republican Ted Cruz is aiming to bar any cooperation with China on nuclear programs, including atomic energy initiatives. And he wants a review of Chinese real estate purchases near U.S. military installations.
Included in the legislation unveiled Tuesday were portions of the bipartisan Taiwan policy bill from Menendez and Sen. Lindsey Graham, R-S.C., which the Senate Foreign Relations Committee approved in September.
Not all of the provisions in the Taiwan bill made it into the manager's package. Excluded was language that drew some of the most concern from Foreign Relations Committee members related to a recommendation for the State Department to pursue negotiations with the Taiwanese government on renaming its de facto embassy in Washington to something more official sounding than its current name, the Taipei Economic and Cultural Representative Office in the United States.
However, the bill proposes a significant increase in the amount of Foreign Military Financing grants that would be made available to Taiwan to use to purchase U.S. weapon systems to defend against an invasion by China. While the Senate Foreign Relations-approved Taiwan bill would have authorized a total of $6.5 billion in FMF funding over a five-year period, including $250 million in fiscal 2023, the Reed amendment is significantly more ambitious.
Reed's amendment would authorize a total of $10 billion in FMF grants for Taiwan, spread evenly in $2 billion yearly increments from fiscal 2023 through fiscal 2027.
A separate proposal from Hawley would authorize $3 billion a year for five years to help arm Taiwan.
Critically, though, appropriations for Foreign Military Financing are made by the State-Foreign Operations appropriations title and not the Defense appropriations title, whose annual counterpart is the National Defense Authorization measure.
Taiwan does not currently receive any FMF grant support. But the perceived threat in U.S. lawmakers' eyes to the wealthy island's future has gone up significantly in the past year, since Russia launched its war on Ukraine and China's military conducted drills in August that practiced a blockade encirclement of the island.
Russia and more
Amid the brutal Russian war on Ukraine, senators are looking to bolster Eastern European allies and tighten sanctions on Moscow.
Illinois Democrat Richard J. Durbin, for instance, has proposed a Baltic security and economic initiative that would authorize spending $250 million a year to back Latvia, Lithuania and Estonia. Americans who are descended from those countries are well represented in Durbin’s home state.
Scott, meanwhile, would bar Defense Department contracts with entities doing business with Russia.
Another proposal that could garner bipartisan support is an amendment from California Democrat Dianne Feinstein to create a Space National Guard to complement reserve forces available to the other services, a proposal that the Pentagon has resisted.
The manager’s amendment includes some smaller immigration provisions but omits key measures that were included in the House version of the NDAA to help “documented dreamers” and Afghan evacuees.
The Senate amendment left out language that would help the children of work visa holders who “age out” of their parents’ immigration statuses when they turn 21 while they await government processing of their green card applications, known as “documented dreamers.”
And the amendment also excluded a series of House-passed measures that would increase processing capacity for special immigrant visas for Afghans who helped U.S. troops and make it easier for Afghan citizens to qualify for student visas. Those or other amendments could still be raised on the floor once the full Senate returns next month.
The Senate’s substitute amendment would extend for an additional six years existing provisions that relax visa requirements for migrant guest workers performing certain labor in the Northern Mariana Islands or Guam on H-2B visas.
Those visas are typically intended for temporary, nonagricultural labor. But defense policy bills from prior fiscal years have carved out an exemption, currently set to expire at the end of next year, that allows employers to hire H-2B workers for certain year-round labor in the two territories.
This exemption, proposed to be extended through December 2029, would continue to apply to H-2B visa holders who work either in construction for certain military projects or in health care facilities that serve members of the Armed Forces. Another section, also found in the House version, would make Portuguese citizens eligible for E-1 and E-2 treaty visas, which allow foreign citizens from nations engaged in trade and commerce with the U.S. to live and work in the country temporarily, assuming Portugal allows Americans to obtain similar status. Foreign citizens from dozens of other countries are already eligible for E-1 and E-2 visas.
Judicial privacy measure
The substitute amendment includes a long-languishing bill that would allow current and former federal judges to ask public-facing websites to remove personal information about themselves or immediate family members.
The bill is named for Daniel Anderl, the son of federal Judge Esther Salas who was killed in a 2020 attack at her New Jersey home. It had wide support from Democrats and Republicans for more than two years, as lawmakers have grown concerned over increased political violence, particularly directed against judges.
Last year the Senate Judiciary Committee voted 21-0, with one present vote, to send the judge bill to the floor. But efforts to advance the bill on the Senate floor were repeatedly blocked by Sen. Rand Paul, R-Ky., who sought to add similar protection for members of Congress.
The bill includes $5 billion for five years for the government to implement a new global health security and diplomacy strategy to be designed by the president specifically aimed at better responding to future pandemics.
The provision, originally introduced as an amendment by Sens. Jim Risch, R-Idaho, and Menendez, would require the president to design a strategy focused on pandemic prevention, preparedness and response in countries with “demonstrated need.” The strategy would need to be submitted to Congress no later than 180 days after the enactment of the bill.
The bill also directs the president to establish a United States Global Health Security Agenda Interagency Review Council, which would be responsible for collaborating with other countries to promote early detection and mitigation of infectious disease threats.
Some proposals, if they get a vote, are not likely to garner enough support to be adopted. But in some cases, with a slight twist, an amendment might get bipartisan backing.
On Afghanistan, for example, many Republicans continue to press for accountability for the Biden administration’s shambolic withdrawal of U.S. forces from that country.
One amendment, by Hawley, would declassify all intelligence related to the withdrawal — a sweeping step that is likely to face senatorial resistance.
However, more senators might be open to a proposal by Scott to create a Joint Select Committee on Afghanistan to investigate what happened and make recommendations moving forward.
Similarly, GOP efforts to push back on the Biden administration’s coronavirus vaccine mandate for U.S. troops exemplify how senators can vary their approaches to an issue.
Multiple Republican senators have proposed amendments that would take direct aim at the vaccine requirement and, one way or another, propose undoing it.
But others take more subtle approaches that could stand a greater chance of attracting at least a few Democratic votes.
Tennessee Republican Marsha Blackburn, for instance, has proposed barring the military from discharging servicemembers who refuse the vaccine without an allowed exemption as long as the services are falling short of meeting their so-called end strength goals for recruiting and retaining personnel.
And Oklahoma Republican James Lankford would require that uniformed personnel with at least 18 years of service who refuse the coronavirus vaccine be allowed to complete at least 20 years before they can be discharged for their refusal, with two decades being the minimum amount of service before a pension can be earned.
There are still more amendments that are not likely to be adopted but may still get votes.
For Democrats, they include a proposal by Durbin to bar funding for continued operation of the U.S. military prison at Guantánamo Bay, Cuba, and for removal of statutory restrictions on closing that facility and moving detainees elsewhere.
Durbin also offered an amendment that would remove from U.S. law all authorizations for use of military force in foreign battlefields, including those AUMFs, as they are called, that provided the legal bases for invading Iraq in 1991 and 2002.
The repeals would take effect six months after enactment of the fiscal 2023 NDAA. Durbin’s proposal would also mandate that future AUMFs expire after a decade.
Another Democratic proposal that is unlikely to be adopted is an amendment backed by several liberals that would roll back the bill's $45 billion increase in spending authorization.
This report has been corrected to reflect that an amendment related to collective actions in the oil market by Sen. Charles E. Grassley is separate from the substitute amendment introduced Tuesday.
Rachel Oswald, Suzanne Monyak, Michael Macagnone and Jessie Hellmann contributed to this report.