Defense bill, passed 62 years in a row, faces partisan minefields in Senate, House

The annual Defense authorization bill, which has passed on time 62 years in a row, is getting bogged down in battles over issues ranging from abortion to the government’s surveillance authority, threatening to derail its prospects of passing Congress before Christmas.  

With a battle over the annual spending bills postponed until January, the National Defense Authorization Act is one of the few must-pass spending bills left on the agenda. But it’s in real danger of getting stuck.

Senate and House conservatives are warning congressional leaders not to add a short-term surveillance authorization to the bill, and they are demanding it include significant military policy reforms.

Specifically, conservatives are taking aim at the Pentagon’s policies that reimburse the travel expenses of service members who obtain abortions, pay for gender transition surgery and promote critical race theory. 

“We didn’t come here, we didn’t change the rules in January, we didn’t have the fights we’ve had this year to go back to Four Corners-deal negotiating to jam through bad legislation the American people don’t want that doesn’t reform our military to focus on its mission rather than social engineering,” said Rep. Chip Roy (R-Texas), the policy chair of the House Freedom Caucus. 

Senate Steering Committee Chair Mike Lee (R-Utah), who is leading a push to reform the surveillance program, warned leaders Wednesday not to attach a massive supplemental bill funding military aid to Ukraine or other nonrelated legislative measures to the Defense authorization bill. 

“Increasingly, the NDAA has become the non-appropriations vehicle, Christmas tree vehicle of choice. Like, other than the [appropriations] bill, that’s the catch-all,” he said. “We talked about this a little bit at lunch today. We need to actually have the NDAA be about Defense authorization and not whatever somebody wants to dream up.”  

Lee said if leaders try to add money for Ukraine, Israel, the Indo-Pacific region and humanitarian assistance for Ukraine and Gaza, it would spark “legislative Armageddon.”  

“I think they’ll try to, but I think they should not,” he said.  

Lee also voiced opposition to adding a short-term reauthorization of Section 702 of the Foreign Intelligence Surveillance Act until mid-January or early February.

“I do oppose that effort,” he said. “Right now, there is not a reason to do that.” 

Sen. Rand Paul (R-Ky.), who wants to end the practice of obtaining FISA-related warrants in secret court, said he will raise a point-of-order objection to adding a short-term FISA extension to the Defense bill.   

“I’m not for extending FISA. I think FISA’s an unconstitutional program. It would be less bad if it were reformed, but without reform, we shouldn’t reauthorize it,” he said.  

The short-term extension under consideration would set the stage for a longer-term extension being added to any spending deal Congress reaches next year.

“What I hear is they’re going to put it on [the Defense bill] for a few months, but the danger of that is that when it rolls into a spending bill, then they just reauthorize it [as part of a spending deal] and we never have the debate,” Paul said. “FISA allows warrants that don’t have to meet the Fourth Amendment standard.” 

The annual Defense authorization bill traditionally has strong bipartisan support, but with the 12 regular appropriations bills on the sideline until 2024, it is becoming a magnet for controversy. 

Another obstacle is a behind-the-scenes battle between Senate Banking Committee Chair Sherrod Brown (D-Ohio) and House Financial Services Committee Chair Patrick McHenry (R-N.C.) over McHenry’s legislation to provide market rules for cryptocurrencies and other digital assets. 

Senate Democrats say McHenry is blocking the addition to the defense legislation of Brown’s bipartisan bill to impose new sanctions and anti-money-laundering penalties targeting the fentanyl supply chain, including Chinese chemical suppliers, unless his digital asset market structure legislation is also added.

“McHenry wants his crypto bill passed. His crypto bill is written by industry; it’s going nowhere. Crypto’s not had a good three months, as you’ve noticed — everything from FTX to the other scandals, to Hamas, to fentanyl,” said Brown, who emphasized that his fentanyl bill passed out of the Senate Banking Committee unanimously.  

The FEND Off Fentanyl bill, which was sponsored by Sen. Tim Scott (R-S.C.), was included in the Senate’s Defense authorization bill before it passed in July.  Brown is the lead co-sponsor. 

“This could block the whole thing,” fumed Brown, describing Republicans as “irresponsible” for “playing games” and being “willing to block NDAA based on a wish list for the crypto industry.”

Senate sources familiar with the conference negotiations on the Defense bill say Speaker Mike Johnson (R-La.) is backing McHenry’s effort to keep the Senate-passed fentanyl bill off the Defense authorization act unless McHenry’s digital asset market structure bill is also included.  

Spokespeople for McHenry and Johnson did not respond to email requests for comment.  

Another problem for the defense bill popped up this week when Sen. Josh Hawley (R-Mo.) threatened to use every procedural tool at his disposal to hold it up on the Senate floor unless it includes language to compensate the victims of nuclear contamination in his state.  

Hawley successfully amended the Senate’s Defense authorization bill in July to extend the Radiation Exposure Compensation Act to cover victims of improperly stored nuclear waste in the St. Louis region.  

That language, however, is now at risk of getting stripped from the bill, which would spark a fight on the Senate floor before Christmas.  

“I’ve talked to the Speaker directly, personally. I’ve talked to the [Senate] majority leader,” he said. “I will absolutely vote for this bill, including all the provisions I’m sure I won’t like in it. But I will absolutely vote for it … if the people of Missouri are taken care of. But if they are removed in some backdoor deal, we’re going to have a big problem.”  

Roy, a leading member of the conservative House Freedom Caucus, also vowed a battle in the House if congressional leaders try to pass what he would view as a “watered down” defense bill before Christmas. 

“They want to take this compromise, watered-down NDAA that they’re currently taking to conference committee — they say they’re conferencing it but they’re not. They’re doing a Four-Corners deal, they’re going to go jam it in the conference and then they’re going to take that, add FISA and try to jam it through [the House.] What we’re saying is, ‘No you’re not,'” he said.  

“You pack FISA on NDAA, I’m a hell no on that,” he said.  

“I’m sure that what they’re going to push through is likely abandon the abortion reforms, and I think that’s a mistake,” he added, referring to language included in the House Defense bill to bar the Defense Department from reimbursing travel expenses incurred by service members who get abortions.  

“We better get something significant. If we’re not getting abortion, are you getting transgender surgeries? If you’re not getting transgender surgeries, are you revamping critical race theory and [diversity, equity and inclusion policies?]” he added.  

This story was updated at 9:04 a.m. on Nov. 30.