Congress Passes Record Defense Bill, Late Again

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There was white smoke coming out of Congress. Late on Dec. 15, the message was, habemus legem. Congress passed the 2023 National Defense Authorization Act. However, a 2023 budget was still nowhere to be seen as Congress extended the continuing resolution until Dec. 23.

The annual defense bill came some 75 days after the start of the fiscal year. That’s worse than usual. According to a Congressional Research Service report, “FY2022 National Defense Authorization Act: Context and Selected Issues for Congress,” since 1977, on average Congress completes the NDAA 42 days after the start of the fiscal year.

The 2023 act merged the House and Senate versions marked up during the summer and authorizes a record $857 billion for national defense: $816.7 billion for the Pentagon, $30.3 billion for the Department of Energy, and $10.6 billion for “activities outside NDAA jurisdiction.”

The act authorizes $45 billion more than the White House requested. Congress added $19 billion to compensate for inflation.

For the Air Force, it authorizes five more F-35A joint strike fighters and 10 HH-60W combat rescue helicopters than the initial request and it prohibits retirement of Block 20 F-22 jet fighters, while supporting divestment in the venerable A-10 Thunderbolt II, the subsonic attack aircraft better known as the “Warthog.”

Congress also plussed up funding for shipbuilding, munitions production and advanced technologies such as unmanned systems, artificial intelligence, quantum computing and electronic warfare tech, according to a Senate summary.

However, due to the delay in passing the NDAA and the continuing resolution, new starts have been on hold and the Defense Department has already lost nearly $18 billion in purchasing power in fiscal year 2023, according to a report by the National Defense Industrial Association, “How Inflation Hurts America’s National Defense and What We Can Do About it.”

That number will increase until Congress passes a 2023 budget.

One person who had a front row seat to the dysfunction is former Rep. Mac Thornberry, R-Texas, who served as chair of the House Armed Services Committee. During an interview at a recent conference in Virginia, National Defense asked what it will take to break the annual congressional cycle of criticizing the defense budget request for being too low, adding large sums in markup and then failing to pass a final NDAA and budget before the beginning of a fiscal year.

“There are so few legislative vehicles that go through the Congress anymore that everybody wants to put everything on the omnibus or the NDAA,” he said. “And so, part of the reason it’s so slow is because it’s all this stuff that’s not related to defense anymore. And we had that problem, and it’s just gotten worse and worse.”

That phenomenon was evident in the closing days of 2022 as legislators attempted to attach a host of non-defense amendments to the 2023 NDAA. Senators filed more than 900 amendments. While many were military in nature, others not so much.

Senators rejected a measure to allow banks to conduct business with legal marijuana operations. And an attempt by Sen. Joe Manchin, D-W.V., to include an infrastructure permitting reform measure dragged out the proceedings.

“House and Senate Democrats are still obstructing efforts to close out the NDAA by trying to jam in unrelated items with no relationship whatsoever to defense,” said Senate Minority Leader Mitch McConnell, R-Ky., in an early December floor statement.

Which gets back to Thornberry’s point — when there are few bipartisan pieces of legislation each year that members can attach pet projects to, they pile on the must-pass items like the NDAA.

“The Senate and the House have to have floor time in May to do the bills,” he said. “Then the conference can happen before the end of the fiscal year, but you’ve got to restrict it to defense. You can’t keep allowing all these other issues to catch a ride,” he continued.

That requires congressional leadership to move more legislation so “it’s not just three or four bills a year that everything has to attach to,” he said.

One thing that could help the process, he said, is the Commission on Planning, Programming, Budgeting and Execution, or PPBE, that Congress created in the 2022 NDAA. It is tasked with reviewing the budget process, long criticized for being outdated and overly restrictive. The commission’s final report is due in fall 2023.

One concept gaining traction is multi-year portfolio funding. That would allow the department to shift gears and move away from programs that aren’t panning out and shift funds to more promising technologies.

“I’m in a lot of conversations, including with some of the commissioners, about what some of the options may be,” Thornberry said.

Some of the ideas are “countercultural,” he said, and “are going to have to shake things up a little to get it done.”

Some have cast doubt that appropriators would be willing to give up control and give the Defense Department portfolio flexibility. Thornberry disagreed.

There are appropriations committee members interested in the idea, he said. “But if you have full transparency in a timely way — so the Pentagon has to say where every dollar goes when it’s spent — then I think the appropriators are much more willing to give them more leeway.”

Especially when it comes to acquiring rapidly evolving technology like software, that kind of flexibility “just makes sense,” he added.

If only that were the threshold for getting things done on the Hill. Passing a budget on time each year makes sense, too.

Topics: Budget, Defense Department