Congress Will Scramble To Pass Crucial Defense Legislation After Midterm Elections

Less than two weeks before the midterm elections, a handful of races that could turn the Senate majority over to the GOP remain too close to call. Two, in Louisiana and Georgia, may go into runoffs, meaning control of the Senate in the next Congress may not be decided until Dec. 6, or even Jan. 6 -- after the current Congress expires.

In what one senior Republican Senate aide described as a kind of doomsday scenario -- unlikely, but still a worrying possibility -- this uncertainty, or an imminent transfer of control, could derail deliberations on a full slate of crucial defense legislation in the current Congress.

When Congress reconvenes on Nov. 12, it will have roughly four full weeks to pass:

-- A $1 trillion-plus omnibus spending bill, including a roughly $550 billion defense appropriations bill, with nearly $60 billion for Overseas Contingency Operations (or another stop-gap measure to extend the continuing resolution expiring Dec. 11)

-- The National Defense Authorization Act

-- The specific authorization for the Pentagon’s program to train and equip vetted Syrian rebels, also expiring Dec. 11 (or it could be folded into the NDAA)

Having pushed much of the must-pass legislation to the lame duck session after the November elections, Congress will likely fold the annual defense appropriations measure and funding for the response to Ebola and the Islamic State into a behemoth omnibus bill to fund the government for the remainder of the fiscal year, according to several Senate aides.

Debate over a potential new Authorization for the Use of Military Force (AUMF) in Iraq and Syria will likely be part of the passage of the annual NDAA.

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“Our response to Ebola, the train-and-equip money [for Syria], the defense appropriations bill -- those conversations will likely happen as part of an omnibus spending bill in the lame duck,” a senior Democratic aide told Defense One. “The bigger questions about broader authorization … the potential consideration of an AUMF, post-elections, would happen as part of the NDAA.”

The continuing resolution passed on Sept. 18 funds the government at the previous fiscal year’s spending levels and includes an amendment authorizing the Pentagon to train and equip moderate, vetted Syrian rebels to fight the Islamic State, as well as nearly $90 million to respond to the Ebola outbreak – but it expires on Dec. 11.

Before the vote, some lawmakers expressed concern it was being sold as broader authorization for the operation against the Islamic State, and others pushed for a longer resolution so that the new Congress -- with the GOP potentially controlling the Senate -- could set spending levels. By sunsetting the continuing resolution on Dec. 11, both parties agreed to put off a more permanent spending solution, and the war powers debate, until after the elections.

Sen. Dick Durbin, the number two Democrat in the Senate and the chairman of the Appropriations Subcommittee on Defense, has said senators want to vote on an AUMF for military operations in Iraq and Syria after the election. But House Speaker John Boehner, R-Ohio, said it should wait for the new Congress, and a request from the president. “Doing this with a whole group of members who are on their way out the door, I don’t think that is the right way to handle this,” he told The New York Times.

Don Stewart, spokesman for Senate Minority Leader Mitch McConnell, R-Ky., told Defense One that politicking around the 2014 elections has put Congress into a corner. “All the things that need to get done are still gonna have to be done, and especially if the president decides to do an attorney general nomination, or to pull this immigration stunt – we could have a very complicated lame duck,” he said. “But defense authorization is a bipartisan bill … the fact is we will have to take care of the troops.”

Congress has passed the NDAA every year for 53 years, but in recent years, it has been a nail-biter. Last year, after months of inaction, political wrangling over the amendments process forced the bill to be passed in a midnight-hour conference procedure. President Barack Obama signed the bill into law the day after Christmas.

Senate Armed Services Committee Chairman Carl Levin, D-Mich., and ranking member Jim Inhofe, R-Okla., have pushed lawmakers to get their amendments in early so as to avoid a repeat, and so far, 239 amendments have been filed, Levin spokeswoman Kathleen Long said. “We expect the bill to be considered during the lame duck session,” Long said, but as for when the bill will see floor time, she responded: “You can check with the majority leader’s office on that one.” (The office of Sen. Harry Reid, D-Nev., did not respond to requests for comment.) As for a war powers vote, Long said that “no decisions have been made on whether, or how, an AUMF will be considered in the Senate.”

Stewart said there has been no discussion of post-recess floor schedule between the offices of the current minority leader and majority leader. “Sen. Reid still schedules the floor and we have no idea what the schedule is going to be for those,” he said. Reid and other Democratic allies cite Republican obstruction for the legislative delays.

Inhofe and Levin have been combing through the amendments over the recess, and they would like to see the Senate version of the NDAA brought up and passed before December to give the House ample opportunity to resolve differences. “Sen. Inhofe’s very confident they’re going to get the NDAA done this year and maintain the tradition of having this done for 53 consecutive years,” Inhofe spokeswoman Donelle Harder said.

But a Republican Senate aide told Defense One that despite such confidence, the process could be exacerbated by the midterms, limiting the ability “for it to be done the way it should be done,” with a full and open debate. “Because of the Louisiana and Georgia race run-off dates being so much later, and the Senate maybe being really close, and we can’t determine how it’s going to flip, it’s gonna make it much more likely we’re going to have to conference the bill, much like last year,” the aide said.

Senate Republicans have warned against passing a spate of legislation before the new Congress convenes in January. Sen. Ted Cruz, R-Texas, and Mike Lee, R-Utah, said in a September letter to Reid that they would oppose quick consideration of “any non-emergency, substantial and controversial legislation, nominations or treaties.” 

In response to whether the lame duck could become contentious if the majority flips after the midterms, another senior Republican Senate aide told Defense One, “Democrats might decide they want to have a last hurrah, but the typical psychology of losing the majority is they’re not chest bumping. There’s usually a reluctance in a switch to do any sort of out-the-door craziness.”

“I don’t believe any of the leaders want a conferenced bill,” Harder said. “They want to open the debate, they want the opportunity for open amendments. They believe our military deserves that discussion to be had among all the representatives of Congress.”

The senior Democratic aide agreed. “I think that there will be plenty of political and policy disagreements in the lame duck based on what happens, should there be a run-off,” he said. “But, there are so many big issues facing the country right now, irrespective of the election or its aftermath, and I think there will be --” he paused, correcting himself, “I would hope to see bipartisan cooperation on something like the NDAA, or the defense appropriations bill.”