A House/Senate compromise version of the National Defense Authorization Act (NDAA) for FY 2023 was released late on December 6, and the House passed the measure by a vote of 350-80 on December 8 under rules that expedited consideration of the proposal. 45 House Republicans and 35 Democrats voted against the bill, with 2 Republicans not voting.
The Senate passed the measure on December 15, by a vote of 83-11 with 6 Republican Senators not voting. While President Biden publicly objected to the inclusion of a provision that repeals a COVID-19 vaccination requirement of the Department of Defense, he is nevertheless expected to sign the measure into law.
An annual NDAA is hugely important to the Washington, DC, policymaking community; not just to those in political office but also to hundreds of interest groups and the defense industries. Unlike just about every other piece of legislation considered by Congress each year, it is almost unthinkable that a comprehensive NDAA would not be enacted, and delays are viewed as potentially endangering the strength of US national security.
The NDAA is massive, covering so many special interests and defense policy considerations, most of which are mostly inconsequential to average Americans.
That being the case, let's break down the most important things to know. _________________________
TOP LINE FUNDING
The FY 2023 NDAA provides $858 billion in defense program funding "authorizations" (i.e., the authority to appropriate/spend funding) primarily for the Defense Department, and also for other defense-related programs outside of the Department (e.g., intelligence, some nuclear activities, etc.). This is referred to as the defense "Top Line," or the total funding authorized under the NDAA. The total is $45 billion (5.5%) above the Biden Administration's $813 billion FY 2023 defense budget request.
If fully appropriated, the Department of Defense alone would receive an estimated $75 billion authorized funding increase over its FY 2022 enacted appropriated funding level, or about a 10% increase ($742 billion to $817 billion). The majority of additional funding authorizations are intended for military pay and benefits, increased weapons/systems procurement, and inflation-related adjustments.
Authorization funding authority under the NDAA, however, is not the final word on actual total funding provided for the year. A separate appropriations process in Congress will provide funding based final NDAA authorization levels. It is not clear at this time how much appropriations will diverge from the NDAA level for defense, if at all. It is entirely possible that because of the current stalemate on the appropriations process for FY 2023 as a whole, defense and other Federal programs will be funded at FY 2022 levels temporarily into the next Congress, or potentially for the full fiscal year.
With high inflation and a heavy reliance on contracts, no funding increases to at least relieve inflationary pressures could be hugely problematic for the Defense Department. The way forward on FY 2023 appropriations will become more clear over the next week or two of the congressional lame duck session.
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LINE-ITEM MATTERS
Here are some of the key line-item highlights from the proposed NDAA:
Pay Increase. Authorizes a 4.6% pay increase for members of the military, increases basic needs allowance eligibility and housing allowances, and provides additional funding for commissaries to address rising food costs.
COVID-19 Vaccination Policy. Requires the Department of Defense to drop its COVID-19 vaccination requirement for members of the military within 30 days of the NDAA's enactment.
Sexual Harassment. Requires independent trained investigators outside of immediate chains of command to investigate claims of sexual harassment.
SEAL Training Review. Requires that the DOD Inspector General conduct a comprehensive review of the medical care for individuals undergoing Navy Sea, Air, and Land (SEAL) training, likely in response to recent trainee deaths.
Mental Health. Increases confidentiality requirements for mental health services for members of the Armed Forces as part of the Department's suicide prevention efforts.
European Defense. Provides a $6 billion funding authorization for the European Deterrence Initiative (EDI), an effort primarily intended to counter Russia's aggression in Europe, and $800 million for the Ukraine Security Assistance Initiative.
Ukraine Assistance Oversight. Includes measures intended to strengthen end-use monitoring of Ukraine assistance, and also requires an assessment of the Federal oversight framework.
Russian Gold. Includes provisions of the Stop Russian GOLD Act, that imposes sanctions on persons knowingly participating in any significant transaction of gold with Russia.
Pacific Defense. Provides an $11.5 billion funding authorization for the Pacific Deterrence Initiative (PDI), an effort primarily intended to address China's growing military aspirations on the pacific region.
Taiwan Defense. Includes the proposed Taiwan Enhanced Resilience Act, that would authorize $10 billion over the next five years to help modernize Taiwan’s security capabilities to help deter China's military aspirations against the island nation.
Stockpiling Critical Materials. Provides more than $1 billion for National Defense Stockpile Transaction Fund acquisitions of strategic and critical materials, and expands authorities to address shortfalls.
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NOT INCLUDED
Here are some of the key items considered, but not included in the proposed NDAA:
Oil & Gas Permitting Reform. The proposal does not include permitting reform proposals advanced by Senator Joe Manchin (D-WV) that the Senator had also attempted to include in August budget legislation.
Military Pay Inflation Bonus. The proposal does not include a House provision adding an additional 2.4 percent "inflation bonus" on pay for members of the military and Defense Department civilians making less than $45,000 a year.
Selective Service & Women. The proposal does not include a provision of a Senate committee version of the NDAA that would have required women to register in the Selective Service System. Registration in the system is required by law for men age 18-25.
Turkey F-16 Sales Restrictions. The bill does not include a House provision putting conditions on Turkey for the U.S. sale of 40 F-16 fighter jets and 80 modernization kits. This will paves the way for the Biden Administration to decide on the sale with particular consideration of any current Turkey-caused tensions with Greece, as well as continued delays on Turkey's ratification of Finland and Sweden joining NATO.
Extension of Afghan Visa Program. The bill does not include a provision to extend the Afghan special immigrant visa (SIV) program for an additional year. Critics believe that eligibility rules under the program are not sufficiently rigorous, while supporters argue that letting the authority expire could leave persons behind that helped the United States in Afghanistan. More than 90K persons have applied for an Afghan SIV. Persons can still apply for an Afghan SIV through the end of 2023.
War Powers Restrictions. The bill does not include a House provision that would have repealed 2002 authorization law guiding use of military force against Iraq, which has no sunset date and which critics believe has been/can be used to justify military actions without adequate input and authorizing guidance by the Congress.
Small News & Big Tech. The bill does not include the Journalism Competition and Preservation Act (JCPA), a proposal intended to compel tech companies to negotiate payout terms "in good faith" with smaller news publishers for distributing their content.
Cannabis Reform/SAFE Banking Act. The bill does not include the provisions of the proposed SAFE Banking Act, legislation intended to ensure cannabis-related businesses can participate in the financial system, most importantly by ensuring that financial transactions involving activities of legitimate cannabis-related business would no longer be considered as generating proceeds from unlawful activities. There also were other comprehensive cannabis reforms desired by key Members of Congress, but these were excluded.
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