With less than two months left in 2021, lawmakers are warning that time is growing short for Congress to sort through the procedural hurdles necessary to get the 2022 National Defense Authorization Act signed into law.
In a press conference Nov. 2, 13 Republican senators called on Sen. Chuck Schumer (D-N.Y.), the majority leader, to immediately bring the 2022 NDAA to the floor of the Senate for a vote. The Senate Armed Services Committee reported its version of the bill to the full Senate on Sept. 22, and the House passed its version a day later. Once the Senate votes on its bill, the two versions will have to be reconciled in conference, voted on again, and sent to the President’s desk for signature.
“Even though the National Defense Authorization Act is bipartisan and fulfills Congress’s most important duties—to provide for the common defense and take care of our troops—Sen. Schumer still won’t let us vote on the bill,” SASC Ranking Member Sen. Jim Inhofe (R-Okla.) said in a statement. “Meanwhile, in the three months since the Armed Services Committee passed this bill, the threats we face around the world—China and Russia, North Korea and Iran, terrorist organizations in Afghanistan—have only gotten worse. By not prioritizing national security now, Sen. Schumer is sending a terrible message to our troops, allies, and adversaries.”
Inhofe added that by not bringing the bill to the floor, Schumer “has almost guaranteed this year will be one of the latest starts to the bicameral conference process ever.” In the past decade, the Senate has passed its version of the NDAA in November twice and December twice.
Inhofe and his fellow Republicans’ concerns were echoed across the aisle by Rep. Adam Smith (D-Wash.), chair of the House Armed Services Committee. Speaking with reporters, Smith said he “can’t argue with the Senate Republicans on this issue. There is no reason that this bill has not been put on the floor in the Senate,” according to Politico.
The NDAA is typically considered “must-pass” legislation and has been approved by Congress every year for more than half a century. While it does not actually appropriate the money spent on defense, the policy bill does authorize the appropriations and sets a host of policies and restrictions. It also typically sets a number of reports for the Pentagon to deliver to Congress, and without it, certain special pay authorizations will expire.
While more than 50 days are still left until the new year, shepherding a bill through the necessary parliamentary procedures could take weeks.
First, Schumer has to file a motion to proceed to a full vote on the bill, said Martin B. Gold, a partner at Capitol Counsel law firm and an expert on congressional rules. Once he does so, he can file a cloture motion on the motion to proceed in an attempt to limit debate. But once he does, Senate rules call for an intervening session before the cloture vote, which requires 60 votes to succeed.
Even then, Gold told Air Force Magazine, the rules call for up to 30 hours of debate before the actual vote on the motion to proceed. If the full time is used and the Senate isn’t in session around the clock, four days can pass from filing a motion to proceed to actually voting on it. And then the process restarts with the vote on the bill itself, with the same requirements for an intervening session and up to 30 hours of debate after cloture.
“The general rule of thumb for a bill like the NDAA is that you can anticipate something in the neighborhood of two weeks, start to finish, motion to proceed to final passage,” Gold said. “It’s an approximation.”
These timelines can be bypassed with a unanimous consent agreement, Gold noted, but just one objection would trigger the process. Ways exist to compress the timeline—by keeping the Senate in session nonstop and over the weekend.
Of course, once the Senate passes its bill, the process isn’t over. The Senate and the House will have to meet in conference to hash out the differences in their versions, then return the reworked bill to each chamber for a final vote.
The length of time it takes to work through the conference process is murky, but a Senate Armed Services Committee aide told Air Force Magazine that the committee typically plans for around three weeks to pass between the Senate and House coming to a basic agreement for a compromise and final passage in both chambers.
Advance “administrative” work can and is being done, the aide said, to ensure the conference process moves as quickly as possible.
Still, a time crunch is coming—both the Senate and House are scheduled to be in recess from Nov. 8 to 12, then again the week of Thanksgiving, and once more starting Dec. 13 until the end of the year. That leaves just three weeks of scheduled session, as Congress also debates a host of other issues, including President Joe Biden’s social spending bill and a dozen appropriations bills. Meanwhile, the continuing resolution currently funding the government expires after Dec. 3.
“The most powerful nation on Earth is running on autopilot,” Sen. Patrick Leahy (D-Vt.) said in a speech on the floor of the Senate on Nov. 4. “And we only have four weeks until the government shutdown, unless Congress takes action. It’s not a theoretical exercise. The actions we take or don’t take in this chamber, with respect to the fiscal year 2022 appropriations bills, affect people’s lives, but also the direction of this nation.”