S 2731 Introduced – Skinny NDAA

Last week Sen. Inhofe (R,OK) introduced S 2731, the Essential National Security Authorities Act for Fiscal Year 2020. This is a ‘skinny’ national defense authorization act (NDAA), with the bare minimum authorization requirements needed to keep the defense apparatus of the United States in operation through FY 2020. Both the House (HR 2500) and Senate (S 1790) passed expanded versions of this bill earlier in the year, but have not yet been able to work out a compromise version of the bill in conference committee.

Cybersecurity

This ‘skinny’ NDAA only contains 2 of the 49 cybersecurity sections found in Title XVI, Division A of the original bill:

§1627. Authority to use operation and maintenance funds for cyber operations-peculiar capability development projects.

§1639. Extension of authorities for Cyberspace Solarium Commission.

Moving Forward

The NDAA is a ‘must pass’ bill. While there is still a chance that the conference committee will work out their differences on the previously passed versions, Inhofe is concerned enough to offer up this bill as a minimum workable solution. I suspect that this bill could be passed in the Senate under their unanimous consent process if the failure of the conference committee became obvious enough; though I would have been more hopeful if Sen Reed (D,RI), the Ranking Member of the Senate Armed Services Committee had signed on as a cosponsor of the bill.

There is also a chance that the conference committee could use this language as a new starting point for working out a compromise version of the NDAA.

Commentary

There is an interesting set of remarks [pg S6246] by Inhofe in the Congressional Record on the introduction of this bill. He explains the dangers of a ‘must pass bill’; everyone wants to add on language that probably would not pass on its own. If that tendency is not adequately controlled, we end up in our current apparent stalemate.

This also provides a good point for the discussion of the term ‘control of the Congress’. Typically, most people mean that a party controls Congress when it has a majority of the elected legislators in both the House and the Senate. That is not exactly the case. Under current rules, the Senate requires a vote of 60 Senators to begin consideration of most legislation. Thus, a minority of 41 Senators can block legislation in that body. True legislative control of the Senate (again under current rules) requires a party to have 60 Senators.

There have been frequent calls for doing away with, or at least restricting, this requirement for a super majority to pass legislation in the Senate. The majority party frequently complains that they are being hamstrung in their efforts to pass legislation that they have promised their voters. And, to be fair, this is frequently true.

Unfortunately, we have seen in recent years what the probable outcome would be if this supermajority requirement were removed or even seriously restricted. Whenever the opposition party gained control of the Senate it would spend a great deal of its time and effort repealing laws and rules established by the other party. Now there are certainly instances where one could fairly describe this as a good thing, but business and society both require a certain amount of stability in the rules and regulations under which they operate. If the Senate could unwrite laws and regulations every two-years, nothing would ever get done and we would have regulatory anarchy.