Senate Passes Revised HR 7776 – 2023 NDAA

Yesterday, the Senate completed action on the House Amendment to HR 7776, the vehicle for the FY 2023 National Defense Authorization Act. After rejecting a Republican amendment, the Senate voted to concur with the House amendment to the Senate Amendment to HR 7776 by a bipartisan vote of 83 to 11. As in the House vote the Nay votes were also bipartisan (6 Democrats and 5 Republicans). The bill, as amended in the House, includes a variety of cybersecurity provisions that have been discussed elsewhere.

The amendment considered yesterday was SA 6526, proposed by Sen Johnson (R,WI). It would have added a new §525A, Remedies for members of the armed forces discharged or subject to punishment under the covid–19 vaccine mandate. The amendment failed by a vote of  40 to 54, four Republicans joined the Democrats and six Republicans did not vote. The vote required 60 votes to pass, so it was not close.

Nine additional amendments to HR 7776 were proposed yesterday, none of them of any interest here.

The bill now goes to the President for signature, probably next week.

Senate Continues Consideration of HR 7776 – FY 2023 NDAA – 12-14-22

Yesterday, the Senate continued their consideration of the House Amendment to HR 7776. Two new amendments were introduced {SA 6521 and SA 6522}, neither of which are important here. A cloture motion was entered to consider the Manchin energy permitting amendment (SA 6513). A separate cloture motion was entered on the Schumer motion to concur with the House Amendment. A vote is scheduled on the first amendment on tomorrow. A vote on the second will occur immediately thereafter.

Senate Begins Consideration of House Amendment to HR 7776 – FY 2023 NDAA

Yesterday, the Senate began consideration of the House amendment to HR 7776. This is the revised version of the National Defense Authorization Act that was passed in the House last week. No votes have been scheduled yet. According to the Congressional Record, there is one actual (a number of ‘tree-packing’ amendments are listed but mean nothing) amendment to the House language that may be considered, SA 6513. This is Sen Manchin’s (D,WV) controversial Building American Energy Security Act of 2022 that has been offered every time that the Senate has taken up a ‘must pass’ bill.

I suspect that Manchin will get a vote on the bill this time, but it would have to be at a 60-vote margin to get opponents to go along with holding a vote without cloture. That 60-vote requirement for passage would almost certainly kill the amendment.

With the pending continuing resolution moving the last day of the 117^th Congress to at least December 23^rd, the Senate leadership has more room to get through an extended process on the underlying bill without agreeing to considering other odd amendments.

Committee Hearings – Week of 12-12-22

With both the House and Senate in what may be the last week of their lame duck session (and maybe not), there is a relatively light hearing schedule. Oversight and information gathering hearings predominate. There are two oversight hearings in the House that may be of interest.

DHS Intel and Analysis Oversight

On Tuesday, the Intelligence and Counterterrorism Subcommittee of the House Homeland Security Committee will conduct an oversight hearing of the DHS Office of Intelligence and Analysis. The witness list includes:

• Kenneth L. Wainstein, DHS

It is odd that there is no witness from GAO. Committees usually use the GAO to do the heavy lifting on background research for such hearings.

FITARA

On Thursday, the Government Operations Subcommittee of the House Oversight and Reform Committee will hold their biannual hearing on progress being made under the Federal Information Technology Acquisition Reform Act (FITARA). The Subcommittee will also be releasing their fifteenth FITARA Scorecard. The witness list will include:

• Chris DeRusha, OMB,

• Jason Gray, USAID,

• Carol C. Harris, GAO, and

• Jennifer Franks, GAO

On the Floor

The House agenda for the week currently includes four bills to be considered under rules, nothing of major import here. The big issue for the week is the 2023 spending bill, the current CR expires Friday night, with nothing officially available yet. There are 39 bills that will be considered under the suspension of the rules process with lots of postal naming bills.

One of those 39 bills will be followed here; HR 7077, the Empowering the U.S. Fire Administration Act. The Senate amended the bill last week and the House will likely accept the Senate amendment today.

The Senate does not publish a weekly agenda in the same way as the House, but beyond some more judicial nominations, the Senate is likely to take up HR 7776, the 2023 NDAA. This is a must pass bill there could be some issues delaying the consideration. And, of course, the Senate will have to deal with whatever the House does with the spending bill.

Review - HR 7776 Cyber Language – 2023 NDAA

Last week, Rep Smith (D,WA) introduced H Res 1512, the bill that was the vehicle for the House’s consideration of the National Defense Authorization Act (NDAA). The Resolution provided an amendment in the form of substitute language for HR 7776 that was the actual working of the NDAA. H Res 1512 was adopted by the House and HR 7776, as amended now goes to the Senate for action.

The NDAA contains cybersecurity language in both the military portions of the bill and many of the other Divisions that were added to this must pass legislation. There are 19 separate cybersecurity related sections in the eleven Divisions within the bill.

Moving Forward

The Senate will take up the bill this coming week. With the bipartisan opposition in the House coming from the extreme wings of both parties, we should expect to see some opposition to this bill. If this were solely about a straight up vote on the bill, there would probably be more than 60 votes to move this bill forward. But with the time constraints caused by the end of the session and the need to pass some sort of spending bill, the small minority holds the key to passage of this bill since they can tie up the Senate by insisting on the full debate timelines available in Senate Rules; short cutting those timelines requires unanimous consent.

Majority Leader Schumer (D,NY) is unlikely to allow any amendments to HR 7776 as that would require sending the bill back to the House for an additional vote. He does have the power to allow ‘unanimous consent’ quick votes on favored pieces of legislation as a bargaining chip for allowing HR 7776 to proceed quickly.

 

For more details about the cybersecurity language in the bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-7776-cyber-language - subscription required.

House Passes HR 7776 – 2023 NDAA

This afternoon the House took up H Res 1512 (Rules Committee Print) and passed it by a strongly bipartisan vote of 350 to 80; even the Nays were bipartisan (45 Democrats and 35 Republicans). The resolution passed under the House suspension of the rules process, requiring a 2/3 vote for passage). As a result of the passage of that Resolution, the House is deemed to have concurred with the Senate Amendment to HR 7776 with an amendment in the form of substitute language. That substitute would make HR 7776 the “James M. Inhofe National Defense Authorization Act for Fiscal Year 2023”.

HR 7776 now goes to the Senate for consideration. Based upon the results in the House there should be enough Democrats and Republicans voting yest to overcome the 60-vote requirement to close debate on the bill. There could, however, be enough opposition to string out the consideration process through next week.

House to Consider NDAA, Maybe

The House is currently scheduled today to take up an as of yet unintroduced resolution on the National Defense Authorization Act after it concludes work on approving the Senate Amendment to HR 8404, the Respect for Marriage Act. The unusual resolution (Rules Committee print) would:

“Resolved, That upon the adoption of this resolution the House shall be considered to have taken from the Speaker’s table the bill, H.R.7776, with the Senate amendment thereto, and to have concurred in the Senate amendment with the following amendment:”

The 4409-page resolution then goes on to provide the amendment (substitute language) that would be applied to HR 7776, making it the “James M. Inhofe National Defense Authorization Act for Fiscal Year 2023”. As best I can tell, this is the same language that the House Rules Committee was supposed to take up yesterday but did not because of further backroom negotiations to add more stuff to the NDAA.

This is an unusual legislative gimmick that the House leadership is using to move the NDAA forward. It is a perfectly legitimate use of House Rules, but it is certain to raise the ire of conservative House Republicans. It will probably reduce the number of Republicans that will vote for the NDAA in the House. It will have no effect on how the Senate deals with HR 7776.

NOTE: I will resume my review of the ‘new’ substitute language for items of interest here. It will probably not be completed by the time this resolution comes to a vote in the House.

House to Consider Amendment to HR 7776 – FY 2023 NDAA

The House is scheduled to take up an amendment to HR 7776. As I mentioned last night, the Rules Committee will formulate the rule to consider this later this morning, but the House Majority leader is confident that “The Rule will provide for one hour of debate equally divided and controlled by the Chair and Ranking Member of the Committee on Armed Services.” I see no reason to dispute that confidence.

There should be at least some measure of bipartisan support for this version of the NDAA.

New Rules Committee Hearing for HR 7776 NDAA Amendment

The House Rules Committee has just announced that they will resume their hearing on HR 7776 which is being used as the vehicle for the 2023 National Defense Authorization Act tomorrow morning at 11:30 am. While the hearing was initially scheduled to be held yesterday, the Armed Services Committees (both Senate and House) leadership had not yet finished their negotiations on the substitute language that will be offered for HR 7776. That final version of the substitute language was just post to the House Rules Committee web site.

HR 7776 is currently the Water Resources Development Act of 2022. It was originally passed in the House on June 8^th, 2022. The Senate amended the bill and then passed the revised version on July 28^th, 2022. In both cases there was strong bipartisan support for the version adopted.

A temporary change in House Rules was passed earlier today allowing for floor consideration of bills on the same day that a rule was approved for that consideration in the Rules Committee. This is a relatively standard end of year move to allow quick consideration of must pass bills like the NDAA.

I will be doing a more detailed look at the NDAA language, but a quick scan of the Table of Contents of the proposed language shows that the bill would include

• NDAA language (Divisions A thru E),

• Intel Authorization Act (Division F),

• Homeland Security language (Division G),

• Water Resources (probably the Senate passed language from HR 7776) (Division H),

• 2023 Coast Guard Authorization Act (Division K)

Committee Hearings – Week of 12-4-22

This week with both the House and Senate in Washington trying to close out the lame duck session, there is a relatively limited committee hearing schedule. There is just one hearing of potential interest here, a House Rules Committee hearing on a new NDAA.

Today, the House Rules Committee will hold a hearing on four pieces of legislation that will include HR 7776 which will be used as the vehicle for the 2023 National Defense Authorization Act. No text is currently available.

Back in July, the House passed HR 7900, the FY 2023 National Defense Authorization Act, by a substantially bipartisan vote of 329 to 101. The Senate has attempted to take action on that bill, but has failed to come to an agreement that would be acceptable to 60 Senators to be able to move to an actual vote.

Commentary

With no language yet being offered for the substitute language that will be considered today, the Rules Committee will be relying on the backroom work being done by the bipartisan leadership of the two Armed Services Committees in developing that language. The rule that will probably be adopted today would be a closed rule with limited debate and no floor amendments. There is a distinct possibility that the HR 7776 portion of today’s hearing might be postponed until tomorrow while negotiators continue to work out the final details of the substitute language.