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THE MONDAY BRIEF | Stephen Boyd’s weekly Capitol Hill briefing for Alabama’s business, financial, defense and government affairs executives.

The Good: NDAA is on the move, finally.

The House approved a compromise version of the National Defense Authorization Act (NDAA), jumpstarting a process that may result in final passage of the much anticipated bill in the Senate this week. The “must pass” legislation avoided a last-minute effort to attach controversial voting rights legislation. The House took the unusual step of moving the bill under suspension of the rules, which requires a two-third majority. The NDAA passed 350-80.

Each of Alabama’s House members supported final passage, except Rep. Mo Brooks.

The NDAA shapes key defense priorities and policies, and provides legal authorization for $858.4 billion in spending for Fiscal Year 2023, including $847 billion for the Pentagon and Energy Department weapons programs, which is 12% higher than FY2022 and $45 billion more than President Joe Biden requested. The legislation doesn’t actually provide DOD with money to spend; a separate appropriations bill (see below) is needed for that. But the NDAA authorizes substantial increases, including $278.8 billion for Operations & Maintenance, $163.1 billion for Weapons and procurement and $138.9 for Research and Development. Some of that is offset by inflation, of course.

Rep. Mike Rogers—as incoming Chair of HASC, he’ll lead this process in the House next year—said he was “proud of the many provisions in this legislation that will fortify our national security and keep our nation safe.” His office published a summary of Alabama-specific items here.

NDAA was one of the last chances to get legislative provisions across the finish line. Everything not passed at the end of the year dies and must be reintroduced in the next Congress.

What made the cut: A 4.6% pay raise for military personnel… a ban on federal contractors using Chinese-made semiconductor chips (an important national security step that could nonetheless create challenges for manufacturers)… a recension of an August 2021 mandate that the military services require COVID vaccinations for personnel… provisions providing additional assistance to Ukraine… up to $2 billion a year in military aid to Taiwan to counter Chinese aggression in the Indo-Pacific, and… unrelated authorizations for the Intelligence Community, Coast Guard, and major water resource projects around the country.

What got cut: Sen. Joe Manchin’s bill to streamline permitting for energy projects… the SAFE Act, closely watched by the finance and banking sector, to make it easier for cannabis companies to access banking services… a repeal of the 2002 Iraq War authorization, and… a House-passed bill (H.R. 6930) to encourage the forfeiture of assets owned by Russian oligarchs.

The Bad: Annual spending legislation moves at a snail’s pace.

Little progress has been made toward meeting the Dec. 16 deadline to approve government funding. A shutdown is not in anyone’s political interest, so the obvious next move is to extend the deadline, possibly to Dec. 23.

Less obvious is the ultimate outcome. For government managers, an omnibus spending bill that combines all 12 appropriations bills (and accounts for newly authorized spending in bills like the NDAA) is preferred. Absent an agreement on an Omnibus, a Continuing Resolution is needed, but for how long? It could take the form of a short-term extension punting these decisions to the new House Republican majority in January. Democrats will oppose that.  In the alternative, Congress could approve a CR extending last year’s funding levels to the end of FY2023. That outcome would negate much of the work by the appropriations committee over the last year.

Negotiators are playing hardball. Differences revolve around top line spending levels and the breakdown between defense and non-defense spending, especially after Congress already approved trillions in COVID-19 and climate change and health care reconciliation spending.

            Looking ahead: Expect House Democrats to publish their own omnibus proposal later today. That’s probably a non-starter. Talks will continue. These long running negotiations will come to a head soon.

…and, speaking of the Ugly.

The election of a new Speaker of the House has profound implications, not the least of which being that it elevates a politician who may have received as few as 150,000 votes in the last election to be next in line for the presidency after the Vice President. Closer to home, rank-and-file members must live with the political consequences of the Speaker’s decisions on major issues—decisions in which they often have limited input.

To win, an individual—it need not be a member of the House—must get a majority of the votes cast. That usually equals 218. The actual vote is often a formality and the outcome not in question, but that may not be the case in 2023. Republicans will hold only a slim majority—likely four seats. At least five hardliners have indicated that they will not support Rep. Kevin McCarthy, who won the party’s internal nomination to be Speaker in November.

Failure of any one individual to get a majority of the votes results in another round of voting. Theoretically, it could go many rounds, and that’s when it might get ugly.

Looking ahead: Time remains, and Rep. McCarthy may yet find the votes—but at what cost? Right-wing Republicans sent a letter demanding commitments on a range of issues, including the full reinstatement of the Motion to Vacate the Chair, a procedural step that would make it easier to dislodge the Speaker. The invocation of that Motion led to Speaker Joe Boehner’s eventual resignation in 2015. Speaker Nancy Pelosi’s allies had worked to dull the Motion’s teeth during her tenure.

If Rep. McCarthy can’t get a majority, who can? Incoming Majority Leader Steve Scalise, Rep. Patrick McHenry, and retiring Rep. Fred Upton have been mentioned. The calculus changes if moderate Democrats are willing to come across the aisle and support a centrist Republican. If that happens, the right-wing challenge has backfired.

Hallway Conversations…

  • NASA’s Orion spacecraft splashed down just off the Baja Coast at 12:40 ET Sunday. The return of the spacecraft after a successful 25-day Artemis I mission around the moon marks a major milestone for NASA’s Space Launch System and its quest to take humans back to the lunar surface and then beyond. The folks at Marshall Space Flight Center played a huge role in this significant accomplishment.
  • Just as soon as the dust settled on Sen. Raphael Warnock’s victory in Georgia, Democratic Sen. Kyrsten Sinema announced she is changing her affiliation to Independent. It remains to be seen what day-to-day impact this move will have. Democrats maintain the majority; perhaps Sen. Manchin is back in the driver’s seat.
  • Congress passed HR 8404, the Respect for Marriage Act. The bill requires that states recognize same-sex and interracial marriages performed in other states. It’s a response to concerns that the Supreme Court might reconsider precedents regarding marriage equality.
  • The House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol seems likely to make criminal referrals to the Department of Justice. DOJ is under no obligation to give those referrals special treatment. A more significant development will be if, when, and how the committee releases its investigative findings. DOJ has already arrested nearly 900 defendants in connection with capitol breach cases—including 15 in Alabama. Approximately 335 defendants have received sentences for their criminal activity.
  •  The Supreme Court heard oral arguments in 303 Creative LLC v Elenis, one of the most closely watched cases of the term. In 303, a Christian website designer wanted to expand her business to include wedding websites, but only for traditional marriages. At issue is whether a state law barring businesses that are open to the public from discriminating against gay people violates the First Amendment. Opinion due in June.
  • The Army selected Textron-Bell’s V-280 aircraft as the service’s new Future Long Range Assault Aircraft (FLRAA), which will slowly replace the UH-60 Blackhawk that is a fixture in South Alabama skies around Ft. Rucker. The contract could be worth upwards of $70 billion.

Stephen E. Boyd is a Partner at Horizons Global Solutions. Previously, he served as a Senate-confirmed Assistant Attorney General at the U.S. Department of Justice, Chief of Staff for Alabama members in both the U.S. Senate and U.S. House of Representatives, and as a Communications Director of the Senate Committee on the Judiciary. He resides in the Washington, D.C. area. Opinions expressed herein are his own. This news report is not intended to influence or persuade. Email Stephen at [email protected].

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