Senate Passes Final FY2016 NDAA, Will President Veto It? – UPDATE

UPDATE, October 15, 2015:   The President has 10 days (excluding Sundays) to decide whether to sign or veto the bill after he receives it from Congress. As of today, Congress has not yet sent the bill to the President.  It is not unusual for a period of time to elapse between passage of a bill and sending it to the White House as clerks make “technical and conforming changes” to eliminate typos and ensure cross-references are correct, for example.

ORIGINAL STORY, October 7, 2015: The Senate today joined the House in passing the final version of the FY2016 National Defense Authorization Act (NDAA).   The bill now goes to the President, but White House spokesman Josh Earnest said last week the President would veto it.

The Senate passed the compromise version by a vote of 70-27. 

• Three Senators did not vote: presidential candidates Marco Rubio (R-FL) and Lindsey Graham (R-SC), and Pat Roberts, R-KS. 
• The no votes were cast by 24 Democrats, 2 Republicans (presidential candidates Ted Cruz, R-TX, and Rand Paul, R-KY) and 1 Independent (presidential candidate Bernie Sanders).
• The yes votes were from 49 Republicans, 20 Democrats and 1 Independent.

The party split is important because the Senate could end up voting on whether to override a Presidential veto.  Two-thirds of the Senate, 67 Senators, would have to vote in favor of overriding a veto for such a vote to succeed.  Today’s vote has the requisite number, though it is far from clear that all 20 Democrats would make the more difficult political choice to overturn a veto by their own President.

The House approved the compromise 270-156.  In the House 290 votes would be needed to override a veto, so that vote hinted that a veto would be sustained.

The veto threat is because the bill uses what its detractors call a “gimmick” to provide more money for defense than is allowed under the spending caps set by the 2011 Budget Control Act.  Republicans added $38 billion for defense in an off-budget account, Overseas Contingency Operations (OCO), to circumvent the caps.   Democrats also do not like the caps, but want them to be renegotiated for all spending, defense and non-defense.  President Obama, House Speaker John Boehner (R-OH) and Senate Majority Leader Mitch McConnell (R-KY) recently agreed to high-level budget talks, but Boehner’s imminent departure and the transition to a new House Speaker will complicate that effort.

The bill authorizes $604 billion for defense according to a Congressional Research Service (CRS) summary (other sources use other figures).  That includes $496.4 billion for DOD’s base budget plus $89.2 billion for OCO (another $18.5 billion is for atomic energy defense activities).  The OCO funding is $38 billion above the President’s request and, as noted, that spending is off-budget and does not count against the cap.

Republicans argue that the bill does not spend any money — it is an authorization, not an appropriation — and therefore should not get caught up in the broader budget debate.  They want the bill enacted because of its policy provisions and other guidance, with the budget issues dealt with in the appropriations process.  Democrats, however, feel that enacting this bill would set a bad precedent on the funding front.

Among the policy provisions in the bill is the number of RD-180 rocket engines the United Launch Alliance (ULA) would be able to obtain for national security launches.  The bill adopts the Senate position of allowing only nine more engines, rather than the 14 ULA wanted. 

Under a block buy contract signed in December 2013, before Russia’s actions in Ukraine chilled U.S.-Russian relations, ULA planned to obtain 29 RD-180 engines from Russia for its Atlas V rockets.  Following the geopolitical downturn, Congress decided that the United States should not rely on Russian engines to launch national security satellites.  In addition, it wanted the Air Force to allow new entrants like SpaceX to compete against ULA for national security launches.  The FY2015 NDAA put restrictions on how many RD-180s ULA could obtain for national security launches (they do not affect commercial or civil government launches).  ULA had completed purchase of 15 of the 29, while payments for the other 14 were not finalized.  The Air Force determined that only five of the 14 could be obtained under the terms of the FY2015 NDAA.  The Air Force and ULA have been seeking relief from the NDAA language, but the Senate, in particular, wants to hasten the transition from Russian engines to a new U.S.-built engine as well as allow competition. The Senate version of the FY2016 NDAA allowed four more to be obtained, for the total of nine.  That position was upheld in conference.

The bill has a number of other policy provisions related to space activities.  Among them is a restriction on the use of both FY2015 and FY2016 funds for the Defense Meteorological Satellite Program (DMSP) and the launch of the last satellite in that series (DMSP-20) until the Secretary of Defense (SecDef) and Chairman of the Joint Chiefs of Staff (CJCS) certify that the DMSP-20 launch is necessary and the most affordable solution to defense weather satellite requirements.  The bill also restricts funds for a DOD follow-on weather satellite system until the SecDef develops a plan for providing cloud characterization and theater weather imagery, briefs Congress on that plan, and the CJCS certifies the plan meets the needs of the commanders of combatant commands.  Furthermore, the bill prohibits DOD from relying on Russian or Chinese weather satellite data. 

DOD is still regrouping from the 2010 cancellation of the DOD-NOAA-NASA National Polar-orbiting Operational Environmental Satellite System (NPOESS).  NPOESS was intended to merge the separate military and civil weather satellite systems, but was terminated by the White House after years of cost overruns and schedule delays.  The two sectors were directed to resume separate systems.  NOAA moved out with a successor program, the Joint Polar Satellite System (JPSS), but DOD is still determining its path forward while relying on the legacy DMSP series.  Several DMSP satellites were purchased in a block buy and put in storage.  DMSP-20 is the last, but DOD has been ambivalent about whether it needs to be launched or not.