- Law Center
By CAPT Marshall Hanson, USN (Ret.)
Normally a bi-partisan bill, the National Defense Authorization Act (NDAA) was derailed by partisan activity, threatening its passage in 2013. Efforts to pass a Senate version by Thanksgiving failed, when that legislation became collateral damage when battle erupted in the Senate in November over abandoning its filibuster rules.
Frustrated by held-up judicial appointments, Senate Majority Leader Harry Reid, D-Nev., dropped the tactical political bomb using the “nuclear option”. Under Senate rule XXII, a cloture vote could only end debate with a “yea” vote by 60 Senators. At the time, the Washington Post noted that there are "189 Obama judicial nominations awaiting confirmation" and "53 Obama judicial nominations moving through the Senate." Pushing through a simple majority vote, Reid changed the Senate rules eliminating filibuster on judicial and federal nominations. Fifty-one Senators can now vote to cut off debate.
Despite a Republican Senate considering similar changes to the rules in 2005, Republicans were provoked by the move, as it gives the majority party the power to elect nominees without minority support. This just worsened the partisanship facing the Capitol in 2013. It didn’t help that the morning debate and votes on the “nuclear option” were just before an afternoon spent on the NDAA.
At a time when Sen. Reid wanted to expedite passage of the NDAA, the Republicans pushed back. The Hill reported that Sen. Tom Coburn, R-Okla., “rejected Senate Majority Leader Harry Reid's request to schedule [NDAA] votes on the issue that senators had been debating all day.”
“There is not a unanimous consent, I will agree with until the Senate process is opened up,” Sen. Coburn said in the article.
Using the Thanksgiving recess as a backstop, Sen. Reid had allowed three legislative days for debate. He also tried to limit the number of amendments to be considered. Historically, the Senate has taken up to three weeks to debate and vote on amendments to a NDAA. Over 500 amendments were submitted for inclusion in this omnibus bill as it is the only defense legislation considered in the year. At one point, Sen. Reid offered 13 amendments in a manager’s package to hasten completion.
Several provisions were controversial. The most visible was how the military should review sexual assault cases. Personnel Subcommittee Chairman Sen. Kirsten Gillibrand, D-N.Y., had garnered support from 46 Senators to develop a review process that is outside the chain of command. Senate Armed Services Committee Chairman Sen. Carl Levin, D-Mich., wants to change the review process but keep it within the chain of command. Last September, ROA sent a letter of support to Sen. Levin. Sen. Coburn blocked two amendments dealing with sexual assault.
Other issues that were debated were detainees at Guantanamo Bay, sanctions on Iran, and the actions of the National Security Agency.
Only two amendments were voted upon during the three legislative days, and both failed. Sen. Reid scheduled a cloture vote to allow a vote on the NDAA passage, but Senators voted 51 to 44 to keep the debate open.
Despite threats from Sen. Reid to hold the Senate over the weekend to continue work on the NDAA, to defuse tensions, members of both parties agreed that the Senate NDAA would not be voted upon when the Senate adjourned for its two-week Thanksgiving/Hanukkah recess.
Members in both parties used the additional time to work on new sanctions against Iran, if its regime fails to uphold its part of the nuclear agreement by Secretary of State John Kerry in Geneva.
With 51 consecutive years of passage, having a final NDAA bill passed before the end of the year is Sen. Reid’s ultimate lever.