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Senate Clears NDAA with Veto-Proof Majority

Annual defense policy legislation was cleared by the Senate Wednesday and is headed to the White House by a veto-proof majority, though Democratic leaders have vowed to sustain the president’s objection.

In a 70-27 vote, the Senate adopted the conference report for the fiscal 2016 defense authorization bill (HR 1735). Twenty Democrats and Independent Angus King joined almost every Republican in supporting the measure. Sens. Rand Paul of Kentucky and Ted Cruz of Texas, both of whom are running for president, were the only Republicans to vote against the bill.

Wednesday’s Senate vote reached a veto-proof majority, with 67 votes needed to pass the measure over the president’s objections. The wide margin is almost a moot point, however, since the House did not achieve enough votes to overturn a veto when it passed the bill last week.

The White House has threatened to nix the measure over its inclusion of tens of billions of additional war funds to supplement the Pentagon’s everyday operating costs.

Before clearing the legislation, senators voted 71-26  to waive a budget point of order raised by Senate Minority Leader Harry Reid, D-Nev. The chamber required 60 votes to clear the budgetary hurdle.

On the Senate floor Wednesday, Republicans appeared to be gearing up for another round in the defense authorization fight, highlighting the bill’s “vital” provisions and outlining at length the myriad complex worldwide threats the United States faces, cautioning against a veto over budgetary issues.

“It would be yet another grave miscalculation from this administration, something our country can no longer afford,” said Senate Majority Leader Mitch McConnell, R-Ky.

Should Obama choose to veto the measure, it would be only the fifth time in the history of the consolidated annual defense authorization that a president has sent the bill back to Congress. Then-President George W. Bush issued the last veto of the defense bill on the fiscal 2008 measure.

The bill would authorize a topline of $612 billion in national defense spending, including a $496.4 billion Defense Department base budget.

It also contains $89.2 billion in Overseas Contingency Operations funds, $38.3 billion above the president’s request. The contingency fund is not capped by law, and the additional money would be used to supplement the defense base budget. Under a potential budget deal that raises spending caps, however, the bill would provide for the automatic shift of OCO funds to the base budget by whatever amount the defense spending cap is increased, effectively treating that amount of OCO money as if it were authorized for the base budget.

While he called budget caps imposed on discretionary spending “mindless,” Senate Armed Services Chairman John McCain, R-Ariz., defended the use of the war funds to increase defense spending, saying the authorization bill couldn’t fix the issue. Instead, McCain faulted Obama and Democrats for opposing the defense legislation to extract more money for non-defense spending.

“This veto threat is about one thing and one thing only, and that’s one word: politics,” McCain said.

“At a time of increasing threats to our nation, this is foolish, misguided, cynical and dangerous,” he added.

Despite the language to shift the war funds, Democrats were unfazed in their opposition to the budget maneuver. Reid called the legislation “another piece of political theater” and promised his caucus would sustain the president’s veto.

“Everyone knows the president’s going to veto this. Everyone knows this,” Reid said. “The House, if they’re called upon first to sustain the veto, they will do it. If we’re called upon first to sustain the veto, we will do it.”

On the floor Wednesday, Senate Armed Services ranking Democrat Jack Reed of Rhode Island lauded the conference process as “thoughtful and cooperative” and said he supports the vast majority of the sprawling conference report’s provisions, but would vote against the measure due to the additional OCO funds. Reed also cited increased restrictions on the transfer of Guantanamo detainees and lawmakers’ unwillingness to agree to Pentagon cost-savings proposals as low points in the legislation.

“This is not a debate about which appropriation account we put the money in,” Reed said. “It’s a fundamental debate about how we intend to fund the workings of our government today and in the future.”

“I don’t think by standing up and casting a vote in this light we’re disrespecting or not recognizing the men and women who wear the uniform of the United States,” he said.

Seemingly in expectation of a veto, Reed called for a revision of the budget caps that could allow for a revised defense bill that the president would sign. Reed noted that many of the pay and benefits provisions that make the NDAA a “must-pass” bill, don’t expire until the end of the calendar year.

“We still have time,” Reed said. “And I would hope we’d use that time not just to make some changes — technical, here and there — but to deal with the central issue, which I hope we all agree is driving everything, and that’s fixing the Budget Control Act in a way that we can provide across-the-board support for our federal agencies.”

Bill Provisions

The legislation includes a significant shift in the military’s retirement system, which blends the current defined benefit pension system with a matching Thrift Savings benefit similar to a 401(k) retirement plan. Conferees paid for the up front costs of overhauling military retirement through a one-time increase in certain Tricare pharmacy co-pays.

The final bill is silent on a military pay raise, which committee aides said defaults to a 1.3 percent raise as outlined by the administration. The pay raise equals the percentage proposed by the Senate, which was lower than the House’s proposal. The conference report also gradually reduced the military’s housing subsidy by 1 percent per year over four years.

The conference report also marks a return to stricter standards for transferring Guantánamo detainees internationally. The legislation would repeal less stringent requirements implemented by the fiscal 2014 defense authorization law (PL 113-66) and return to a stricter set of standards. The agreement would specifically prohibit the transfer of detainees to Yemen, Somalia, Syria or Libya. As in previous years, the conference report would prohibit transferring detainees to the United States or constructing or modifying facilities in the U.S. for housing Guantanamo detainees.

Jettisoning a Senate-proposed pathway to closing Guantánamo, the final defense bill would require the Pentagon to submit a plan within 90 days of enactment on the current and future detention of individuals held under the 2001 authorization for use of military force (PL 107-40), including a “specific facility or facilities that are intended to be used” for holding detainees.

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