Ervin Graves

EGSG Insights – What is the National Defense Authorization Act (NDAA)?

In December 2022, the National Defense Authorization Act (NDAA) marked its 62nd  consecutive year of passage, a testament to the bill’s reputation of being a reliable piece of legislation each year. Where annual appropriations, think of an “Omnibus Spending Bill,” dictates the budget of the nation’s defense, it is the NDAA that authorizes this funding and provides guidance and oversight over the numerous programs, policies, and projects that are implemented by these defense oriented appropriated funds. The NDAA’s authorizing authority covers the U.S. Department of Defense (DOD), the Department of Energy’s nuclear weapons programs, and any other defense-related activities.

The House Committee on Armed Services (HASC) and the Senate Committee on Armed Services (SASC) both have jurisdiction over the NDAA. Both bodies are commonly referred to as the “authorizing committees,”or colloquially, “authorizers.” These committees are further subdivided into subcommittees, each with independent jurisdiction over specific defense matters. The subcommittees include:

HASC Subcommittee SASC Subcommittee
Tactical Air and Land Forces

Military Personnel

Readiness

Seapower and Projection Forces

Strategic Forces

Intelligence and Special Operations

Cyber, Innovative Technologies and Information Systems

Airland

Cybersecurity

Emerging Threats and Capabilities

Personnel

Readiness and Management Support

Seapower

Strategic Forces

The nation’s first NDAA passed in 1961. Since then, the legislation’s size has grown from just one page in 1961 to over 4,000 pages in 2022. When reading today’s NDAA, the legislation is typically comprised of four divisions, including:

1.    Division A. Department of Defense Authorizations
2.    Division B. Military Construction Authorizations
3.    Division C. Department of Energy National Security Authorizations and Other Authorizations
4.    Division D. Funding Tables

Divisions A through C are further divided by title, subtitle, and section. These individual sections are where Congress outlines its guidance for the exact projects, policies, and activities that the DOD, and other relevant defense activities, should either be establishing, terminating, or continuing via appropriated funds. As an example, Division B, Title XXI is where Congress authorizes the construction projects that the U.S. Army should undertake in the following fiscal year. Examples of Congressional NDAA guidance could be to demolish a certain military barracks or build an aircraft hangar. Similarly, Division B, Title XXII covers construction projects for the U.S. Navy. As another example, Division A, Title I, covers military procurement for items ranging from ships to aircraft.

Unlike Divisions A through C, Division D explains exactly where total appropriated funds should be disbursed in conjunction with the guidance outlined in the prior Divisions. Across extensive funding tables, exact dollar amounts are connected to specific line items. These line items can include funding amounts for certain procurement needs such as “shoulder launched munitions” to “gaming technology in support of army training.” Other examples include budgets for construction projects and programs or for the research, development, testing, and evaluation of new defense technology. Division D funding tables also compare what was requested in the President’s Annual Defense Budget against what was authorized by HASC and SASC. This comparison can signal how the interests and priorities of Congress relate to the Executive branch.

In addition to their respective versions of the NDAA, both HASC and SASC typically publish a companion committee report which details the rationale behind the committee’s decision-making process, and includes additional views of members, committee actions taken, further guidance to government agencies and items of special interest (ISIs). ISIs are divided into two types – Directive and Nondirective. Where Directive ISIs direct an individual to take a specified action, Nondirective ISIs are statements regarding the committee’s views, concerns, opinions, or rationale. An example of a Directive ISI could be the committee asking a certain senior defense leader to testify on a topic no later than a certain date, where a Nondirective ISI could be sharing the committee’s support or concern about a certain defense program. Of note, Directive ISIs are not legally binding but agency officials commonly act accordingly as it is a direct request from Congress.

The process for passing the NDAA traditionally occurs throughout most of the year and over several major milestones, including:

·      The NDAA process begins with the publishing of the President’s annual budget request. This typically occurs in the beginning of February, however, for the FY23 NDAA process the budget request was not released until March 28, 2022.

·      Following submission of the President’s budget request, both HASC and SASC begin hearings. These hearings include testimony from senior defense-related leaders to discuss the President’s defense budget request. The subcommittees of HASC and SASC also hold their own individual hearings. For example, HASC’s Subcommittee on Seapower and Projection Forces might include testimony from U.S. Navy leadership.

·      Following hearings, HASC and SASC subcommittees begin the markup process. This process is guided in each subcommittee by the subcommittee’s Chairman’s Mark which is the primary draft proposal that legislates the budget and policy recommendations relevant to the body’s jurisdiction. For example, the SASC Airland Subcommittee’s Chairman’s Mark would include Army procurement recommendations. Upon completion of debate, the Chairman’s Mark, with proposed amendments, is voted on by the subcommittee to be sent to the full committee.

·      After the subcommittees submit their markups, the full committee markup period begins. During this process, the full committee debates and votes on the amendments of each subcommittee’s markups. The full committee also debates and votes on the full committee Chairman’s Mark which includes budget and policy recommendations on items not covered by the jurisdiction of the other subcommittees.

·      Once the NDAA makes it out of committee, the legislation then typically faces consideration on the floor. While both House and Senate floor consideration processes differ, both provide their Members the opportunity to consider, debate, and further submit floor amendments to their chamber’s respective version of the NDAA. In some cases, this can lead to the addition of hundreds of amendments. Both the House and Senate then vote on their versions of the NDAA. Typically, the House passes its version first where it is then sent to the Senate for its comparison and consideration.

·      As only one version of the NDAA can be sent to the President’s desk, both the House and Senate must reach agreement on their respective amendments. To reach consensus, typically both chambers hold a conference. During this process, Members of both legislative bodies (mostly from HASC and SASC)meet to resolve their chambers’ differences and produce one conference report detailing a proposed settlement between both chambers. The conference report then receives floor consideration in both chambers without the ability to make amendments. If the conference report passes both chambers, a unified NDAA is sent to the President’s desk for signing.

This analysis was authored by members of the Ervin Graves Strategy Group team. If we can assist your organization or answer any questions about the above insights, please contact dan.sauers@ervingraves.com.

EGSG is a full-service consulting and government relations firm that works with a broad range of businesses across every sector. Specializing in federal and state government affairs, strategic communication, coalition building and the congressional spending process, EGSG has a tradition of success that began in 1987.