With two huge spending bills clearing the House of Representatives in the last two weeks and one of them being signed into law, one might think Congress would be out of new spending ideas or close to it.
But even after the $1 trillion infrastructure bill and the $2 trillion Build Back Better legislation before Congress now, plans are being made to have the National Defense Authorization Act (NDAA) be about much more than defense.
It’s an easy target and has been for years.
It’s “must-pass” legislation. Even though it generally is hashed out months beforehand, it’s usually the last piece of legislation signed into law each year. That enables members of Congress to add provisions at the end of the year that otherwise might well not survive careful scrutiny.
All members have to do is convince an ally on the armed services committees in the House or Senate to include a provision in the legislation, and they can bypass the committee process and quite likely see their provision become law even if it’s not that popular.
Each year, both the Senate and House Armed Services Committee pass a defense authorization bill, which does not appropriate money but expresses the will of Congress both on spending and on policy and organizational matters.
The legislation authorizes spending for the Department of Defense, nuclear weapons programs of the Department of Energy, the Department of Defense elements of the Intelligence Community, and defense-related activities at other federal agencies.
The NDAA bills are passed separately in the House and Senate by the middle of the summer, then sent to conference committees to hash out differences. But no further action is taken until the end of the year, when leaders can load in last-minute priorities and special projects.
This year, the House passed its version of the bill on September 23, but the Senate has yet to act. That means it can still get changed after the differences between the House and eventual Senate version are resolved, and late proposals still can be attached to other must-pass legislation, such as a measure to increase the debt limit.
Despite the two enormous spending bills Congress probably will have approved before it takes up the National Defense Authorization Act, it is doubtful its provisions will be limited to things related even remotely to national defense.
There’s just not much of an appetite for straight one-issue bills anymore. Nearly all are larded up with unrelated priorities.
The legislation that was supposed to be about infrastructure is only about a quarter about infrastructure. It is much more about $12 billion to community colleges, $25 billion to subsidize child care, and a provision to provide broadband to people in prison in the name of digital equity.
According to the Tax Foundation, the president’s Build Back Better budget plan is similarly larded up, with provisions such as a new tax on cryptocurrency transactions, a “tree equity” program to plant more trees in underprivileged neighborhoods, and the power to look into the bank accounts of anyone doing transactions of $600 or more. (READ MORE: Build Back Badly)
As for the defense authorization legislation, it already carries earmarks, including one to provide UH-60 Blackhawks for the Army National Guard. And it already has unrelated provisions, such as one to allow cannabis companies to use financial institutions and one that basically would repeal consumer choice for contact lens wearers.
The provision is called the Contact Lens Prescription Verification Modernization Act, and it basically would repeal the Fairness to Contact Lens Consumers Act, which was passed in 2003.
Before the current law took effect, doctors issued and controlled prescriptions for contact lenses and glasses, which meant consumers had no choice but to buy lenses or glasses from their optometrist. Under current law, Americans can take their prescriptions to whichever provider they wanted, creating a booming industry in online sales of glasses and contact lenses. The current proposal essentially would reverse this progress, and likely never would pass as stand-alone legislation.
There’s nothing new about unrelated provisions in defense bills. The first federal hate crime laws passed as part of the defense authorization legislation of 2009. An entire honors thesis has been written at the University of Arizona on all the legislation that hitched a ride on the NDAA.
We’ll never get Congress to completely give up on tacking on special provisions to must-pass legislation at the end of the year either. But the provisions that do end up in such bills ought at least be about the topic the legislation addresses. What does ordering contact lenses have to do with defense?
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