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As the fiscal year for the United States government expires at the end of September each year, much of the focus of Congress shifts on advancing budget bills in the summer. Typically, the first budget bill to pass is the National Defense Authorization Act (NDAA) that sets the national policy and outlines the spending guideline for the Defense of Defense. The armed services committees in both the Senate and House pride themselves in the record that the NDAA has been enacted in time for 59 consecutive years.

This year’s bill, the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (NDAA 2021; H.R. 6395) named after the retiring top Republican in the House Committee on Armed Services, passed before Congress went into the August recess. In the House, NDAA 2021 passed with a 295 votes on July 21st and in the Senate with 86 votes—in a rare show of bipartisanship in today’s political climate and with a veto-proof majority in both chambers. 

However, due to the differences between the Senate and House versions of the bill, the NDAA 2021 was put on hold until November 18th when both the Democrats and Republicans in both chambers nominated members for the Conference Committee to resolve the difference. The Conference filed a report on December 3rd, and the final version was voted on the House Floor on December 8th (335 Yeas, 78 Nay, 1 Present) and then on the Senate Floor on December 11th (84 Yeas, 13 Nays). As of December 15th, 2020, the NDAA has been passed for 60 years in a row and is now awaiting the President’s signature. The President, however, has threatened to veto the bill over the provision that mandates the removal of any relations to the Confederacy from military bases and other assets.

In the meantime, Congress has failed to pass the budget package to fund the federal government through the next fiscal year—primarily due to the impasse on the COVID-19 relief package included and related to the budget bills. On September 22nd, the House passed a continuing resolution (H.R. 8337) to fund the federal government through December 11th. The Senate passed the legislation on September 30th, and the President signed it into law on the same day. Due to the extended negotiations, another piece of continuing resolution was adopted to extend the temporary funding for another week (H.R. 8900) which passed the House on December 9th and the Senate on December 11th. Such temporary funding measures are not uncommon: since FY 1998, a total of 121 continuing resolutions have been enacted due to the timely passage of a federal budget bill.

Overview

Although there is much agreement between the two parties across the chambers, there are slight differences in the Senate and House versions. As in the years past, there will be a Conference Committee to resolve any discrepancies between the two versions in the near future. For example, the Senate NDAA allows the Pentagon 3 years to scrub all names of the Confederacy in military bases, whereas the House bill offers only 1 year to complete the process.

Another major point of contention lies in the use of military budget to fund the construction of border walls along the southern border. Currently, the Senate NDAA includes in the Section 2904 of the bill report a provision that authorizes the reimbursement of the $3.6 billion in military construction funding taken for the border. The House bill, on the other hand, does not allow for this money to be appropriated. 

The Department of Defense Appropriations Act 2021 (H.R. 7617) explicitly blocks the use of defense funding for southern border wall and limits the total amount of money the Pentagon can shift within its budget to $1.9 billion. 

As such, the White House has threatened to veto this year’s NDAA over the provisions that remove Confederate names in military bases and block the border wall constructions.

Provisions related to U.S. Policy towards the Korean Peninsula

Section 1252 of the House bill draws the baseline of the troop deployment to South Korea at a minimum of 28,500. Just like the similar provision in the last year’s NDAA, the bill prohibits the use of any funds in reducing “the total number of the Armed Forces serving on active duty who are deployed to South Korea below 28,500 until 180 days after the date on which the Secretary of Defense certifies” to Congress certain criteria and justifications for the decision. The provision is also included in the Senate bill, and as such, is more than likely to remain in the final bill.

Section 1253 of the House bill directs the Secretary of Defense to develop a plan to implement the recommendations made by the U.S. Government Accountability Office’s report entitled “Preparedness of U.S. Forces to Counter North Korean Chemical and Biological Weapons.”

Section 1245 of the House bill expresses the sense of Congress on burden sharing with allies, in which the House and Senate Armed Services Committees state “the United States must continue to strengthen its alliances and security partnerships with like-minded democracies around the world to deter aggression from authoritarian competitors and promote peace and respect for democratic values and human rights around the world.” 

It also adds the following: “South Korea hosts a baseline of 28,500 United States forces including the Eighth Army and Seventh Air Force. South Korea maintains Aegis Ballistic Missile Defense and Patriot Batteries that contribute to regional Ballistic Missile Defense, is a participant in the Enforcement Coordination Center, and is a significant contributor to United Nations peacekeeping operations. South Korea is an active consumer of United States Foreign Military Sales (FMS) with approximately $30,500,000,000 in active FMS cases and makes significant financial contributions to support forward deployed United States forces in South Korea, including contributions of $924,000,000 under the Special Measures Agreement in 2019 and over 90 percent of the cost of developing Camp Humphreys.”

A House amendment introduced by Rep. Meng (D, NY-6) and Rep. Lieu (D, CA-33) also added into this section a provision to engage South Korea and Japan in fair and equitable negotiations regarding their respective special measures agreements. However, in the Conference Report, the provision was significantly reduced to focus on U.S. troops presence in Germany and not other allied nations.

A separate bipartisan amendment introduced by Rep. Luria (D, VA-2) and Rep. Bacon (R, NE-2) additionally inserted into this section a language in which “the U.S. affirms our commitments to our Pacific allies of Japan and the Republic of Korea.”

Section 2511 of the House bill authorizes the acceptance of in-kind contributions from the Republic of Korea for 10 military construction projects across 6 USFK bases and installations. Section 2105 also authorizes the funding of a construction project in Camp Walker (Daegu) previously scheduled for fiscal year 2017.

Other Points of Note

Since there is an unparalleled level of bipartisanship and high likelihood for enactment in the NDAA, many members of Congress introduce amendments that speak to the social issues of the time.

This year, progressive lawmakers in the Senate and the House sought to slash the defense budget by 10% with an amendment introduced by Rep. Pocan (D, WI-2), Co-Chair of the Congressional Progressive Caucus. On the House Floor, the amendment was voted down by 324 to 93, with no single Republican supporting the measure and 139 Democrats also in opposition. 

In the wake of nationwide protests against police brutality, in the Senate, there was a bipartisan effort to limit Pentagon transfers of surplus military gear to civilian law enforcement, as well. However, the amendment failed to reach the 60-vote threshold when the final vote came down to 51 to 49. 

However, the Senate adopted a similar proposal from Armed Services Committee Chair Jim Inhofe (R-Okla.) to impose softer restrictions and require de-escalation training for law enforcement agencies that receive military equipment.

In addition, the NDAA FY 2021 in multiple sections prohibits the federal agencies from entering into, extending, or renewing a contract with an entity that uses telecommunications equipment or services by Huawei and designated Chinese companies in their supply chains. It also requires the Pentagon to submit a report on security risks due to Huawei 5G architecture in host countries. As the tensions rise between the United States and China, the skepticism on such vendors has been growing on Capitol Hill from both Democrats and Republicans.

Path Forward

As of August 4th, 2020, there has not yet been announced any dates or members for the Conference Committee on NDAA FY 2021. Once the Conference Committee convenes and submits a Conference Report to both chambers, each chamber will vote on it. Upon passage in both chambers, the bill would advance to the White House for the President’s signature which enacts the bill into a law.

KAGC Legislation Summary on NDAA FY 2020