In September, NTU asked leaders of the House and Senate Armed Services committees to retain several good-government provisions from the House and Senate versions of the National Defense Authorization Act (NDAA) in their negotiations over merging the two bills. Lawmakers released the conference version of the NDAA last week, and the finer details of the 4,517-page conference report offer a clearer picture of where taxpayers won and lost in this year’s NDAA -- which is likely to pass both chambers of Congress by wide margins in the coming days.
First, an important note -- the bill, on the whole, is bad for taxpayers, and for several reasons: it authorizes nearly three-quarters of a trillion dollars to a Pentagon budget that is already bloated, it doubles down on troublesome legacy programs, and it includes $69 billion for an Overseas Contingency Operations (OCO) account that policymakers across the ideological spectrum have correctly called a slush fund.
While NTU has been troubled by most iterations of the annual defense policy bill in recent years, we have consistently worked with both Republicans and Democrats in Congress to include some oversight, transparency, and good-government measures in the massive bill -- in part to ensure some level of accountability for the Pentagon’s growing budget and massive bureaucracy.
This year, we asked Congress to retain 11 good-government provisions in NDAA negotiations (two from the Senate bill and nine from the House bill). We also asked them to completely remove a provision that showed up in each bill: the elimination of the Chief Management Officer (CMO) position at the Pentagon.
What follows is a review of where NTU and taxpayers won and lost in the conference negotiations.
The Taxpayers Right-To-Know Act: For years, NTU and other civil society organizations have been fighting for passage of the Taxpayers Right-To-Know Act (TRTK), legislation that would require the Office of Management and Budget (OMB) to complete its years-long work on the first-ever comprehensive federal program inventory. Knowing how many federal programs exist is critical for helping Congress and the federal agencies oversee program performance and identify reform opportunities. Versions of the legislation have passed the House several times, but it took Congressional champions like Reps. Jim Cooper (D-TN), Tim Walberg (R-MI), and James Comer (R-KY) -- and a coalition of eight good-government groups led by NTU -- to include TRTK in the House version of the NDAA. We are thrilled to see lawmakers retain this provision in the conference version, giving TRTK its best chance of becoming law in years.
Incentives for Pentagon programs and departments to pass an audit: This section from the Senate version of NDAA would require the Department of Defense (DoD) to develop and report to Congress on incentives that could help agencies and departments within DoD pass their financial audits. This section is particularly timely, given DoD failed its third straight audit just a few weeks ago. (DoD has never successfully passed an audit.)
DoD audit remediation plan: This provision from the House version of the NDAA would give Congress a better sense of how much DoD has spent on maintaining and updating its financial management systems over the past five years. We believe an audit remediation plan is critical to DoD’s success in passing future audits, which the department recently estimated will not happen until 2027, so we are encouraged that lawmakers kept this provision in the conference legislation. However, we disagree with conferees that it is encouraging that DoD “has successfully completed an independent annual financial audit three times,” because what is more important than completing the audits is that they have not passed any of them.
Public availability of DoD legislative proposals: When the Pentagon makes funding or other legislative requests of Congress, the public should know about it. This provision would ensure that the public has access to these requests on a centralized website. Though this is a win for taxpayers and government watchdogs, we are disappointed that conferees extended the length of time DoD has to comply with this provision from seven days to 21 days.
GAO report on how DoD responds to Congressional requirements: Congress can require lots of reports from the Pentagon each year, and though reporting requirements can add burdens to a busy DoD docket, the agency must nevertheless comply or explain to Congress why it cannot comply in due time. This provision would have the Government Accountability Office (GAO) explore the feasibility of a “congressional tracking database” that makes unclassified, Congressionally mandated reports from DoD available to the public in one centralized location. We are pleased to see this section make it into the NDAA conference.
No OCO accountability: NTU strongly supported a bipartisan provision -- sponsored by Reps. Ralph Norman (R-SC) and Kurt Schrader (D-OR) -- that would require the Secretary of Defense to report to Congress on how the Pentagon intends to shift Overseas Contingency Operations (OCO) funding from the OCO account to the base budget. This is critical to reining in the $70-billion OCO account, which has grown well beyond its intended purpose in recent years. Unfortunately, conferees excluded this provision from the final version of the NDAA. They wrote that they are:
“...concerned that the Department of Defense has not transmitted to Congress a detailed plan to budget for overseas contingency operations, including proposed rules to govern the inclusion of activities and programs in overseas contingency-related funding and planning considerations related to transitioning overseas contingency-related funding back into the base budget.”
The provision NTU supported would have provided for transition planning considerations, so it makes little sense that lawmakers excluded this section from the conference bill. However, we look forward to DoD’s briefing “to the congressional defense committees no later than February 1, 2021 to discuss the future governing principles of overseas contingency-related funding in the fiscal year 2022 budget.”
Elimination of the CMO position: For months, NTU has advocated against the elimination of the Chief Management Officer (CMO) position at the Pentagon, given the important role the CMO plays in improving business processes at DoD and rooting out wasteful spending. Both the House and Senate versions of the NDAA eliminated the CMO position, so we asked Congress to consider excluding both provisions from the final version of the NDAA. Unfortunately, conferees not only retained the elimination of the CMO position but they selected the more draconian House version of the provision that eliminates the position immediately (rather than over time). We continue to believe this is a significant mistake.
No reestablished Wartime Contracting Commission: NTU advocated for a bipartisan provision in the House version of the NDAA that would reestablish the Commission on Wartime Contracting, which during just three years of existence uncovered between $31 billion and $60 billion lost to waste, fraud, and abuse through wartime contracting in Iraq and Afghanistan. Conferees kept this provision out of the final NDAA but noted the “importance of rigorous oversight of contracting for military, security, and reconstruction operations abroad,” and “acknowledge[d] the Commission’s valuable work.” These affirmations do not lead to real accountability, though, and we continue to believe that lawmakers should reauthorize the Commission so that it can renew its essential work on behalf of taxpayers.
No follow-up for the 2015 Defense Business Board report: One provision in the House version of the NDAA would have required DoD to update Congress on its efforts to implement $125 billion in five-year cost savings originally identified by a 2015 Defense Business Board report. DoD infamously “killed” the plan and “imposed secrecy restrictions on the data making up the study, which ensured no one could replicate the findings,” the details of which were later leaked to The Washington Post. NTU continues to believe that these savings recommendations could represent low-hanging fruit for savings in a bloated Pentagon budget, and we urge lawmakers to press DoD for updates on the report. Unfortunately, conferees appear to dismiss the recommendations entirely, writing that the Department should exercise caution “against arbitrary cuts to force structure or the civilian workforce, as such actions could introduce serious long-term risks.”
No 100-word summaries for regulations: This provision in the Senate version of NDAA would require a short “plain language” summary for each proposed regulation, instantly making federal agencies and their complex rules more accessible to the general public. Unfortunately, the provision was removed from the conference version of the NDAA without explanation.
No improvements to the process for filling IG vacancies: NTU supported a provision in the House bill that would have ensured inspector general (IG) vacancies are filled by individuals qualified to serve as an IG and knowledgeable of the office’s responsibilities. Unfortunately, the provision was also removed from the conference version of the NDAA without explanation.