Major FY10 Defense Bills Continue to March Through Congress

October 8, 2009

Government Relations Update - Defense

On Tuesday the Senate wrapped up nearly a week of deliberation over the Fiscal Year (FY) 2010 Defense Appropriations bill (H.R. 3326), passing by a vote of 93-7 a $636.3 billion measure that will provide $128 billion for the wars in Iraq and Afghanistan and represent a $4.4 billion increase from FY09 levels. The bill now moves towards conference negotiations, where it must be reconciled with a House version that was approved on July 30.

During floor debate on Tuesday, the Senate staved off several attempts by earmark opponents John McCain (R-AZ) and Tom Coburn (R-OK) to eliminate congressional spending they deemed extraneous, including an amendment offered by Coburn that would eliminate all congressional earmarks within the bill’s 10 Operations and Maintenance (O+M) accounts.

The Senate also voted down, 30-68, another effort by McCain to remove $2.5 billion in unrequested funding for the procurement of 10 C-17 Globemaster IIIs. It remains to be seen whether or not the Obama administration—who in a September 25 statement of administration policy objected to the $2.5 billion on the grounds that DoD analysis have "shown that the 205 C-17s in the force and on order, together with the existing fleet of C-5 aircraft, are sufficient to meet the Department’s future airlift needs"—will consider a veto threat. The House version currently includes $674 million for the procurement of three C-17s.

Several amendments were also offered to modify DoD contracting policy, including one that would have required full and open competition for all congressional earmarks directed towards for-profit entities. Opposing the amendment, Chairman Daniel Inouye (D-HI) countered that it would harm small, minority-owned, women-owned, and disabled-veteran-owned businesses by eliminating contract set-asides. The amendment failed; and the Senate ultimately went on to adopt by a vote of 77-21 an amendment offered by Chairman Inouye that prohibits earmarks from going to for-profit entities. The amendment included, however, several exceptions for businesses eligible for contract set-asides. Below is a list of additional amendments that were included in the final bill:

  • Senator Al Franken (D-MN) offered an amendment that prohibits funding for Federal contractors who require employees or independent contractor to sign mandatory arbitration clauses for certain claims originating under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment. Agreed to by a vote of 68-30.
  • Senator Christopher Bond (R-MO) offered an amendment that prohibits the Air Force from retiring tactical aircraft as announced in the May 18, 2009 Combat Air Forces structuring plan until the Secretary submits a detailed report to Congress. As submitted, the Air Force’s plan intends to save $355 million in FY10 and $3.5 billion over five years by retiring 112 F-15s, 134 F-16s and three A-10 attack aircraft. Agreed to by a vote of 91-7.
  • Senator Bernie Sanders (I-VT) offered an amendment that requires the DoD to conduct a study on defense contracting fraud and submit Congress with a report that assesses the total value of DoD contracts with contractors that have "been indicted for, settled charges of, been fined by any Federal department or agency for, or been convicted of fraud in connection with any contract or other transaction entered into with the Federal Government" and recommendations from DoD officials regarding the process for penalizing such contractors. Agreed to by voice-vote.
  • Senator Joseph Lieberman (I-CT) offered an amendment that provides an increase of up to $151 million for the research and development of a long-range missile defense system in Europe. President Obama’s reversal of the George W. Bush administration’s plan for missile defense sites in Poland and the Czech Republic prompted the amendment, which funds R+D for a similar system. Agreed to by voice-vote.

Most notably, the final Senate bill handed President Obama several legislative victories with the axing of the F-22 and the VH-71 presidential helicopter, two major acquisition programs that were targeted for elimination by the Obama administration as part of broader DoD reforms.

Newly Unveiled DoD Authorization Conference Report Challenges the President

Despite the President’s early success in shaping the DoD budget thus far, his attempts at eliminating one particular program—the F-35 Joint Strike Fighter (JSF) alternate engine—have proven to be far less successful.

The FY10 National Defense Authorization Act (H.R. 2647) conference report that was released Wednesday includes $560 million for the F-35 alternate engine. During a press conference yesterday, Senate Armed Services Chairman Carl Levin (D-MI) expressed optimism that the President would ultimately accept the final bill language, noting to reporters that the Obama administration’s previous veto threat was directed at any efforts that would "seriously disrupt" the overall F-35 program; and that the conference agreement will avoid program disruption by funding the alternate engine through unrelated programs.

In light of the defense authorizers’ latest challenge to the President, Chairman Inouye said he expects the F-35 alternate engine program to be a leading point of contention during conference negotiations amongst his fellow appropriators.

The H.R. 2647 conference report was approved by the House today by a vote of 281-146—with a Senate vote potentially occurring next week. However, widespread Republican opposition to the Senate’s inclusion of a stand-alone non-defense related hate crimes bill could affect the timing and possibility of final passage.

SASC Subcommittee Realignment

With the recent committee appointments of Senator George LeMieux (R-FL) and Senator Paul Kirk (D-MA) to replace retired Senator Mel Martinez (R-FL) and the late Senator Edward Kennedy (D-MA), respectively, SASC is currently in the process of rearranging subcommittee membership.

The most significant shift will occur on the seapower subcommittee, in which Kennedy and Martinez served as Chairman and Ranking Member. Based on seniority, Senators Lieberman and Jeff Sessions (R-AL) are in line to claim the leadership role. Lieberman currently serves as the Chairman of the airland subcommittee.

Quote of the Week

"I think a lot of senators and congressman need to ask themselves how much money they are willing to put on the table, for how long and for what strategy."

– Senate Chairman of the Foreign Relations Committee, John Kerry (D-MA), noting the deep divisions within the Democratic Party as President Obama prepares to make an announcement on the future U.S. strategy in Afghanistan, which may include a significantly larger U.S. troop presence.

Notice: The purpose of this newsletter is to review the latest developments which are of interest to clients of Blank Rome. The information contained herein is abridged from legislation, court decisions, administrative rulings, and other sources and should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.