Why This Bird May Hold Up Defense Funding

The legislative year is coming to a close and with a new Congress elected, the 114th is now officially a “lame duck”. There is, however, still at least one fight left worthy of attention before the end of the year and there must be a decision in the two weeks before Congress adjourns.

This item is the National Defense Authorization Act of 2017 (NDAA). The NDAA is one of two yearly bills that allocate money and direct how it will be spent for the coming year for Department of Defense. Disagreements over the size of the budget have delayed the bill for several months, but have finally been resolved leaving the the conference committee free to move on two contentious amendments dealing with the status of the sage grouse as an endangered species and protection of private contractors’ religious beliefs.

The Sage Grouse

Greater Sage Grouse (Alan and Elaine Wilson)

Sage Grouse, and their sagebrush habitat span 11 Western sates, but have seen a steady decline in population and area from wildfires and invasive cheat grass. Led by the Bureau of Land Management (BLM) among others, a plan for addressing these environmental concerns has already been approved. In April, Utah’s Representative Rob Bishop (R) added an amendment to the NDAA which proposed gutting the BLM’s conservation plan and prohibiting the Sage Grouse from being declared an endangered species for the next 10 years. This amendment, which he unsuccessfully attempted to attach to last years NDAA, comes on the heels of Bishop’s other failed federal legislative attempts at the same target this year. To justify attaching the amendment to a military spending bill Bishop stated:

There is ample evidence that federal management of sage grouse populations is already hurting our military’s ability to adequately train on and use critical areas in the west. This would only get worse with a federal endangered species designation and it would hamper the way our fighting men and women prepare to defend our country

Military readiness and national security, although often invoked, are considerations to be taken seriously. When asked for the Department of Defense’s response to the amendment and Congressman Bishop’s national security concerns over the sage grouse, the Principal Deputy Assistant Secretary of Defense (Readiness) Daniel Feehan replied “At this time, we believe existing statuary authorities sufficiently protect the interests of the Department of Defense and we do not anticipate the need for additional legislation from Congress. However, we will continue to closely monitor the status of the greater sage grouse.” It appears Congressman Bishop’s appeal to national security and military readiness failed to resonate with the Defense Department.

Religious Freedom

The second amendment to the NDAA is not a new idea. Proposed by Rep. Russel of Oklahoma (R), it would require any branch or agency of the Federal Government to provide protections and exemptions for any religious corporations, associations, institutions, or societies that are recipients or offerors for a Federal Government contract.

Responding to the amendment, a group of 42 Senators raised concerns that

If enacted, [the Russell Amendment] would vastly expand religious exemptions under the Civil Rights Act and Americans with Disabilities Act to allow religiously-affiliated organizations receiving federal funds to engage in discriminatory hiring practices — using taxpayer dollars to harm hardworking Americans who deserve to be protected from workplace discrimination based on sexual orientation, gender identity, religious identity, or reproductive and other healthcare decisions. Our government should have no part in funding discrimination. [The Russell Amendment] is at odds with the values and beliefs that continue to advance our great nation.

This amendment is but the latest in a string of government actions going back to the 1993 Religious Freedom Restoration Act, which have expanded the protections of religious expression under the law. These laws have been sharply criticized by LGBTQ and Women’s rights groups, who claim the promotion of religious freedom has undercut the government protections of sexual orientation and gender identity. In addition this amendment would allow for further incremental encroachment upon reproductive rights and other health choices similar to Burwell v. Hobby Lobby which exempted private, closely held employers from paying for “morning after” pills and IUDs for religious reasons. At stake in the Russel amendment is allowing publicly funded employers to undertake potentially discriminatory practices based on religious beliefs, a very different case from private, closely held companies.

The issue of the amendments remains in the balance as Congress breaks for Thanksgiving, but needs to be addressed upon their return. If, like your Congressperson, you are home for the holidays, you may consider engaging them locally and voicing your concerns at their offices and events. Currently the bill resides in conference committee limbo, a spectacularly opaque form of resolution that mostly occurs out of the public eye. Even if the amendments make it out of committee, the NDAA still has to pass the Senate through a potential filibuster and make it across President Obama’s desk without a veto.

Further entangling the issue are tactical and partisan concerns. The sooner Republicans dismiss the Congress for the year, the more of President Obama’s executive orders they can repeal, so time is tight. Democrats could drag out proceedings with this time crunch in mind or use a filibuster, knowing that the longer they keep Congress in session the fewer of President Obama’s executive orders are able to be repealed by Congress. Additionally the Russel amendment would overturn President Obama’s executive order concerning LGBTQ contractors from 2014. It remains unknown if President Obama would veto the bill as one of his final acts as president.