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Stakes high if Congress can’t pass NDAA

Washington might have to refight this year’s ugly battle over troops’ death gratuities if Congress can’t agree on a budget on time, Hill defense advocates warn.

House aides, who asked not to be identified, told POLITICO they had “serious concern” that if Congress doesn’t pass the National Defense Authorization Act by the end of December, “the problem we saw during the shutdown with families who have lost troops in action not being able to get their death gratuity payments would reassert itself.”

The Pentagon said it doesn’t think so — but the payments could wind up in jeopardy further down the line.

“Death gratuities would not be affected by a lapse in a defense authorization bill, as long as we have an appropriation, [either a] continuing resolution or full year,” Pentagon spokesman Cmdr. Bill Urban said.

So in short, the death gratuity would not be in peril if Congress does not pass the defense bill by the end of the month, the Pentagon says, but it would if Congress lets lapse the temporary measure that now funds the government. House and Senate Budget committee members are negotiating now over what would follow the CR when it expires in January.

Members of Congress, troops’ advocates and families were outraged during the 16-day government shutdown in October when the Pentagon said it could not disburse the $100,000 typically paid to families within three days of a servicemember’s death. Defense Secretary Chuck Hagel had to make a deal with the Fisher House Foundation for it to make the payments before President Barack Obama signed a hastily passed bill that explicitly authorized DoD to continue the payments during the shutdown.

House aides’ warnings in recalling the death gratuity episode were an attempt to goose progress on the NDAA, which stalled when a gridlocked Senate left town last month after failing to advance the bill. The House passed its version of the bill over the summer, and defense advocates are pushing for Congress to finish up before Dec. 31.

Although the Pentagon said a failure to pass the defense bill wouldn’t jeopardize troops’ death gratuities, it pointed out the many other authorities — including many involving military pay — that would lapse if the defense bill does not pass.

They include certain special pays, incentives and bonus authorities, as well as authorities related to the winding down of the war in Afghanistan. The bottom line is that not having a bill in the new year would make life that much more difficult for the Pentagon.

“There will be certain essential authorizations that will need to be covered in some way. Primarily pay and benefits are the key ones that everybody talks about,” said Roger Zakheim, a former House Armed Services general counsel.“But I also think it means that the DoD doesn’t have guidance and authorization that they rely upon, and so it adds to what is already a great level of uncertainty for the DoD.”

Zakheim, who now works for lobby shop Covington and Burling, said that with certain authorizations — those for pay and benefits among them — set to expire, and Congress governing by continuing resolution, there could be real trouble ahead for the Pentagon.

“We’ll see what happens with the budget conference and whether that breaks the jam for a DoD appropriations bill, but we’re on a continuing resolution,” he said. “Adding in defense authorization anomalies to a continuing resolution is difficult. Something’s got to give here.”

House and Senate aides say they’re closer to reaching an accord, and remain optimistic that the bill — which represents about half of the discretionary budget — will pass. The two chambers may attempt to each pass similar legislation and send it back and forth across the Capitol, which insiders liken to a game of table tennis.

“Senate Armed Services Committee and House Armed Services staff are trying to work out differences in the two bills, presumably with the goal of ‘ping-ponging’ something before the end of the year,” said a Senate Democratic aide close to the process. “Technically, it’s not a conference report. It will just be a new bill that omits anything controversial and is intended to easily pass both chambers quickly.”

That option, said Jeff Green, a former House Armed Services subcommittee staff director, is better than no bill at all.

“It’s clearly the least preferred option, but it’s a must-do if the alternative is no legislation at all. No single issue that’s before the Congress this year is worth bringing down this 51 year mechanism for taking care of the troops,” he said.

Darren Samuelsohn contributed to this report.

Jeff Green