This week in Congress: Obamacare, NDAA, and Merle Haggard

The U.S. House and Senate are back from Independence Day "district work period" to take more of our Independence.

The big news is, of course, continued attempts by the Senate to pass an ObamaCare "repeal" bill. The latest proposal floated by conservatives would allow insurance companies to sell plans that do not comply with ObamaCare mandates -- so single, childless men would no longer have to pay for maternity care -- as long as insurers offer at least one ObamaCare plan.

The problem with this plan is ObamaCare "plans" are likely to attract the sickest (and thus most expensive) patients. Thus, these plans give insurance companies an incentive to limit coverage for those most in need of it -- unless Congress increases taxpayer subsidies to the companies.

So, this plan is little more than a glorified version of the House's high-risk pool scheme. I  examined the flaws in high risk pools here.

The major legislation on the floor this week is the National Defense Authorization Act. This bill authorizes $621 billion in "defense" spending, along with an additional $75 billion in "Overseas Contingency Funding" (the Pentagon's off-budget slush fund).

When the NDAA was being marked up before the Defense Committee, Campaign for Liberty signed a number of coalition letters, including one opposing efforts to decrease transparency but limiting the information about the military that could be obtained using the Freedom of Information Act:


Dear Chairmen and Ranking Members:

On behalf of the undersigned groups, we urge you to oppose the inclusion of the Department of Defense’s (DoD) proposal to alter the Freedom of Information Act (FOIA) in FY 2018’s National Defense Authorization Act (NDAA). The Pentagon’s proposed language would undermine the FOIA, creating an unnecessary and overbroad secrecy provision at odds with FOIA’s goal of transparency and accountability to the public. The DoD’s proposal to exempt from disclosure “information on military tactics, techniques, and procedures, and of military rules of engagements,” would create a carve-out to the FOIA for much of the information and documents created by the Pentagon, the largest executive branch agency with the largest discretionary budget.

While we acknowledge that this exemption language is narrower than the two previous proposals by DoD, the provision remains unnecessary to protect the effectiveness of military operations. These fundamental changes to FOIA have been proposed without the input of the committees of jurisdiction over FOIA and FOIA-related issues. Because of their potential long-lasting effects on the public’s access to information, we urge you to reject this proposal.

The Department of Defense, and all federal agencies, already have broad and proper authority to withhold classified information under FOIA exemption one, as well as unclassified information under a variety of other statutes. This is the third time the DoD has requested special exemptions from FOIA—a request Congress has already rejected twice. According to the Department, the expanded exemption is needed to address concerns about giving potential adversaries advance knowledge of sensitive information. However, when pressed by Congressional staffers, DoD representatives admitted that the Department has never had to release information pursuant to a FOIA request that they would have been able to withhold under its proposed exemption.

Congress should not expand DoD’s authority to withhold information from public examination without input and approval from the committees of jurisdiction over FOIA. FOIA-related legislation needs the careful consideration of those committees, including public hearings; such care is necessary to ensure that any change to the law promotes transparency and public accountability while allowing the government to withhold information which truly requires protection. A massive authorization bill, which has in previous years been marked up in secret in the Senate, is not the proper vehicle to amend FOIA as it applies to the largest executive branch agency.

This expansion is not only procedurally problematic, but also unnecessary by DoD’s own practices. As stated above, FOIA exemption one, which shields “properly classified” national defense information from disclosure, already addresses DoD’s concerns, and more than adequately protects the information DoD is saying it is trying to protect. Though open government advocates object, DoD also regularly argues that it may rely on exemption one to withhold unclassified information, if the unclassified information could, when compiled, reveal classified associations or relationships. In other words, the DoD already argues that it may withhold “sensitive, but unclassified, military tactics, techniques, or procedures, and military rules of engagement, from release to the public,” which happens to be the Department’s proffered justification for its proposed exemption expansion.


To ratify this practice would simply give the department license to even further stretch its ability to shield documents from the public under FOIA. DoD could attempt to use this unnecessary exemption to conceal information about the military’s handling of sexual assault complaints; its interrogation and treatment of prisoners; its oversight of contractors; and other matters of compelling public interest. Excessive, reflexive secrecy about completed military operations could also harm the troops themselves, as demonstrated by news reports that show soldiers’ health care was compromised by the military’s failure to acknowledge their exposure to chemical weapons in Iraq.

We also signed a letter opposing increased spending on the F-35 program:

Dear Members of the Senate and House Armed Service Committees:

The undersigned represent a broad, bipartisan consensus of groups concerned about responsible and effective defense spending opposed to the authorization for an economic order quantity for the F-35 Joint Strike Fighter (JSF) Program. While the JSF Program office has sought authorization for this for several years, the program has still not met the statutory requirements for what will be in effect a significant production increase that would waste millions in taxpayer dollars.

The F-35 program has still not finished the design phase, let alone the critical operational testing period necessary to determine whether the F-35 can actually fulfill its intended combat role. Until the program successfully completes combat testing, it is impossible to know if any of the parts to be purchased will work in the final design. The program has already been forced to redesign major components, including the landing gear and wings for the F-35C. The Government Accountability Office also recently reported that costs to fix design flaws discovered so far have already climbed to $1.77 billion. As the program gets further into the testing, more design problems will be uncovered, pushing those costs even higher.

This is what Frank Kendall, the Pentagon’s former top weapons buyer, called “acquisition malpractice.” The well-known problems with the F-35 program has created deep public doubts, even garnering questions about affordability from the President.

The figure quoted by the GAO is based on known design flaws exposed during the easiest testing exercises on the 217 F-35s purchased already. If authorized, the economic order quantity would purchase parts for approximately 440 more. At the same discovery rate of future design flaws, the cost to retrofit the aircraft to be built under this authorization would be $3.6 billion. That is nearly double the purported $2 billion the JSF Program office claims would be saved with an economic order quantity.

The history of this program, and upcoming testing challenges, make it unlikely this purchase will save money. Previous studies, including one by the Government Accountability Office, found multiyear procurement authority actually increased costs 10 to 30 percent. There are even more cost risks for the F-35 in 2017 since there are far too many unknowns with the program now. It has yet to even begin the rigorous process of operational testing to prove the design is effective.

The scale of the challenges remaining with the F-35 is easily quantified in the latest annual report from the Director of Operational Test and Evaluation office. According to the report, the F-35 still has 276 “Critical to Correct” deficiencies that must be fixed before the development process ends because they could “lead to operational mission failures during IOT&E or combat.” Of the 276, 72 were listed as “priority 1,” which are service-critical flaws that would prevent the services from fielding the jets until they are fixed.

Congress typically authorizes most weapons buying programs on a year-by-year basis to ensure proper oversight of the program and to maintain incentives for the contractor to satisfactorily perform. Multi-year contracts put taxpayers on the hook for several years, which is why federal law includes a number of criteria for approval, including that the contract must promote national security, result in substantial savings, have little chance of being reduced, and have a stable design. Any approval of this kind of block buy must include independent certification the program meets those requirements. At this point approving a multi-year buy would go against the Pentagon’s own financial management regulations and unnecessarily increase risk to taxpayers.

At an absolute minimum, the F-35 test program already in place must be executed to understand exactly what this aircraft can and cannot do competently. That means suspending, not increasing, further F-35 production—including production of the parts that will go into it—until those tests are complete and honestly reported to the Secretary of Defense, the President, and Congress.

The House will also consider legislation giving California more flexibility over its water projects.

The House will also consider a number of bills under suspension of the rules, including:

1. HR 2430 -- Reauthorizes FDA User Fee program.

2. HR 1492 -- This bill recognizes how the war on drugs can interfere with effective medical care and sets up a special system for emergency medical personnel to use controlled substances to treat patients.

3. HR 1988 -- Names a Post Office after country music legend Merle Haggard. (This is without a doubt the best bill Congress has considered this year.)

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