“Lame Duck” Congress Update

CAPT Marshall Hanson
ROA Legislative Director

Congress returned to Washington this week to start its "lame duck" session. Also in town are the 93 newly-elected officials who begin their orientation for the next session starting Jan. 5, 2011. A number of members of Congress who weren't reelected said their goodbyes in emotional gatherings.

An unanswered question is what will be passed in the next couple weeks. A top priority is a continuing resolution to finance the federal government. This past year, Congress did not pass any appropriation funds. While an omnibus budget bill has been suggested, it is believed that there is enough disagreement on its content that its passage will be delayed until next year. Some say that the CR may cover the remainder of FY-2011.

Because of how current U.S. Code is written a proposed 1.4 percent pay raise for the military will automatically take effect on Jan. 1, 2011.

The House and the Senate will also consider extending the Bush tax cuts that are expected to expire. This is not looking like a permanent extension but rather an extension for a year or two, allowing the next Congress to debate a more permanent solution. Also, the "Doc Fix" will be addressed. Currently, Medicare and TRICARE medical provider fees are scheduled to be reduced by nearly 25 percent in December. Congress will likely prevent this from happening, but will kick the deadline into next year rather than fixing the problem.

It is cannot be said whether the National Defense Authorization Act (NDAA) will be passed. While the Senate may schedule its version of the bill, Senate leader Harry Reid wants to limit debate to just four amendments. The minority party may try to filibuster the bill, as they have asked for open debate. Such an action would push the defense legislation from consideration this year. Word from the House is not any more encouraging. The likely incoming Republican chairman of the House Armed Services Committee, Congressman Buck McKeon, briefed ROA and others at a Monday event that it’s not likely Congress will pass the massive defense policy bill by year’s end. The Defense authorization is mired down in debate over several controversial issues that include repeal of "Don't ask, Don't tell" and permitting abortions in military hospitals. Rep. McKeon also shared that he supports an alternative engine for the F-35 fighter, which would potentially draw a White House veto.

With many issues threatened by gridlock in the lame duck session, it appears that Congress's return may not prove as productive as once thought. Rather than working late into December, the session may be truncated, with a lot of needed business being handed off to the new Congress. At the end of this week, Congress will return home for Thanksgiving. How long they plan to work in December still must be addressed.

New START Stalls

CAPT Marshall Hanson
ROA Legislative Director

In Washington the media is reporting that the White House and Senate leadership were surprised by the announcement by Sen. Jon Kyl that he doesn’t support a ratification vote on the New START Treaty with Russia during the “lame duck” session.

“When Majority Leader Harry Reid asked me if I thought the treaty could be considered in the lame duck session, I replied I did not think so given the combination of other work Congress must do and the complex and unresolved issues related to START and modernization,” said Sen. Kyl in a statement released earlier this week.

The New START Treaty is a replacement for both the original START Treaty that expired in December of 2009 and the Moscow Treaty which was negotiated by the Bush Administration for control over nuclear weapons with Russia.

While some were taken aback by this statement, ROA was not. Last summer, ROA President RADM Paul Kayye was briefed in the West Wing Situation Room about the treaty and needed Senate votes. ROA presented both sides of the START agreement in its November/December The Officer magazine. While ROA has remained neutral, we have been invited to listen in on discussions over this issue.

Senator Kyl is pivotal to any debate on the issue, and the minority party has been looking to him for leadership on ratification. His prominence explains why the Senate Majority Leader and the White House are engaging him in ongoing negotiations.

While many in Washington are writing-off the treaty as having been killed, critics of the Treaty are looking at ways on how to strengthen the agreements on verification and nuclear weapon reduction equity. It takes a 2/3rds majority vote in the Senate to ratify treaties.

Commission Finds $100 Billion in Savings from Proposed Defense Spending Cuts

Andrew Gonyea
Communications Assistant

The National Commission on Fiscal Responsibility and Reform calls for a “cut in ALL excess spending – defense spending, domestic discretionary spending, entitlement spending, & spending in the tax code” in its Co-Chairs’ Proposal Draft released Nov. 10.

The bi-partisan Commission, created by President Obama to address our nation’s fiscal challenges, proposes budget cuts beginning in FY 2012 so as not to disrupt the fragile economic recovery. It targets shrinking the debt to 60% of GDP in 2024 and to less than 40% by 2037, along with nearly $4 trillion in deficit reduction by 2020. (See current debt and deficit projections p. 10-11 of the proposal.)

For the near-term, the Commission has laid out a plan to save $200 billion in 2015 from equal cuts in defense and domestic spending.

The $100 billion in defense savings would come from the following proposed actions:

- Apply the overhead savings Secretary Gates has promised to deficit reduction instead of force structure and modernization ($28B)
- Freeze federal salaries, bonuses, and other compensation at DoD for 3 years ($5.3B)
- Freeze noncombat military pay at 2011 for 3 years ($9.2B)
- Double Secretary Gates’ cuts to defense contracting ($5.4B)
- Reduce procurement by 15 percent ($20B)

   End procurement of the V-22 Osprey ($1.1B)

   Cancel the Expeditionary Fighting Vehicle ($0.65B)

   Substitute F-16 & F/A-18Es for half the USAF and USN's planned buys of F-35 aircraft ($2.3B)

   Cancel the Marine Corps version of the F-35 ($3.9B)

   Cancel the Navy’s Future Maritime Prepositioning Force ($1B)

   Cancel the Joint Light Tactical Vehicle, Ground Combat Vehicle, and Joint Tactical Radio ($2.3B)

   Reduce planned levels for “Other Procurement” ($8.5B)
- Reduce overseas bases by one-third ($8.5B)
- Modernize Tricare, Defense health ($6B)
- Replace military personnel performing commercial activities with civilians ($5.4B)
- Reduce spending on Research, Development, Test & Evaluation by 10 percent ($7B)
- Reduce spending on base support ($2B)
- Reduce spending on facilities maintenance ($1.4B)
- Consolidate the Department of Defense’s retail activities ($0.8B)
- Integrate children of military personnel into local schools in the United States ($1.1B)

NOTE: For explanations for each action refer to the primary source.

At first glance, the very concept that half the proposed cuts in 2015 should come from defense is a position to object to, but the Commission’s proposals are just that – proposals. It is important for ROA to be familiar with what ideas are suggested, and be prepared to take a position should they be seriously introduced.

New Veterans Employment Center Unveiled at OPM

Erim Sarinoglu
ROA Intern

ROA was in attendance yesterday as the Office of Personnel Management (OPM) unveiled their new Veterans Employment Program Office on the anniversary of President Obama’s Executive Order 13518, “Veterans Employment Initiative.” OPM Director John Berry presented the center as a resource hub connecting veterans to the employment opportunities available across the many branches of the federal government.

ROA Current Issues: Employment

Located inside OPM’s 1900 E Street, NW building in Washington DC, the center is designed as a walk-in resource for veterans interested in federal employment. Veterans will have free access to the center’s counselors, computer resources and conference areas. The center will provide guidance on preparing resumes, identifying employment opportunities and counseling service members on their options and advantages when applying to the federal government. Equipped with technological aids for those with disabilities and private conference areas, the Veterans Employment Program Office will be fully operational for veterans.

Due to recently-established quarterly meetings with OPM, ROA has been more involved in the effort to increasing hiring of veterans to federal positions. The Veterans Services team at OPM under the direction of former Marine Colonel Ray Decker seems to have a fresher, more communicative, and more collaborative approach to improving federal employment of veterans across government. ROA is optimistic that collaboration with OPM will allow us to better serve our members and the veteran community.

Supreme Court Hears Argument in USERRA Case

Andrew Gonyea
Communications Assistant

The Supreme Court heard oral argument yesterday in the case of Army Reservist Sgt. Vincent Staub, who alleges he was fired from his job as an angiography technologist because of anti-military bias by his former employer, Proctor Hospital.

For background on this case, please consult the following resources:
* Law Review 0922: Is Personal Animus Discrimination? A USERRA case may be headed to the Supreme Court.
* Law Review 0922 Update: Supreme Court Agrees To Review Unfavorable 7th Circuit Case

* RELEASE: Supreme Court takes on Reservist’s Reemployment Rights Case; ROA to Brief

Over the course of the argument Justices honed in on a couple important points of contention: deciding what constitutes a “motivating factor” as it is written in USERRA, and the “Cat’s Paw” argument, which was used by the 7th Circuit Court in ruling against Staub.

Staub’s attorney, Prof. Eric Schnapper, and Eric Miller, Assistant to the Solicitor General, noted that under USERRA, military status has only to be a “motivating factor” in the employer’s decision to terminate the employee. Therefore, because the individual who made the final decision to terminate Staub had been influenced by supervisors who were “out to get” Staub because of his military status, military status was a “motivating factor” in the decision, making the termination unlawful.

Justices Alito and Kennedy found that reading of the rule “sweeping.” Alito noted that the individual who terminated Staub held no anti-military bias herself, and explained, using a hypothetical, that even the smallest factor in a good-faith decision to terminate an employee, such as one performance review out of dozens, could potentially open up an employer to a USERRA lawsuit, even if the decision-maker made every effort to determine the validity of those reviews. Alito expressed his opinion that the natural reading of “motivating factor” in USERRA, though not ideal, is that it is a factor which directly affects the person who makes the decision to terminate.

Along those lines, the “Cat’s Paw” argument used by the 7th Circuit Court and supported by Proctor’s legal team is that the unbiased individual who made the decision to terminate Staub would have had to be singularly influenced by biased supervisors in making her decision to have committed unlawful discrimination. Chief Justice John Roberts and Justice Sotomayor took issue with the “Cat’s Paw” test because it moves too far in the other direction, heightening a “motivating factor” as written in USERRA into what Roberts termed a “domination-motivating factor.” Sotomayor noted an unbiased individual who makes a termination decision may not be overwhelmingly influenced by a biased individual, but still relies in good part on those who are delegated supervisory responsibilities to provide recommendations for action. Justice Scalia told Proctor’s lawyer it would be difficult to prove to the Court that a motivating factor refers only to motive on the part of the person who made the decision to terminate, whether that person is 1) traditionally the decision-maker, or 2) became the de facto decision-maker by exercising “singular influence” over the traditional decision-maker.

The Supreme Court may send this case back to the 7th Circuit due to the problematic “Cat’s Paw” argument, and specifically the requirement for “singular influence.” Also, due to Congress’ expressed intent to have USERRA construed liberally in favor of the veteran, the Court could rule narrowly in favor of Staub without providing a new precedent for other federal workplace anti-discrimination laws.

The Supreme Court’s decision will likely be issued in the spring of 2011.

ROA Meets with Vets to Discuss New GI Bill 2.0

Erim Sarinoglu
Legislative Intern

ROA further expanded its role in promoting veterans’ educational benefits in meeting with IAVA and student veterans Oct. 27. The meeting, which took place at ROA’s headquarters, included Peter Nesbitt, President of the University Military Association at Georgetown University, who shed light on obstacles student veterans face at local institutions of higher learning. Also discussed were current efforts to reform the Post-9/11 GI Bill through the "New GI Bill 2.0."

Currently, the Post-9/11 GI Bill sets a maximum amount a student veteran may receive according to the state he chooses to study in. The limit is calculated as the highest combination of tuition and fees for a public school in that state, but this VA-calculation causes inconsistent treatment due to widely varying state tuitions, and places a disproportionate burden on vets who choose to study at private universities in states with low public university tuitions. About 25 percent of veterans that use the Post-9/11 GI Bill enroll in private universities, and in certain states and Washington, DC, these formulations make each dollar of the veteran’s earned benefit go much less far.

The New GI Bill 2.0 would provide some major improvements such as full coverage for all public schools, a direct $20,000 baseline payment for all private schools as part of the Yellow Ribbon Program, the inclusion of certificate and vocational schools, and eligibility of Title 32 Active Guard Reserve. But the prospects for passing improvement bills during the lame duck session are not good.

The reform has seen support from on both sides of the aisle, but election politics and small inter-party and inter-chamber skirmishes have left the bill “slow balled” and in limbo. The full coverage and new baseline payment schemes would alleviate most problems student veterans currently have with the bill. However, some Republicans think those measures would cost too much, even though the Congressional Budget Office says their cost estimates are inaccurate and inflated. Also, some Democrats don’t want to share the bipartisan limelight around election time. Other, more productive lawmakers from both sides are struggling to push the measure past more contentious issues like tax cuts.

ROA believes that the continued education of our veterans after their brave service is not only the right thing to do, but also is crucial in getting our economy on the right track with bright, well-educated leaders. ROA recently submitted testimony to Congress that included the requests that Coast Guardsmen’s Title 14 service be eligible, and NOAA Corps and USPHS members be provided eligibility for transferability. ROA looks forward to further expanding its role in promoting our veterans’ educational benefits as more investigative meetings about the Post-9/11 GI Bill occur in the coming weeks.

To help in the efforts to push the GI Bill 2.0 legislation forward, contact your Congressmen and Senators today.