No final decisions have been made, but on Monday, lawmakers floated adding the measure to the spending bill, the aides said. The waiver being considered would only apply to Mattis and would not change the overall law. The House and Senate on Tuesday are expected to release full details of the funding bill that would keep the government open past the current Dec. 9 deadline.
Under a rules change Senate Democrats put in place in 2013, Cabinet nominees can now be confirmed by a simple majority. But Mattis’s need for the waiver offers Democrats the opportunity to slow down or potentially block at least one of Trump’s Cabinet nominees.
If Republicans include the waiver language in the year-end spending bill, they would be daring Senate Democrats to block legislation to keep the government funded over their concern about changing the law for Mattis, who oversaw operations in Iraq and Afghanistan as head of U.S. Central Command.
The language being considered would not directly provide the needed legal change for Mattis to run the Pentagon, but would instead prevent waiver legislation from being filibustered next year. This would allow Republicans to still hold a roll-call vote on the issue in January, but they could do so without concern that Mattis’s nomination could be blocked.
Some Hill Republicans said it’s important to hold a stand-alone vote on allowing Mattis to circumvent the current restrictions on former military officials serving as secretary of defense.
House Armed Services Committee Chairman Mac Thornberry (R-Tex.) thinks the waiver should be a “stand-alone piece of legislation that members have time to consider and debate,” said his spokesman, Claude Chafin.
The fast-track measure could also help GOP leaders persuade some defense hawks to support the year-end spending bill, which would keep agencies funded at current levels into the spring, despite their concerns that it will leave the military unable to make necessary investments for the year to come.
The measure is likely to get some pushback from Democrats, but it is unlikely that any lawmaker would be willing to oppose the spending bill and threaten a government shutdown over Mattis’s nomination.
Sen. Kirsten Gillibrand (D-N.Y.) has already said she will oppose a waiver for Mattis on principle, as “civilian control of our military is a fundamental principle of American democracy.”
Aides have said that other Democratic senators agree with Gillibrand, but haven’t said so publicly.
There is precedent for granting waivers like the one currently being contemplated.
In 1950, when President Harry Truman nominated Gen. George C. Marshall to become secretary of defense, he needed a waiver to get around what was then a 10-year prohibition on former generals leading the Pentagon. When Congress passed that waiver, lawmakers noted that it was their “sense” that after Marshall, “no additional appointments of military men to that office shall be approved.”
In 2008, the requirement was reduced to seven years.