Democrats are trying to sneak a waiver that would allow Army Gen. (Ret.) Lloyd Austin to serve as President-elect Joe Biden’s defense secretary into a government funding bill that must pass by tonight to avoid a shutdown, according to Axios.

“During 11th-hour negotiations Thursday night, while haggling with Republicans over the final details for a coronavirus stimulus bill, Democrats made a bid to add the waiver,” Axios’s Hans Nichols and Alayna Treene reported. Republicans reportedly rejected that request.

The move, if successful, would be an end-run around congressional oversight on whether Congress should grant such a waiver to a retired general for only the third time in the nation’s history.

The law dictates that anyone appointed to the position of defense secretary be out of military uniform for at least seven years, as a cooling off period, in part to preserve the principle of civilian leadership of the armed forces.

A waiver from that law has been granted only twice before in history: in 1950 for George C. Marshall, who retired from the Army in 1945; and for James Mattis, who retired in 2013 and became President Donald Trump’s defense secretary in 2017. Austin retired from the Army in 2016.

The waiver for Mattis was granted after the House and Senate Armed Services Committees deliberated on the issue, and then forwarded it to the full House and Senate. Sticking a waiver for Austin in the funding bill would bypass that process. It would also bypass an awkward fight between the Biden administration and Senate Democrats.

At least four Democrats who are not in favor of granting Austin a waiver: Sens. Richard Blumenthal (CT), Tammy Duckworth (IL), Jon Tester (MT), and Elizabeth Warren (MA). Sen. Kirsten Gillibrand (NY) has also expressed opposition to granting Austin a waiver. That means the Biden administration would need help from Republicans.

It would also bypass an awkward situation for some Democrats. In 2016, sixteen Senate Democrats and one Independent voted against granting the waiver for Mattis. And 151 Democrats voted against it. They would have to explain why it was not OK to pass a waiver for Mattis, but OK for Austin.

House Speaker Nancy Pelosi (D-CA) even said at the time, “The American people are entitled to regular order and thoughtful scrutiny of nominees and any potential waivers.”

Axios reported, “Attaching the waiver to the omnibus would give political cover to some Democrats, including at least four on the Senate Armed Services Committee who have already gone on record opposing it.”

“If the move succeeds, Austin still would need to win confirmed from a Senate majority, but this would clear a hurdle that has complicated his prospects,” Axios reported.

Many Republicans who voted to grant Mattis a waiver support granting Austin one, too, but want the same process to occur for Austin as it did with Mattis, according to Axios.

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