Supporters of “Don’t Ask, Don’t Tell” repeal are picking up the pieces after a devastating loss in the U.S. Senate and — amid fears the opportunity for repeal has been lost — anticipating another shot at passing legislation that would end the law after Election Day.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he continues to see a path for legislative repeal of “Don’t Ask, Don’t Tell” this Congress as he acknowledged the need for new efforts.
“We do have a shot in the lame duck,” he said. “And, I think, frankly, it’s better than 50/50, but we’ve got to change the mix. … It’s unlikely the vote will be that different.”
Still, Sarvis said “time is the enemy” even as he maintained that sufficient time remains this year to move forward with “Don’t Ask, Don’t Tell” repeal.
“We’re only talking about four or five days in November, and it’s unclear how many days in December,” Sarvis said. “This bill is tough to do in the best of circumstances when you aren’t up against time. I think it can be done, but time is a factor for sure.”
Alex Nicholson, executive director of Servicemembers United, said the legislative route to repeal will be a “challenge” and “those who let this vote fail yesterday really made it difficult for us all moving forward.”
“But we have no choice but to give it our all and try our best to push it through,” Nicholson said.
Jim Manley, a spokesperson for Sen. Harry Reid (D-Nev.), confirmed the majority leader’s plans to move forward with the defense authorization bill later this year.
“Sen. Reid reserved the right to reconsider the vote and that is what we intend to do at some point in the future,” Manley said.
Even before the vote, speculation and promises that Senate leaders would try again to start work on the defense authorization had emerged.
Sen. Joseph Lieberman (I-Conn.), the sponsor of Senate standalone repeal legislation, said Tuesday during a news conference he’s received assurances from Senate Majority Leader Harry Reid (D-Nev.) that the bill would come up again in the lame duck session after Election Day.
“If for some reason, we don’t get the 60 votes to proceed, this ain’t over,” Lieberman said. “We’re going to come back into session in November or December. I spoke to Sen. Reid [Tuesday]. He’s very clear and strong that he’s going to bring this bill to the floor in November or December.”
Senate Armed Services Committee Chairman Carl Levin (D-Mich.) said during a later news conference that he hopes the prospects for passing the defense authorization bill would be different after Election Day, but couldn’t offer more details.
“But as chairman of the committee, I’m going to do everything I can to get this bill before the Senate so that it’s subject to debate and amendment,” Levin said. “But I can’t discern what that path is at the moment. It’s too soon after the filibuster damage has been done.”
At least one political analyst is skeptical about the passage of “Don’t Ask, Don’t Tell” repeal in Congress this year.
Larry Sabato, a political scientist at the University of Virginia, expressed doubt about passage after Election Day — even as he acknowledged that “a lame duck session can be unpredictable.”
“From the perspective of September, the odds seem clearly against passage this year,” Sabato said. “Repeal of ['Don't Ask, Don't Tell'] would have to be fast-tracked, and that requires broad agreement in the Senate. That’s unlikely.”
On Tuesday, the U.S. Senate failed to invoke cloture to bring to the floor the fiscal year 2011 defense authorization bill — legislation to which “Don’t Ask, Don’t Tell” repeal language is attached.
The vote in the Senate was 56-43, which was shy of the 60 votes necessary to end the filibuster from Sen. John McCain (R-Ariz.).
A unified GOP caucus — in addition to Democratic Arkansas Sens. Mark Pryor and Blanche Lincoln — comprised the “no” votes that defeated a cloture vote. Sen. Lisa Murkowski (R-Alaska) was the only senator who didn’t vote.
Reid changed his vote to “no” on the legislation in a procedural move that would enable him to bring the legislation to the floor again.
Sarvis said the failure of the Senate to invoke cloture on the defense authorization bill is “shameful” because it means the continued discharge of gay, lesbian and bisexual service members.
“That vote means that gay and lesbian service members are going to continue to be discharged every day while Republicans and Democrats in the Senate figure out how to move forward,” Sarvis said.
Sarvis said the LGBT community needs to “express more outrage” over the vote to convince Senate leaders to schedule the vote again and for successful passage.
“If we aren’t offended, if we aren’t outraged by this vote, I’m not sure how the political dynamics change,” Sarvis said. “Yes, things will be somewhat better after the mid-term elections are behind us, but the few determined opponents are still going to be there.”
Various explanations have been offered for the loss on Tuesday, although partisan politics are widely seen as the reason for failure.
Some faulted the GOP caucus for being obstinate in its vote against cloture even though many Republican senators previously expressed support for the defense authorization bill as a whole.
In a news conference following the vote, Levin called the unified GOP obstruction of the defense authorization bill “outrageous and sad.”
Levin accused the GOP of initially opposing the move forward with the defense authorization bill because of the language that would lead to an end to “Don’t Ask, Don’t Tell.”
“For two days, we’ve heard here that they objected to our proceeding because of the language in the bill relative to ‘Don’t Ask, Don’t Tell,’ even though that language is very moderate language,” Levin said.
The senator noted that the provision provides that repeal would only take effect after the Pentagon working group completes its study on the issue and the president, defense secretary and chair of the Joint Chiefs of Staff certify the U.S. military is ready for repeal.
Levin added he couldn’t recall a previous time in which the U.S. Senate couldn’t proceed to debate on defense authorization legislation.
“It’s important to know that we were just simply trying to get to the point where we could debate a bill,” he said. “I don’t think a filibuster has ever before prevented the Senate from getting to a defense authorization bill.”
GOP senators — including Sen. Susan Collins (R-Maine), who supported the repeal amendment to the defense authorization bill in committee — accused Democratic leadership on the Senate floor Tuesday of being intransigent by limiting the number of amendments that could come to the floor.
“That is why I am so disappointed that rather than allowing full and open debate and the opportunity for amendments from both sides of the aisle, the majority leader apparently intends to shut down the debate and exclude Republicans from offering a number of amendments,” Collins said.
Sarvis said a number of factors played into the unsuccessful cloture vote on Tuesday, including the pressure that repeal advocates placed on Reid to schedule the vote regardless of whether 60 votes were present to move forward.
“Those who were advocating a vote this Congress always understood that we would need 60 votes to succeed,” Sarvis said. “So the reality is, the majority leader scheduled the vote, but we came up short. We lost Democrats that we thought would be with us up until a few days ago and we lost some Republicans until late last week that we thought would be with us.”
Sarvis said Levin and McCain may have to reach some agreement on the number of amendments that can be offered to move forward.
“It doesn’t look good for Democrats or for Republicans — and especially this Congress — to be the first Congress in almost 50 years not to approve an authorization for the funding of our troops, especially when we are in war,” Sarvis said.
Supporters of “Don’t Ask, Don’t Tell” repeal have also cited insufficient support from the White House as a reason why the cloture vote was defeated.
Sarvis said President Obama didn’t make an effort to encourage senators to vote for cloture in the days prior to Tuesday.
“I did not see the White House whipping the vote for 72 hours before,” Sarvis said.
Nicholson ascribed blame to Obama as well as Reid and other LGBT organizations.
“The White House didn’t lift a finger to help and certain gay rights organizations refused to criticize Senator Reid while he derailed the vote in advance,” he said. “It’s just not a good position to be in with all of the hurdles and challenges of a highly polarized lame duck session ahead.”
During a Tuesday news conference, White House Press Secretary Robert Gibbs denied Lady Gaga had done more to advance the bill than President Obama. The pop singer appeared at a rally in Maine to promote passage of “Don’t Ask, Don’t Tell” repeal legislation and tweeted with senators to encourage them to move forward.
“We wouldn’t be taking on these issues if it weren’t for the president,” Gibbs said. “This is an issue that passed the House because of the president and this administration’s work and the work of many members in Congress.”
Gibbs also ascribed blame to the 60-vote threshold needed to move forward with legislation in the Senate — even for a bill to authorize funds for the Pentagon — and said “it’s certainly not healthy for the way our government works and it sets an awful precedent for getting things done in the future.”
Sarvis said support from the White House during the lame duck session would be crucial to advancing “Don’t Ask, Don’t Tell” repeal.
“We need the president speaking on this issue in the lame duck asking senators to be with him,” Sarvis said. “We know he favors repeal, but now we need him engaged more than ever.”
In the wake of Senate defeat, repeal advocates are seeking other options to move forward on “Don’t Ask, Don’t Tell.”
Litigation seeking to overturn the law has received renewed attention. Both Log Cabin v. United States and Witt v. Air Force are moving through the courts and could lead to an end to “Don’t Ask, Don’t Tell,” although legal experts expect those cases won’t be resolved for years.
In a statement following the Senate vote, Joe Solmonese, president of the Human Rights Campaign, urged the Obama administration not to appeal a recent California federal court’s decision against “Don’t Ask, Don’t Tell” in the case of Log Cabin v. United States.
“We expect the Justice Department to recognize the overwhelming evidence that proves ['Don't Ask, Don't Tell'] is unconstitutional,” Solmonese said.
Even with litigation proceeding, Sarvis maintained that the legislative route is the best path for moving forward with repeal.
“The ball game is still in the Senate,” he said. “Yes, there’s some good things going on in the courts with Maj. Witt and the Log Cabin Republican case, but in all likelihood, those are going to be tied up for years.”
One question about a possible future vote on the defense authorization bill is what impact the Pentagon working group’s study on “Don’t Ask, Don’t Tell” due Dec. 1 would have on the legislation.
Sarvis dismissed the notion that the report represents a complication because he said he thinks the report would favor “Don’t Ask, Don’t Tell” repeal.
“They were asked to provide the [defense] secretary with a set of recommendations on how to implement open service,” Sarvis said. “Well, that is not going to be hurtful. Indeed, I’m not that concerned about the results of the survey.”
Nicholson said the completion of the Pentagon report should make voting for “Don’t Ask, Don’t Tell” easier for many senators, but said its release will be “thrown into the highly charged and high politicized environment of the lame duck session.”
“Unfortunately, the working group itself has become so politicized that its utility in this whole processed has been diminished because of that as well,” Nicholson said. “Bottom line — the administration really screwed this one up.”
Many senators, including McCain, have said they want to see the report before acting on “Don’t Ask, Don’t Tell.”
Sarvis predicted continued equivocation from these senators upon the completion of the report and congressional hearings may be necessary following the completion of the study to address concerns.
“Sen. McCain says, ‘Oh, I’m going to need some time to study that report and analyze how they came up with those recommendations,’” Sarvis said. “‘We may need some hearings on that.’ So that’s going to remain a moving target.”
Another possible complication in the legislative effort to repeal “Don’t Ask, Don’t Tell” later this year is state election laws.
According to Bloomberg News, state laws in Illinois, Delaware and West Virginia terminate the terms of appointed senators immediately after Election Day. Their elected successors may start in the lame duck session this year as opposed to the start of the next Congress.
These laws mean Sens. Ted Kaufman (D-Del.), Carte Goodwin (D-W.Va.) and Roland Burris (D-Ill.) — who voted in favor of cloture on Tuesday — may have to give up their seats to “Don’t Ask, Don’t Tell” repeal opponents in the lame duck session.
Sarvis acknowledged that a worst-case scenario of the loss of all three seats would complicate efforts to move forward with the defense authorization if the Senate faces another filibuster.
“If we’re facing another filibuster, I think it’s very, very challenging if we lose those three seats,” Sarvis said.
Sarvis said he’s spoken with Chris Coons, the Democratic nominee for U.S. Senate in Delaware, about “Don’t Ask, Don’t Tell” repeal.
“He looked me in the eye and told me that if he’s in the U.S. Senate, he will be voting for repeal,” Sarvis said. “So, I take heart from that commitment.”
Sarvis said he has “no idea” how Republican candidate Christine O’Donnell would vote should she win in the November election. O’Donnell is known for her opposition to gays and has spoken out against homosexuality.
Illustration courtesy of Georgia Voice