The need to shepherd the defense authorization bill through the Senate in the lame-duck session has left the Democratic leadership with a precarious dilemma.
Senate Majority Leader Harry ReidHarry ReidWeek ahead: House to revive Yucca Mountain fight Warren builds her brand with 2020 down the road 'Tuesday Group' turncoats must use recess to regroup on ObamaCare MORE (D-Nev.) may not be able to secure enough votes to pass the bill because of language repealing the ban on gays in the military. Stripping that provision may be the only way to pass the legislation, which authorizes funding and sets policy for the Pentagon.
And with a Republican majority in the House and diminished Democratic numbers in the Senate in the incoming Congress, the lame-duck session may be the last chance to repeal “don’t ask” before the 2012 presidential campaign begins in earnest.
If Reid isn’t able to move the repeal through the Senate, Obama will have to explain to his liberal base why he failed to follow through on a central promise from his 2008 campaign.
Both Reid and the chairman of the Senate Armed Services Committee, Sen. Carl LevinCarl LevinFor the sake of American taxpayers, companies must pay their fair share What the Iran-Contra investigation can teach us about Russia probe Senate about to enter 'nuclear option' death spiral MORE (D-Mich.), have been vocal supporters of repealing ban. And Levin, together with another chief supporter, Sen. Joe Lieberman (I-Conn.) was able to include a repeal provision in the 2011 defense authorization bill.
Sen. John McCainJohn McCainThe Hill's 12:30 Report Bipartisan friendship is a civil solution to political dysfunction Week ahead: Pentagon funding in the balance as deadline looms MORE (Ariz.), the panel’s leading Republican, has been pulling out all the stops to see that provision removed from the Pentagon’s massive policy bill. The Senate minority leader, Mitch McConnellMitch McConnellCompromise is the key to moving forward after Trump's first 100 days Juan Williams: Trump's 100 days wound GOP Judd Gregg: Trump gets his sea legs MORE (R-Ky.), backs him.
The defense authorization bill will not be part of the Senate’s schedule this week. But one of the military officers leading the Pentagon’s study into the implications of repeal is scheduled to testify before the Senate Armed Services Committee on Thursday. Gen. Carter Ham has been nominated to lead Africa Command and will appear for a confirmation hearing, offering a chance for lawmakers to press him on the matter.
The Pentagon study — which both sides will likely use to make their respective cases — is due on Dec.1. Results leaked recently to The Washington Post showed the military could lift the ban with minimal risk to the current war operations. But, at the very least, Republicans will insist on hearings on the findings. The pressure of the running clock could further diminish the chances of passage of the defense bill containing the repeal provision.
Any impasse on the defense bill’s passage usually triggers fears among lawmakers that they will be viewed as anti-military. And defense authorizers have always fought — successfully, for the past 40 years — to pass the defense bills, albeit sometimes just in the nick of time. This year, several veteran lawmakers will likely also be fighting to protect their legacy: Reps. Ike Skelton (D-Mo.), the chairman of the House Armed Services Committee, and Gene Taylor (D-Miss.), a senior panel member, both of whom lost their reelection fights and both of whom oppose repeal.
Skelton, one of the chief architects of “Don’t ask” in 1993, brought the 2011 defense authorization bill to the House floor without repeal language. That was added to the bill during the debate.
In wanting to have a final bill without repeal, Skelton would find some strong allies among leading Republicans: McCain and Rep. Buck McKeon (Calif.), the House Armed Services Committee ranking member. Of the Big Four — the chairmen and ranking members of the defense panels — only Levin favors repeal.
Informal deliberations between the House and Senate committees over the defense bill already broke down this week over the politics of repeal. But congressional sources said the committees may attempt to revive discussions next week.
Much depends on how Reid handles the issue. But if Congress fails to pass a final bill, or the final bill does not include repeal, it will deal a blow to the president who has promised both publicly and privately to the gay rights community that the law will be scrapped.
Gay rights activists have become increasingly impatient with the White House on the issue, and tensions have escalated in recent weeks.
Those who want to see the end of “don’t ask” have heckled the president at campaign stops and town hall meetings, demanding to know why he hasn’t done more. Gay rights advocates are particularly upset with the administration’s decision to appeal a court ruling that overturned the military’s policy.
Not ending the policy “would be a major setback for gay and lesbian service members as well as the president,” said Aubrey Sarvis, the executive director of Servicemembers Legal Defense Network an organization dedicated solely to repeal.
While the leaked results of the Pentagon’s repeal study put wind the sail of repeal supporters, they had the opposite effect on detractors. The Family Research Council, a conservative organization, is asking Defense Secretary Robert Gates to investigate the leak.
“It’s laughable to argue that people who anonymously leak one-sided information to a reporter are less likely to ‘mischaracterize the findings’ of a ten-month study than are people who wait to read that 370-page study in full,” FRC president Tony Perkins said in a statement.
“We have criticized this study from the outset because [it was] forbidden to explore the central question before the country—not how to implement a repeal of the current law, but whether doing so is in the best interest of the armed forces,” he added.
Pentagon Press Secretary Geoff Morrell said on Friday that Gates
"strongly condemns the unauthorized release of information" related to
the report and has directed an investigation to find out who provided
information "without authorization and in violation of Department
policy and his specific instruction."
Gates has made clear that he would also like Congress to repeal the law. The alternative he warned could be harmful for the military. Inaction by Congress could leave the fate of repeal in the hands of the courts. A California federal judge has already ruled that “Don’t ask, don’t tell” is unconstitutional. The Obama administration is appealing that ruling and in the meantime asking that the ban stays in place.'
The Supreme Court on Friday decided to continue enforcement of the “Don’t Ask, Don’t Tell” law while its constitutionality is under review in the lower courts.