Why Gillibrand bill faces midterm danger

Greg Nash

This year’s midterm elections and Senate retirements could cost Sen. Kirsten Gillibrand (D-N.Y.) as many as 11 senators who have backed her bill to take sexual assault cases outside the military chain of command.

The prospect of losing a major bloc of the 55 senators who supported Gillibrand’s proposal in a high-profile Senate vote last week, where the measure was rejected, could intensify the New York lawmaker’s efforts to get her legislation back on the floor this year.

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“Many people said to me, ‘Kirsten, I’m going to watch this — if it doesn’t get better within the next six months, I’m with you next time,’ ” Gillibrand said in a press conference after last week’s vote. “I think there will be many more senators who will side with us, because this is a huge problem.”

The tally was 55 to 45 in favor, falling five short of the 60 votes necessary to overcome a filibuster.

Now the focus on sexual assault will turn back to the military, which has seen a number of high-profile incidents over the past year that raise questions about its ability to handle the problem.

Gillibrand’s backers say she will continue to gain momentum on the issue, as more victims speak out, which will help convince colleagues that removing cases from the chain of command is needed to fix the problem.

“There’s just too much momentum and too many bad stories that just illustrate the core problem over and over and over again,” said Brian Purchia of Protect Our Defenders, an advocacy group that’s pushed for Gillibrand’s legislation.

“The core issue hasn’t been addressed, and until that’s addressed we’re not going to actually solve the problem,” he said.

But Gillibrand’s opponents, led by Sen. Claire McCaskill (D-Mo.), say they don’t expect senators would change their minds after the issue was debated for nearly a year.

They also say the reforms passed in last year’s National Defense Authorization Act will demonstrate that the military is making strides in tackling the issue.

“Over time, the more the reforms kick in, the more people will understand how off-base her solution is,” Sen. Lindsey Graham (R-S.C.) told The Hill. “The facts are on the side of the commander being more aggressive on the side of sexual assault prosecutions than the lawyers, so that, over time, will get out there.”

Gillibrand won the support of 44 Democrats and 11 Republicans in last week’s vote, but that coalition could be significantly depleted in the next Congress.

Four of her supporters are retiring, and six of the most vulnerable Democrats in 2014 — Sens. Mary Landrieu (La.), Mark Pryor (Ark.), Mark Begich (Alaska), Kay Hagan (N.C.), John Walsh (Mont.) and Mark Udall (Colo.) — all voted for Gillibrand’s bill.

Senate Minority Leader Mitch McConnell (R-Ky.), the Republican senator with the biggest Democratic target on his back this year, also had backed Gillibrand.

The opposition is also losing three senators to retirement, including Senate Armed Services Committee Chairman Carl Levin (D-Mich.). Levin’s likely successor as chairman, Sen. Jack Reed (D-R.I.), also opposed Gillibrand’s measure.

Gillibrand spokesman Glen Caplin said the senator was not concerned with what happens in the midterm elections when it comes to her legislation, noting she gathered support from senators ranging from Sens. Barbara Boxer (D-Calif.) to Ted Cruz (R-Texas).

“This is not a Democratic or Republican idea,” Caplin said. “If it’s a matter of making the case for new folks, that’s never been a problem for Sen. Gillibrand.”

Gillibrand plans to keep digging for more information on how the military has handled — and mishandled — sexual assault cases.

After an Associated Press investigation revealed uneven prosecutions in Japan, Gillibrand requested the military provide the same data for four major U.S. bases.

As chairwoman of the Armed Services Personnel subcommittee, Gillibrand will have the opportunity to once again bring her bill forward as a potential part of this year’s Defense authorization bill.

Greg Jacob, policy director of the Service Women’s Action Network, said there were senators who voted against Gillibrand’s bill because they wanted to wait to see what happens with the new reforms. Those senators could be convinced the next time around, Jacob said.

But some congressional aides expressed skepticism that anyone would change their mind within the next year.

“The question just becomes how much oxygen can this get prior to a new Congress?” said one aide who has worked on the issue. “It’s not like she left stones unturned in what was an extraordinary lobbying effort of her colleagues.”

The White House has also stayed on the sidelines so far — which Gillibrand said contributed to her defeat — but President Obama said in December that he was giving the military one year to show progress, or he would support additional reforms.

The debate is complicated by the fact that there will be little new data in the near term that would show whether the reforms put in place this past year are having an impact on victim reporting and prosecutions.

The Pentagon has seen reporting of sexual assaults go up roughly 50 percent in 2013, which defense officials say is a positive development that shows victims are coming forward.

But it’s virtually impossible to draw a line to show that the increased reporting is due to the changes passed by Congress, said Eugene Fidell, who teaches military justice at Yale Law School.

“The numbers are totally unaffected by anything President Obama signed,” said Fidell, who supports Gillibrand’s bill.

The immediate debate could be more focused on anecdotal cases. McCaskill has cited the sexual assault trial of Brig. Gen. Jeffrey Sinclair, in which the commander went forward with a case over the prosecutor’s objections.

The victim’s attorney also told the commander that the victim objected to a plea bargain, playing a role in the commander’s decision.

“The reality is the victim had a stronger voice, and that’s why this case is in the courtroom right now,” McCaskill told The Hill. “So much of this argument has been made to change the system on an anecdotal basis, and I think there’s going to be plenty of anecdotal evidence that these changes are working.”