Fight to repeal 'Don't ask' gets tougher

The fight to repeal the ban on openly gay military service members just got tougher.

Supporters of repeal are racing against the clock to see “Don’t ask, don’t tell” scrapped this year, but their success will surely be handicapped by the results of Tuesday’s elections. 

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Republicans gained control of the House and eroded the Democrats’ majority in the upper chamber.

The bruised Democratic leadership will bring Congress back to work before Thanksgiving and likely for a few weeks after the holiday, but the lame-duck session’s length is not yet clear and neither are the legislative priorities.

Republican gains, scheduling and stiff competition for floor time are not the only factors complicating the fate of repeal — President Obama’s administration also is appealing a federal court judge’s ruling that the ban is unconstitutional.

Still, Obama wants Congress to repeal the ban. He has been pressuring the Senate to take up the issue, and the next few weeks will test his sway with the upper chamber as he tries to fulfill his campaign pledge to one of his party’s voting blocs. 

Most Republicans, in both chambers, oppose scrapping the Clinton-era law, and many have insisted on waiting for a Pentagon report on the implications a repeal would have for troops. That report is due Dec. 1 of this year.

Gay-rights activists said they plan to apply full force over the next few weeks.

“The focus still has to be on the lame-duck session,” said Aubrey Sarvis, the executive director of Servicemembers Legal Defense Network, an organization dedicated to repeal of the law. “It will be challenging to get everything done. We need a commitment from Majority Leader Harry ReidHarry Mason ReidHarry Reid warns Trump 'can be reelected' Homeland Security Republican accuses Navy of withholding UFO info Poll: 47 percent back limits on Senate filibuster MORE [D-Nev.] and the president to bring the bill up.”

Energized by their wins, Republicans can put up resistance to Democrats scheduling votes on the massive 2011 defense authorization bill, which contains repeal language.

Republicans can also insist — as they did before the midterm elections — that Democrats open up the process for all amendments to the policy bill. That bill traditionally has been considered a “must-pass” because it gives authority to everything, from military pay raises and benefits to starting new defense programs.

Even if the Senate passes the legislation there is another significant hurdle: negotiations between the Senate and the House over the final bill. Those negotiations can take weeks, particularly because the two chambers have done nothing yet, even informally, to try to iron out differences, according to congressional sources.

Moreover, three of the leading negotiators — Sen. John McCainJohn Sidney McCainArizona Democratic Party will hold vote to censure Sinema The 13 Republicans needed to pass gun-control legislation Biden's debate performance renews questions of health MORE (R-Ariz.) and Reps. Buck McKeon (R-Calif.) and Ike Skelton (D-Mo.) — oppose repeal. McKeon told The Hill recently he would fight to take repeal language out of the defense bill. It’s rare that chief negotiators take out provisions from a bill if both chambers have adopted the same provisions, but it could still happen. 

In a GOP-led House, McKeon is expected to become the chairman of the Armed Services Committee. He wants the military to be heard on the repeal issue and to wait to see the December report before deciding on the next step. Skelton lost his bid for reelection. 

If the repeal fight slides into the new Congress next year, “all bets are off,” said Sarvis. Congress will have to write a new 2011 defense authorization bill. 

Repeal advocates were dealt a severe blow on Tuesday: their champion, Rep. Patrick Murphy (D-Pa.), an Iraq veteran and member of the Armed Services panel, lost his reelection bid. Murphy worked with both the White House and Senate on the repeal legislation.

But Sarvis stressed that gay-rights activists will continue to fight for repeal. He indicated that the onus will be on the Democratic-led Senate next year.