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Reality is settling in, and many advocates for repeal of "don't ask, don't tell" have begun to acknowledge that passing the National Defense Authorization Act in the lame-duck session after the midterm election is unlikely at best and could ultimately rest in the hands of Republicans.
A nearly insurmountable series of negatives seem to be stacking up: The White House is not engaged, time is running terribly short, Republicans are winning the political battle on the legislation, the midterms only stand to weaken Senate Democrats, and many fear the release of the Pentagon's study of repeal in early December could deal a final blow to the effort.
"When you actually look at how much time Congress has to be here in lame-duck and the appetite to get difficult bills done, it will be very difficult to move the defense authorization bill," said Winnie Stachelberg, who is vice president of external affairs at the Center for American Progress and has worked on the repeal effort.
Stachelberg tempered her comments with glimmers of hope, pointing out recent remarks from White House deputy chief of staff Jim Messina, who last week spoke to a group of students at the University of Montana about DADT and said, "We're going to get that done this year."
Still, she added, "when you throw in the fact that Secretary [Robert] Gates continues to say the legislation should come after the Pentagon's working group study, which is due December 1, it's an unbelievably narrow needle to thread with many competing legislative priorities."
White House spokesman Shin Inouye said the administration stood by Messina's declaration and forwarded White House press secretary Robert Gibbs's comments last week that "the President, along with his Administration, will continue to work with the Senate Leadership to achieve a legislative repeal of DADT as outlined in the NDAA this fall."
But some Capitol Hill staffers are not optimistic about the bill's prospects.
"I am exceptionally worried about the legislative route," said one Senate Democratic aide, who spoke on the condition of anonymity. "The closer we get to the December 1 date, the more perilous it becomes."
The aide was also not convinced that statements from the White House press office would translate into any real political pressure on the Hill -- not the kind that was applied during the effort to pass the stimulus bill last year, for instance, when White House chief of staff Rahm Emanuel camped out for nearly two weeks on Capitol Hill.
"We were really looking for the president or the very senior members of the administration to be calling people regularly to push this, but the White House is not stepping up to the plate in any meaningful way on this. We had 59 members, we have 70% of the American people, and the Republicans were still able to seize the narrative on this," the aide said of Democrats' failure to reach cloture and advance the bill last week. "Now, how is that going to get better in the slightest after the midterms?"
The dire state of the legislative effort is reflected by the fact that members of Congress in both chambers are now circulating a letter urging President Barack Obama not to appeal a recent decision that ruled "don't ask, don't tell" unconstitutional. Last week Rep. Jared Polis released a letter that had 69 House signatories, and a similar Senate letter originating from senators Kirsten Gillibrand and Mark Udall now claims 11 members and counting, according to those familiar with the effort.
"These are members that don't often go on record talking about a court case," said the aide, noting the unusual nature of the circumstances. "Most members are loath to do that because they don't want get involved in a court case."
Senate Republicans have lobbied aggressively against proceeding on the bill -- legislation that conservatives usually push for since it funds the Department of Defense. If lieu of passing the defense authorization bill, Congress could pass a continuing resolution (CR) that would provide supplemental cash flow until next year's Congress can rewrite the legislation. But even a CR cannot address the full range of projects and funding needs of the Pentagon.
In years past, Republicans have politically pounded Democrats for delaying what's often seen as "must-pass" legislation, calling them unpatriotic and, in some cases, suggesting they were collaborating with al Qaeda. But even before last week's vote, which stymied consideration of the bill before the Senate recesses for the November election, GOP senators began laying the groundwork for killing the legislation altogether.
"The military would be better served not having this bill passed, the authorization bill, than let it to be used as a political football the
way it's being used," Sen. Lindsay Graham, who sits on the Senate
Armed Services Committee, told National Public Radio. "It would be better served to have
input on repealing 'don't ask, don't tell' before we repeal it."
And Sen. John McCain, the ranking minority member on the Armed Services Committee and a vociferous detractor of the repeal effort, began questioning whether the Pentagon's study would even provide the right information since it has been focused on how to implement repeal rather than whether to repeal.
"Why couldn't we have done what our service chiefs want and what our senior enlisted people want, and that is an assessment of battle effectiveness and morale of repeal of it, and then decide to whether to repeal 'don't ask, don't tell?'" questioned McCain in the same NPR piece.
The GOP's success in blocking the legislation to date has left many to believe that the bill's fate is ultimately at their whim, especially since Republicans might win any of three Senate races in Delaware, Illinois, and West Virginia where the victor would be seated immediately following the midterms.
"So much is going to depend on the GOP," said one Hill veteran who is close to the issue. "Regardless of how many seats they have, what does [Minority Leader] Mitch McConnell do? Do they allow it to move forward, are they willing to reach an agreement on the amendments, or will they just obstruct till they take office in January?"
The source, who spoke on the condition of anonymity, also echoed concerns about the White House's ability and will to push this bill through, noting recent testimony from the nominee to become the next commandant of the Marine Corps, Gen. James Amos.
In his written testimony last week, Amos said he opposes changing the law, which he characterized as a "reasonable" compromise.
"That's rule number 1 -- if you disagree, you do it in private, not in public," said the source. "[President Lyndon B. Johnson] would have had someone on the guillotine in an hour!"
Amos also foreshadowed what could be a calculated campaign of leaks by repeal detractors at the Department of Defense.
"I've heard at the Marine bases, and the Marine input for the online survey has been predominantly negative," he told the Senate Armed Services Committee.
The Senate Democratic aide said that type of intel could entirely skew the results of the working group before their study is even released.
"Once those leaks come out, they will weigh on members," said the aide, which could begin to peel away moderate Democrats who were already on the fence about repeal.
But R. Clarke Cooper, executive director of the Log Cabin Republicans, said at least the study would give him occasion to return to some GOP senators' offices after the election and ask for their vote.
"There were a number of Senate offices that said they wanted more time, they wanted to get past Election Day, and a few said, Wouldn't it be much better if my boss had the DOD study in hand?" he said. "I don't want to say it's going to be easier, but it will be another opportunity for repeal groups to get back in touch with members and secure additional votes."