Why Is Kirsten Gillibrand's Military Sexual-Assault Bill Stalled Out?

Her proposal—the stronger of two under consideration—is struggling to get the 60 votes necessary to overcome a filibuster.
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Larry Downing/Reuters

Senator Kirsten Gillibrand is running out of options in her bid to assemble the 60 votes she needs to win her high-profile battle to change the way the military handles sexual assault.

The New York Democrat has 53 supporters for her proposal, but that falls seven short of the tally likely needed to overcome the ever-present threat of a filibuster. And though Gillibrand insists she's still building support, the roster of undecided senators is looking less and less friendly.

In late November, Gillibrand's lobbying allies made a list of 25 who had not yet committed to the sentor's proposal but who—in the view of the advocates—had not explicitly ruled out joining her effort. The move to bring those 25 over, however, is foundering.

Of those 25 potential votes, nine have joined Gillibrand's opposition, and eight are indicating they are at least leaning against her.

Now, the list of undecideds includes only one Democrat—Montana's Max Baucus—and seven Republicans: Tom Coburn, Thad Cochran, Orrin Hatch, Mitch McConnell, Jerry Moran, Marco Rubio, and Pat Toomey.

So why is Gillibrand's bid stalling?

For one, several senators are opting to support a separate, less controversial military sexual-assault measure.

Missouri Democrat Claire McCaskill is proposing a package of more moderate reforms that would increase commander accountability, allow survivors to challenge unfair discharge from the service, and stop soldiers from using good military character as a defense. The plan is noncontroversial, enjoys broad bipartisan support, and is expected to be adopted easily whenever it comes up for a vote.

That measure, however, doesn't include one of the most highly sought-after reforms by victim advocates: stripping the chain of command of its power to decide whether-sexual assault cases are prosecuted. And that's the key switch Gillibrand is pushing for.

McCaskill isn't backing Gillibrand's bill—she actively opposes it—and the two Democrats' relationship has grown tense over the matter.

As well as McCaskill's alternative, several senators said they felt Congress had just made significant strides addressing the issue with reforms that were included in the National Defense Authorization Act that the Senate passed just before it adjourned for the year.

"I actually think that the result we ended up with in the defense authorization bill is probably the correct way to go," said Sen. Ron Johnson, a Wisconsin Republican who had been targeted as an undecided senator, but confirmed he plans to vote no on the Gillibrand bill.

Others did not realize the bill is pending on the calendar, or are dubious it will actually come up for a vote, which Senate aides say would be February at the earliest. With so much else, particularly fiscal matters, dominating the agenda, there is little driving attention on the Gillibrand bill, or the far less controversial, alternative from McCaskill and New Hampshire Republican Senator Kelly Ayotte, R-N.H., which would give Gillibrand opponents something to be "for."

"We'll see if they bring it up," said Wisconsin Republican John Barrasso another senator recently considered undecided, who now says he is a no. "You want to leave the chain of command in charge. You need to do everything you can to lessen the amount of sexual assault. I think the National Defense Authorization Act has done a significant amount; it could go further. I think that the Ayotte-McCaskill bill addresses that."

McCaskill has argued that Gillibrand's measure would hurt rather than help the problem. She is backed by retiring Senate Armed Services Committee Chairman Carl Levin, D-Mich., and his heir apparent, Sen. Jack Reed, D-R.I.

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Stacy Kaper is a staff writer (economics) for National Journal.

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