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.
Sen. Rob Portman, R-Ohio., is technically undeclared but said he's planning to support McCaskill and is probably a "no" on Gilllibrand, because of concerns he has heard from military leaders.
Sen. Sheldon Whitehouse, D-R.I., another senator who was recently considered undecided, said he is with McCaskill and Reed, the senior senator from his state.
"I've been with Claire McCaskill," Whitehouse said. When asked why he is against the Gillibrand bill, he said, "I'm supporting Jack Reed."
Other members—including a couple who remain in the undecided camp—aid they are uncomfortable with the fact that the Gillibrand bill would change the protocol of the military-justice system beyond sexual crimes.
It would cover some other crimes, considered a felony in the civilian justice system, that are punishable by a year or more in confinement—including robbery, forgery, extortion and even murder.
"I still haven't taken a position on it," said Senator Marco Rubio, R-Fla. "I still have been talking to a lot of the military leaders including many in my own state to get a better indication of how it would work…. It is a major change in the way we prosecute crimes in the military. I just want to make sure it doesn't undermine the chain of command."
The issue of encompassing a broader class of crimes than just sexual assault has so far been a deal breaker for some potential supporters, but Senate aides say that Gillibrand is not looking to further limit the scope of her bill as she had flirted with last year.
"I thought it was too broad for pulling out non-sexual-assault cases.… There hadn't been a problem in that area," said Senator Tim Kaine, D-Va., who said he is a "no" for now. "What we ought to do now is implement those [reforms included in the NDAA] and see how they work and if we haven't done enough and we need to do more we can revisit it."
The procedure for the vote has not been worked out yet. It is technically possible that 60 votes would be required to take up Gillibrand's bill, but that it could then pass with a simple majority. But Gillibrand has said she expects approval will require 60 votes.
The last time the Gillibrand measure was slated to come up for a vote, the senator enjoyed a sudden surge of momentum. She won six additional supporters, including key members like Senate Majority Leader Harry Reid and Senate Majority Whip Dick Durbin. They helped push her over the critical simple majority threshold to her current tally, in the lead up to an expected vote on her measure in the form of an amendment to the defense authorization bill late last year.
Advocates say they will need the pressure of lawmakers staring down a vote again to focus their attention and restart momentum.
"Keeping momentum, that is the challenge," said Greg Jacob, the Service Women's Action Network policy director and a former Marine.
Nancy Parrish, the president of Protect Our Defenders, said they will keep lobbying undecided and opposed senators to get 60 votes even if it takes multiple years.
"We're not going away," she said.
Gillibrand is continuing to work her colleagues. "The survivors' day on the Senate floor is coming and we will work as hard as we can until the gavel comes down to give them the justice system they deserve," she said.
"Nowhere in America does a boss get to decide whether or not a sexual assault occurred except the military. That needs to change."
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