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"Don't Ask, Don't Tell" Repeal's Last, Best Legislative Chance

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The House of Representatives has just voted overwhelmingly to repeal the military's "Don't Ask, Don't Tell" policy (DADT), which forbids gays from openly serving their country. The vote was an impressive 250 to 175 -- which is 16 more votes for repeal than the previous tally in the House (when they voted on the issue as part of the Pentagon's yearly budget). What this vote means is that we are now only one Senate floor vote and a presidential signing ceremony away from a historic end to such blatant discrimination being enshrined in federal law. Whether the Senate will pass the measure before the end of the year or not is still uncertain, but even with the down-to-the-wire nature of the lame-duck session, this still represents the best chance for DADT's repeal yet -- and also the last chance for what could be a very long time to repeal the policy by legislative means.

The Senate has voted twice in the past few months to block consideration of the legislation, both times as a part of the yearly military appropriations bill. This time will be different, since there are no extraneous issues to cloud the picture. After the last vote failed, garnering only 57 of the 60 votes necessary to move forward, the two key senators (Democrat Joe Lieberman and Republican Susan Collins) quickly stripped the DADT repeal language out and presented it as a standalone bill. The exact wording of this bill was what just passed in the House -- meaning, if the Senate passes it unchanged, no conference committee will be necessary and the bill can move straight to President Obama's desk for a signature.

Because the DADT repeal is now the only issue in the bill, Republicans can't derail the vote by focusing the public's attention on other, unrelated military issues. They can try adding such things as amendments, but they simply can't complain about issues already contained within the bill -- because there aren't any. In fact, Republicans just campaigned on a "pledge" that contained this very concept ("advance legislative issues one at a time") -- which they'll be sure to flip-flop on, now that the legislative issue in question is one not to their liking.

Senator Lieberman insists he has the 60 votes necessary to begin debate on the bill. The last time the Senate voted, one Democrat was in a dentist's chair and could not vote. She later appealed to have her vote (in favor of repeal) added to the vote count, but was denied on parliamentary grounds from doing so. This means the vote count starts at 58, not 57 (assuming her teeth are now OK, of course). Senator Collins did vote in favor of the measure last time, and will assumably do so again. But she was the only Republican to do so. And Democrats had one of their own members cross the aisle in the vote, newly-sworn-in Senator Joe Manchin of West Virginia (because he filled a seat vacated by Senator Robert Byrd's death, Manchin was seated immediately following the election, instead of in January with most of the other current senators-elect). Manchin ran, though, on a platform of being independent of President Obama and the Democratic agenda, and he has issued contradictory (and somewhat confusing) statements as to his stance on the DADT issue. Meaning, while he may be able to be convinced to vote for DADT repeal, it is not a sure thing at all at this point. If Manchin's vote is beyond reach, it would mean two other Republican senators would have to vote for repeal to defeat the inevitable filibuster attempt. Senator Scott Brown is an obvious target for Democrats to convince, as he hails from one of the most liberal and gay-friendly states in the union (Massachusetts), and he is up for re-election in 2012 (since he won his seat in a special election, when Teddy Kennedy died) -- meaning he may break from his party in an effort to boost his chances for reelection. There are a very limited number of other Republicans also mentioned as possible DADT repeal votes. But Lieberman could be right when he says he's got the 60 votes he needs lined up, as he's been pretty firmly saying so for weeks now.

If Lieberman is right, it could come down to a scheduling battle. Right now, Republicans are trying mightily to block absolutely everything in the Senate, in an effort to run out the clock and push everything to the next Congress -- where they'll hold the House and have five more votes in the Senate than they currently do. Senate Majority Leader Harry Reid is digging in his heels and grinding things forward as best he can. But there are a lot of other issues left for the Senate to deal with, which are all vying for attention. Today, the Senate began debating a nuclear arms reduction treaty (New START), and they've also got to pass the omnibus spending bill to keep the government running. Reid has also pushed for votes on other issues as well, such as the DREAM Act on immigration reform, and (Harry's from Nevada, remember) legitimizing online gambling to the benefit of some Las Vegas casinos. That's a lot of issues, and there isn't all that much time left.

But don't count Harry out quite yet -- because Reid is a master of using vacation time as leverage to force Republicans to allow some things to get done. Virtually every large, contentious piece of legislation in the past two years either passed or passed key milestones just before a vacation break. Reid knows that the one thing more sacred to Republican senators than their ideology is their precious vacation time. So while Republicans threaten to run out the clock, Reid is pushing back by saying: "Fine -- you want endless debates to waste time? Then we'll just stay in session over the Christmas break, how's that?" This has been successful at undermining Republican resolve time and time again, and it could indeed work this time around as well.

The White House has been fairly quiet about the whole debate, because President Obama reportedly has higher priorities than DADT repeal -- such as ratifying New START. But if ever there was a time for Obama to finally (finally!) make good on his promise to be a "fierce advocate" for gay and lesbian issues, that time is now. A new Washington Post public opinion poll was just released showing an astounding 77 percent of the public is in favor of allowing DADT to end. It's hard, in today's politically-divided country, to get 77 percent of the people to agree on anything. Breaking the poll's results down illustrates something even more astounding: "....support also cuts across partisan and ideological lines, with majorities of Democrats, Republicans, independents, liberals, conservatives and white evangelical Protestants in favor of homosexuals' serving openly." Such overwhelming support should goad the White House to come out with some strong support for the Senate to act on the issue before the end of the year. Obama would not be taking much of a political risk by voicing his support, and would in fact be risking more by not doing so. Which doesn't exactly mean it'll happen, sadly.

There are really only three outcomes with any measure of probability at this point. The first is that the Senate acts, approves DADT repeal, and Obama signs it into law. The second is that the Senate doesn't manage to pass the bill. If the bill fails, the third option is the one the Pentagon itself is strongly against -- the federal courts may change the policy without the input of Congress.

The first case is obviously the best possible option. Obama would sign such a measure if Congress forced him to take a stand -- because if he vetoed it, he would face a backlash from his own supporters, the likes of which we have not yet seen. Repealing DADT by legislation would mean the Pentagon could make the transition in an orderly fashion and deal with problems before they happen by being prepared for the change.

If the Senate does not pass the bill by the end of the 111th Congress, then kiss any chance of DADT's legislative repeal goodbye for the next two years, at a minimum. With a Republican House, DADT repeal is not only never going to pass, it will never even make it out of committee. Meaning a minimum of two more years of kicking people out of the military because they refuse to lie about who they are (or inadequately covered it up). And no guarantees beyond 2012's new Congress, either, since no one can predict at this point how the next election will turn out.

If DADT isn't repealed before the end of the legislative year, then the likely outcome will be the courts stepping in. Several important decisions have been handed down by federal judges already, where DADT was ruled unconstitutional. These cases will be decided at the appeals level next year. At least one of them will make it all the way to the Supreme Court. Once again, it's impossible to guess how the highest court will rule on the subject. About the only thing that is certain is that the decision will be a five-to-four split -- but not which side will be the "five." If the Supreme Court does rule against DADT, then the policy will likely end immediately. This is an outcome the Pentagon truly does not want to have happen, as they would much prefer the method outlined in the bill that the House just passed -- an orderly transition, in other words.

"Don't Ask, Don't Tell" is nearing its end. It will become a footnote in American history. The only real questions are how soon that happens, and how the end comes about. It could still take years to overturn the policy, and it could become even more contentious politically than it already is. The courts could step in and overturn it on their own -- which would leave Congress completely out of the loop, both while the court rules and forevermore (because once a law is branded unconstitutional, it is pointless for Congress to try and enact the same law again). But it could happen as early as next week.

Making the issue a single bill might mean a better chance of its passage. President Obama could throw his weight solidly behind holding a vote in the Senate. Harry Reid could win his stare down of the Republicans and force the vote. Joe Lieberman could be right when he says he's got 60 votes sewn up. That's, admittedly, a lot of "coulds." The whole thing could still easily get derailed. But the next few days are still the last best chance -- and the last chance, for the foreseeable future -- that legislative repeal of DADT has got. And this could wind up being a crowning achievement for the 111th Congress -- which would also go a long way towards generating some political enthusiasm from the Democratic base voters. If Senate Democrats can manage to achieve victory here, it will be a historic moment, and one Democrats can be proud of.

 

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