Sen. Kirsten Gillibrand is looking for senators who would allow her military sexual-assault bill to pass even if they don't vote for it directly.
The New York Democrat's controversial bill—which would take away commanders' power to decide which sexual-assault cases are prosecuted—has been granted a vote by leaders of both parties and could come to the floor as soon as next week.
Gillibrand has 55 publicly declared supporters for her legislation, and if she could convince 60 members to vote yes on a procedural vote to take up her bill, it could pass with a simple majority using the votes she already has racked up.
A victory for Gillibrand has been considered a long shot and remains a challenge, but there is a strategy in sight and she has already defied expectations. She has managed to attract the support from a majority of the Senate, despite the Pentagon's vociferous objections and amid the opposition of Armed Services Committee leaders.
Gillibrand's bill has an unusual coalition of some of the most moderate Republicans like Sen. Susan Collins of Maine and some of the tea-party stars like Sens. Rand Paul and Ted Cruz. She has a majority of Democrats but is missing the support of some crucial Armed Services members such as Chairman Carl Levin of Michigan and the committee's heir apparent, Jack Reed of Rhode Island.
One of the most outspoken opponents of Gillibrand is fellow Democrat Claire McCaskill, who has been fighting Gillibrand's legislation with a noncontroversial alternative that would allow sexual-assault victims to provide input into their prosecutions and improve the accountability of the commander, among other provisions.
McCaskill is more senior than Gillibrand on Armed Services and has a long history of working to combat sexual assault, including during her previous career as a prosecutor in Missouri specializing in such crimes. She has been using her clout to lobby colleagues hard to oppose the Gillibrand bill.
Both the Gillibrand and McCaskill bills have been promised votes after being stalled in the Senate for months. Under the terms of an agreement reached between Majority Leader Harry Reid and Minority Leader Mitch McConnell, they will receive an expedited debate and are expected to be up for votes sometime in March before the next recess.
Gillibrand's strategy is particularly tough since McCaskill's bill—which enjoys little if any opposition—would receive its own procedural vote, so there's no way for Gillibrand to piggyback off of the other bill's popularity.
Gillibrand, who clearly has a vested interest in channeling momentum, says she is confident she can succeed in finding 60 votes for cloture to pass her bill. "Yes, I think it will," she said.
Sometimes members are willing to vote yes to proceed to a bill they don't want to vote for, which Iowa Republican Chuck Grassley says "is a way of having your cake and eating it too."
But those are usually pretty rare circumstances on measures members believe must pass but do not want to attach their name to.
A recent example is the Senate's vote on the debt ceiling. Earlier this month, 12 Republican senators joined Democrats on a crucial procedural vote of 67-31 that ensured the debt ceiling was raised, even though senators approved that measure on a party line vote of only 55-43. But that vote held the nation's borrowing authority in the balance and its failure could have caused market mayhem.
The strategy would not be an easy one to pull off, but even some Republican opponents say it is feasible.
"It's possible because she's really worked hard on it, so I'd say maybe," said GOP Sen. John Hoeven of North Dakota, who does not support her bill. "But if not, the reason would be people want to have some time to see how some of the provisions that were just enacted work.... It's too soon."
It's not clear that Gillibrand can make such a dynamic work to her advantage because many members equate the vote on the procedure with deciding a bill's fate.
"Usually members treat the cloture vote as the vote," said Republican Sen. Mike Crapo of Idaho.
Unsurprisingly, most members rate Gillibrand's odds of success in line with their own interests, with supporters saying it is conceivable it could pass and opponents shooting it down.
"I doubt it," said Republican Sen. Jeff Sessions of Alabama, who is opposed to the bill. "The military fully understands the seriousness of the issue and is making many changes.… The whole culture of the military is that the commander is responsible for his unit, and when you bring in people outside to be involved in discipline and leadership, you've eroded a classical military principle that's fundamental."
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This article appears in the February 28, 2014 edition of NJ Daily.