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

[ Posted Wednesday, December 15th, 2010 – 17:48 UTC ]

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 sixteen 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 stand-alone 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" which 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 re-election. 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's 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: " 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 staredown 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.


Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant


-- Chris Weigant


16 Comments on “"Don't Ask, Don't Tell" Repeal's Last, Best Legislative Chance”

  1. [1] 
    Chris Weigant wrote:

    Program Note For Regular Readers:

    This Friday we will be pre-empting our usual Friday Talking Points column so that we may instead bring you "Part 1" of our annual "My McLaughlin Awards" columns (Part 2 will run next Friday).

    What this means is, everyone has less than 48 hours to post suggestions here for award winners.

    Take a look at last year's "Part 1" column to see the awards categories for the first week of awards. Then feel free to post your suggestions for nominees for ANY of these categories here.

    We now return you to your regular comments, already in progress...


  2. [2] 
    Chris Weigant wrote:

    Michale -

    (I'm really continuing the thread from last week's article here, just for reference.)

    I'm going to present you with a very loaded question, just to warn you. Feel free to ignore it if you wish.

    If you had the choice of the following two (and ONLY two) options, which would you prefer?

    (1.) DADT is repealed by Congress, the military takes the time to plan a transition, and makes the change as smoothly as possible.

    (2.) DADT is thrown out by the Supreme Court, and the military is forced to change policy overnight.

    Which do you think would be better for the troops? Looking forward to your response...


  3. [3] 
    Michale wrote:

    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).

    Or, more accurately, a minimum of two more years of kicking people out of the military because they refuse to lie about what they do (or inadequately covered it up).

    There is as much "science" that supports the theory that being a slut is genetic and being a liberal is genetic as there is being gay is genetic...

    I'm going to present you with a very loaded question, just to warn you. Feel free to ignore it if you wish.

    If you had the choice of the following two (and ONLY two) options, which would you prefer?

    (1.) DADT is repealed by Congress, the military takes the time to plan a transition, and makes the change as smoothly as possible.

    (2.) DADT is thrown out by the Supreme Court, and the military is forced to change policy overnight.

    Which do you think would be better for the troops? Looking forward to your response...

    It's a no brainer..

    Option one is obviously the best way to go, given only those two options...

    Now, let me pose a question to you... And to anyone who wants to respond..

    What's the best way for the military to repeal DADT??

    My choice is for the repeal to be announced for strictly 702 units...

    After that has shown there would be no issues (which is likely) then move the repeal to logistical and support units. There will likely be more of a fuss, but nothing insurmountable.

    Finally, announce the repeal for combat units....

    That's the SMART way to go about it.

    How much ya wanna bet that the Hysterical Left and those with the Pro-Gay agenda will want full integration immediately with absolutely NO prep time?? :^/


  4. [4] 
    Michale wrote:

    There is as much "science" that supports the theory that being a slut is genetic and being a liberal is genetic as there is being gay is genetic...

    To elaborate on this....

    Claiming that being gay is all about genetics is simply an agnostic's way of saying, "The Devil made me do it." :D


  5. [5] 
    akadjian wrote:

    Here's a few thoughts for awards ...

    Biggest Winner - Large American multinational corporations. Currently sitting on 1-2 trillion in extra cash. Executives slated to reap more if tax cut legislation passes.

    Biggest Loser The unemployed. Lost in the media festival around the tax cut package are jobs. The conversation has almost completely gotten away from jobs to who is going to get tax cuts. Who cares? How is any of this going to create jobs?

    Best Politician Nancy Pelosi. Tough as nails. A true progressive. Anyone conservatives demonize this much has to be doing something right :)

    Worst Politician Michael Steele. Conservatives make a comeback in November despite Steele's best efforts to stop them.

    Most defining political moment The tax debate. I think this says a lot about the state of politics. Conservatives controlling the conversation and setting the agenda. Democrats buckling all over the place.

    Most Boring Where to start? :) I'm gonna go with John Boehner. Hardly anyone knows anything about our new Speaker of the House. Guess he's working on being less boring by crying a lot in public. Boring.

    Bummest Rap Wikileaks

    Best Comeback The Republican Party for using the Tea Party to take Obama's campaign about change and make it their own.

    There's a couple anyways.

  6. [6] 
    Michale wrote:

    “Don’t Ask, Don’t Tell” Repeal’s Last, Best Legislative Chance

    By the bi, CW...

    Don't think I didn't notice the Babylon 5 reference in the commentary title.. :D


  7. [7] 
    Michale wrote:


    “Sen. Brown accepts the Pentagon’s recommendation to repeal the policy after proper preparations have been completed. If and when a clean repeal bill comes up for a vote, he will support it,” said Brown spokesperson Gail Gitcho.

    Now, the only question remains...

    Will the *LEFT* accept the Pentagon's recommendation to repeal the policy after proper preparations have been completed (emphasis mine)...

    THAT is the real question...


  8. [8] 
    Michale wrote:

    OK, so now DADT is repealed... More or less..

    Is the Left going to accept the military's way of repealing it to have as little impact on National Security??

    Or is the Left going to hysterically bitch and moan to try and get everything done THEIR way... IE as dangerously irresponsible as possible???


  9. [9] 
    Chris Weigant wrote:

    Michale -

    Not to correct you, but...

    This IS the way the Left set it up. They're the ones who wrote the repeal the way they did. Obama spent a year allowing the Pentagon to get ready, and study the issue. He didn't have to do that, but it's going to pay off. From the Washington Post story today:

    "According to the legislation, the issue would rest entirely with Obama and top military leaders, who must inform Congress in writing that they have reviewed the findings of a Pentagon study regarding an end to the ban and that the Defense Department has drafted the policies and regulations necessary to stop enforcing it. Those changes must not impact troop readiness, cohesion or military recruitment and retention, according to the law.


    Close military observers anticipate that the ease of ending the ban will vary widely among the different military branches and that the Pentagon may stagger implementation of the change across the military branches. "

    I don't know what else you could ask for, in terms of doing it smoothly and with as little impact as possible.

    I know you weren't a big fan of repeal (to be fair, you weren't all that big an opponent, either), but if you look at the law that passed, I think you'll see it's about as good as could be expected, all around.


  10. [10] 
    Michale wrote:


    Good points all...

    And if (and it's a BIG 'if') the Left allows things to be implemented in reality as it is on paper then I'll be the first one to applaud...

    I have no doubt that the gays that are in the military will put the needs of the military above all else, including any political agenda.

    It's the gay community outside of the military who will cause all the problems (if any).

    Let's face it, the Left is not a huge fan of the military to begin with. It's entirely possible (even likely) that the Left will use this as an excuse to stick it to the military.

    But, you are dead on. What it says on paper IS pretty much what I asked for..

    What remains to be seen is whether or not reality meets what is written..


  11. [11] 
    Michale wrote:

    My biggest pet peeve in this whole issue is the claim that gays will now "be allowed to be who they are"..

    It's not an issue of being who they are, but rather about being what they do...

    If there was ironclad evidence that being gay is nature and not nurture, then the discrimination argument would have merit.

    But there is no such evidence.

    So where does this lead us??

    Are bi-sexual people going to become the victims of "discrimination" and become a protected "class of people"??

    What about promiscuous people?? Liberals?? Pedophiles?? Serial Killers??

    There is "science" that shows that, with such people, it's nature over nurture..

    Where does this Political Correctness gone rampant end and common sense begin???


  12. [12] 
    Michale wrote:

    What about promiscuous people?? Liberals?? Pedophiles?? Serial Killers??

    For the record, I am not comparing the *actions* of gay people vs Pedophiles or Serial Killers.....

    Or Liberals... :D

    I am simply saying that there is evidence that shows that one can be "born" a liberal (IE nature) vs becoming a liberal (IE nurture)...

    And that evidence is just as "definitive" (IE subjective) as the evidence that one can be "born" gay (IE nature) vs choosing the gay lifestyle (IE nurture)

    Just wanted to clarify that so there isn't any misunderstandings...


  13. [13] 
    Elizabeth Miller wrote:


    What about heterosexual people? I mean, you left them out of your nature/nurture debate parameters.

    I don't really understand what your pet peeve is when it comes to the repeal of DADT. The whole point of repealing DADT is to allow gays and lesbians to serve openly in the military - that is to say, be who they are.

    How is it an issue of being what they do?

  14. [14] 
    Michale wrote:


    Because being gay is NOT "who they are".. It's what they do..

    Being Black is "who you are"... Being female is "who you are"...

    Being an accountant is what you do. Being a fireman is what you do. Having a loving marriage/relationship with the someone is what you do.


  15. [15] 
    Elizabeth Miller wrote:

    Whatever, Michale.

    So, what's your comment total. You must be up to 200 by now ... only four more days to go!

  16. [16] 
    Michale wrote:

    I think I am up to like 188 now..

    Oooops.. 189

    189 :D

Comments for this article are closed.