Though senators have had months to think through their position on measures to curb military sexual assaults, more than 20 have shied away from taking public positions -- including major figures such as Minority Leader Mitch McConnell, R-Ky., and Majority Whip Dick Durbin, D-Ill.
Some Senate aides say privately they believe that many just do not want to admit they are planning to oppose the legislation heading to the floor, and they want to avoid taking a stand on an issue the Pentagon is heavily lobbying.
Still, many of those senators who say they are on the fence appear to be hung up over logistical questions surrounding how the amendment sponsored by Sen. Kirsten Gillibrand, D-N.Y. -- which would remove assault cases from the chain of command -- would work.
With the additional support of Majority Leader Harry Reid, D-Nev., and Sens. Dean Heller, R-Nev., and Cory Booker, D-N.J., announced this week, the bill has 50 senators publicly behind it but is still shy of the 60 needed, as the vote approaches.
“I personally will make sure I call or speak to every single undecided senator today,” Gillibrand said Tuesday. She has enlisted former military leaders and survivors of military sexual assault to make personal appeals to select colleagues, and she asserts that 20 to 25 senators are undecided.
Yet even as these fence-sitters mull their options, those choices are increasing, as an amendment by Sen. Claire McCaskill, D-Mo., has emerged as a primary alternative to Gillibrand’s legislation. It would add additional modest reforms that enjoy broad bipartisan support and are expected to be easily adopted.
And McCaskill herself has emerged as the lead opponent to Gillibrand’s effort.
McCaskill says that perhaps only five or six senators are undecided, and she insists that her efforts lobbying colleagues against Gillibrand’s amendment are about ensuring the best policy to address sexual assaults.
“Policy matters,” she said. “This is just about the policy: what is best for victims, what will put more perpetrators in prison.”
Sen. Chris Murphy, D-Conn., has not declared a position publicly. “I’ve just been careful about this,” he said. “I want to compare Gillibrand’s proposal to the steps that the military is taking on their own and what’s in the underlying bill.”
Murphy added, “The underlying issue for me is what will cut down on retaliation; the fear of retaliation is what prompts a lot of these crimes to go unreported, and I thought from the very beginning it is not a clear-cut case that an outside reporting system will necessarily cut down on retaliation. It likely will increase prosecutions, but I’m still taking a look at the issue of retaliation.”
Murphy said he has talked to McCaskill, Gillibrand, Senate Armed Services Committee Chairman Carl Levin, D-Mich., and the Defense Department.
He said some of the Pentagon’s arguments leave him unpersuaded.
“Their argument is that the chain of command will be damaged. I’m also not convinced of that argument. I’m not sure why a commanding officer would care any less about rooting out sexual assault simply because he doesn’t have prosecutorial power any longer…. I don’t really think the sky will fall if you set up a process outside the chain of command to ferret out the worst crimes.”
Greg Jacob, the policy director with the Service Women’s Action Network, said his group is fielding several technical questions.
“All the offices we are talking to, they are not just undecided just to be undecided,” he said. “They really have questions. They are really drilling down and asking for detailed explanations on this stuff -- whether it’s the bill, whether it’s military law, they want to make the right decision. For them, it is a big deal.”
Gillibrand has modified her amendment so it would apply to any major crime that is punishable by a year or more in prison, but it would exempt 37 specific military crimes.