Gillibrand’s campaign went down to the final hours before the vote. Gillibrand's assault bill derailed

Sen. Kirsten Gillibrand came up short Thursday in her yearlong campaign to overhaul military sexual-assault policies, falling five votes short of the 60 needed to overcome a filibuster.

The New York Democrat’s bill, which would have removed the chain of command from prosecuting sexual assaults and other major military crimes, was derailed in the Senate on a 55-45 vote, closing out one chapter in a debate that divided the Senate but not along typical partisan lines.


Ten Republicans, including Minority Leader Mitch McConnell of Kentucky and 2016 presidential hopefuls Sens. Ted Cruz of Texas and Rand Paul of Kentucky, backed Gillibrand’s controversial chain-of-command bill. But that wasn’t enough to overcome 10 Democratic votes against her, including prominent defense hawks like Armed Services Committee Chairman Carl Levin of Michigan and Sen. Claire McCaskill of Missouri. Sen. Angus King (I-Maine) also opposed the bill.

( Q&A with POLITICO's Juana Summers on the military sexual assault bill)

Gillibrand’s campaign went down to the final hours and minutes before the vote, and the outcome remained uncertain to the end as about a half-dozen Republicans and one Democrat — Sen. Mark Warner of Virginia — refused to say publicly where they’d fall.

Warner ultimately sided against Gillibrand, one of several surprises during the tense roll call. Sens. Tom Carper (D-Del.) and Mark Kirk (R-Ill.), who was lobbied by Gillibrand right up to the minute before he cast his vote, had previously indicated support for the New York Democrat. Both went against her on the procedural vote.

Kirk, a retired Navy Reserve officer, told reporters after the vote that he’d changed his mind after hearing arguments from Sen. Kelly Ayotte (R-N.H.) that Gillibrand’s bill could force much broader changes to the World War II-era military justice system. He also said he feared having outside lawyers take over prosecuting military cases and disrupting the unique culture of the armed services.

( POLITICO's Chain of Command series)

“I wanted to make sure the captain of a ship is really the captain of the whole ship,” Kirk said.

The Gillibrand vote also exposed deep rifts inside the GOP on national security and women’s issues.

McConnell, who if he survives a GOP primary will face Democrat Alison Lundergan Grimes in November, bucked the Pentagon to join the libertarian-minded Paul in support of the chain-of-command change. Sen. Mike Enzi (R-Wyo.), who was facing a primary challenge against Liz Cheney until she dropped out in January, also voted with Gillibrand.

Then there’s the 2016 factor. Gillibrand is widely seen as a Democratic presidential contender if Hillary Clinton doesn’t get into the race. And on the Republican side, Sen. Lindsey Graham of South Carolina, an Air Force lawyer and defense hawk, didn’t hesitate to chide two potential primary front-runners — Paul and Cruz — for siding against the Pentagon.

“People wanting to run for president on our side, I will remind you of this vote,” Graham told reporters. “If you want to be commander in chief, you told me a lot about who you are as a commander-in-chief candidate. You were willing to fire every commander in the military for reasons I don’t quite understand, so we’ll have a good discussion as to whether or not you understand how the military actually works.”

( Also on POLITICO: Full defense policy coverage)

Cruz insisted in an interview that his presidential ambitions didn’t factor into his position.

“This issue shouldn’t be political,” he said. “It’s about doing the right thing. It’s about standing with the men and women in the military. It’s about standing against sexual assault.”

Another 2016 contender, Sen. Marco Rubio (R-Fla.), waited until the vote to take a public stance. “Just want to make sure I do the right thing,” he told reporters beforehand. The senator noted he’d held more than 20 meetings with military brass, victims and senators on both sides of the issue.

For her part, Gillibrand complained after the vote about several of her colleagues. “Too many of the members of the Senate have turned their back on these victims and survivors,” she said. And she also said she was disappointed with President Barack Obama, who issued a statement in December, saying he’d give the Pentagon until the end of 2014 to show progress on sexual assaults before deciding whether to push for stronger reforms like those in her bill.

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If Obama had weighed in, Gillibrand said he could have helped tip the scales in favor of her proposal.

“I made my greatest case,” she said. “I advocated for this position, this reform. The president’s been very clear he wants to end sexual assault in the military. He wants it to be further studied and he wants to see progress on whether it’s been accomplished in the next year.”

Cruz was more pointed in his criticism of Obama.

“I will note there’s been a complete absence of leadership on this issue from President Obama,” Cruz told POLITICO. “President Obama doesn’t need legislation to make this happen. As commander in chief, he’d have the ability to implement serious reforms.”

No matter the outcome of Gillibrand’s bill, the debate generated significant attention to the Pentagon’s policies at a time when the issue also surfaced in several high-profile criminal trials, and in the Oscar-nominated documentary “The Invisible War” and as a major plot line in the second season of the Netflix drama “House of Cards.”

( Earlier on POLITICO: Gillibrand lauds 'House of Cards' military sexual assault plot)

“Taking the long view, there’s a real victory here because we have improved the system whatever the outcome; we’ve raised public awareness,” Sen. Richard Blumenthal (D-Conn.), a leading Gillibrand supporter, said in an interview. “The military’s system of justice for sexual assault will never be the same. There have been historic changes if only because commanders will never again regard sexual assault in the same way. They’ll pay attention. They’ll respect survivors and they’ll pursue perpetrators in a way they haven’t before. That’s a victory.”

Also helpful: Gillibrand’s rivalry with McCaskill, a fellow female Democrat and former Kansas City-area prosecutor who was kept busy lobbying undecided senators as the vote finally came to a head.

McCaskill’s argument was twofold. She urged undecided senators to oppose Gillibrand and give the Pentagon more time to implement dozens of new sexual assault requirements from the most recent defense authorization law, including making it a crime to retaliate against a victim who reports an incident and prohibiting commanders from overturning jury convictions.

And she insisted Gillibrand’s approach would do just the opposite of what its sponsor promised, leading to fewer successful prosecutions while disrupting how the military deals with its ranks.

“In addition to it not increasing reporting, in addition to it not protecting from retaliation, in addition to removing commanders from their accountability, we also have some real practical implications,” McCaskill argued Thursday during the final floor debate.

McCaskill also tried to undercut Gillibrand through an alternative bill that would eliminate the “good soldier” legal defense from military evidence rules unless a defendant’s military character is directly tied to the alleged crime.

The bill gave senators a chance to back something substantive on sexual assault, without going as far as Gillibrand wanted.

Case in point: Sen. Jim Risch (R-Idaho), who told POLITICO on Thursday, “I’m going to do whatever I can to get to the McCaskill vote and support that.”

Passage of McCaskill’s alternative was never in question. Gillibrand even came out in support of it when it was first introduced.

And sure enough, the procedural vote to advance McCaskill’s bill Thursday was 100-0, though a vote on final passage was delayed until Monday as senators bolted the Capitol for a three-day weekend.