Will Byrd's Successor Back DADT?

As soon as news came early Monday morning that Democratic West Virginia senator Robert Byrd, the longest serving U.S. senator, had passed away at the age of 92, speculation immediately ensued about who his successor would be and how that would affect a host of legislative items.

Democratic governor Joe Manchin III is expected to move quickly to appoint a Democrat to the post. The West Virginia secretary of state announced that the election to replace Byrd would not be held until November 2012.

"Don't ask, don't tell" is the most immediate LGBT concern, since the National Defense Authorization Act, to which it is attached still awaits a vote on the Senate floor. Byrd was one of 16 members of the Senate Armed Services Committee who voted to attach the measure to the defense funding bill. The senator also negotiated a provision that allows the Senate an extra 60 days to review implementation of repeal once it is certified by the president, the secretary of Defense, and the chairman of the Joint Chiefs of Staff.

"Obviously, his successor continuing to support the repeal of 'don't ask, don't tell' when it comes before the full Senate is certainly important to the outcome," said Fred Sainz, vice president of communications for the Human Rights Campaign.

Stephen Skinner, president of the board of Fairness West Virginia, the statewide LGBT equality group, went a step further than Sainz.

"I expect that person to honor Senator Byrd's commitment to repeal," he said, adding that the joint lobbying campaign that Fairness West Virginia and HRC undertook on "don't ask, don't tell" got "a really great reception" across the state. "His willingness to vote for repeal was a signal to leaders in West Virginia that it is OK to be in favor of protecting LGBT West Virginians -- no one should underestimate the impact of what Senator Byrd signaled with that vote."

Skinner said that although some political observers outside the state have already started speculating about Byrd's successor, people in the state are still mourning their loss.

"Everybody has got to understand outside of this state how beloved Senator Byrd is," he said. "You might expect there would be a lot of chatter today, but there's not, and the reason there's not is because we've lost a limb."

But Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said time was of the essence in terms of filling Byrd's seat.

"That individual, whoever he or she is, if they are sworn in by July 12, when the Senate returns from recess, would have a significant impact on key 'don't ask, don't tell' votes," he said.

Those votes include the 60 senators that may be needed to overcome a potential filibuster of the defense authorization bill, or the 51 necessary to defeat any poison-pill amendments that could either kill or significantly alter the repeal measure.

Sen. Carl Levin, chairman of the Senate Armed Services Committee, is pushing to take up the defense funding bill early in the week of July 12, according to Sarvis. Completing the vote before the August recess would be ideal so that the House and Senate committees can "conference" -- or reconcile -- the two versions of the legislation before sending it back to both chambers for a final vote. Reconciling the bills to produce the final version known as a "conference report" is a process that takes several weeks.

Sarvis would like to the see the Senate floor vote move forward as quickly as possible in order to avoid a vote on the final version during a "lame-duck" session -- the period following the November midterm election but before the new Congress members are sworn into the 112th Congress in January.

Based on the Senate calendar, the key windows for a Senate floor vote are now mid July, late September, and early October.

"If it doesn't get considered by the Senate in October, we have a major problem," said Sarvis of the possibility that the vote might be pushed into a lame-duck session.

But even if the vote comes in July, Sarvis still sees "a strong likelihood" that the final version of the legislation won't be voted on until December, the same month the Pentagon working group is scheduled to issue the results of its study of repeal.

While some repeal advocates hope the Pentagon's review might help sway certain moderates and conservatives to vote for repeal, others fear that opponents of repeal might seize on portions of the report as leverage to help push for renegotiating the language of the repeal measure.

That would put Senator Levin at a disadvantage since he is the only one of the four conferees who supports repeal. His counterpart from the House Armed Services Committee, Rep. Ike Skelton, and ranking GOP member Rep. Buck McKeon both oppose repeal, as does the ranking member of the Senate Armed Services Committee, Sen. John McCain.

Sarvis explained that if the Senate passes the same repeal measure that the House passed, the "don't ask, don't tell" provision in the bill should not be an issue that is negotiated in conference. But if the repeal language passed by the Senate varies from the House's, those who are against repeal could try to alter the language in conference using the newly released Pentagon study as justification.