Congressional offices are closed today for Veterans Day, so we can take a break from calling our Senators. As you know, we have been working on moving the Employment Non-Discrimination Act in the U.S. Senate, where the real fight is expected to take place. We are missing 4 votes in the Senate, but the House is considered by insiders to have a solid grip on ENDA.
If hints of rumors that I'm getting are good indicators, however, then their grip may be slipping, just a tiny bit. I have heard from D.C. insiders that some of the more conservative House Democrats are beginning to raise concerns about ENDA. The right-ward shift indicated by the New Jersey and Virginia gubernatorial races and the Maine vote makes them nervous, and they don't want to be forced to vote on controversial legislation. This crisis of confidence is not unexpected, of course, as the same thing happened in 2007. ENDA was considered to have very good chances of passage in 2007, but when crunch time came, first-term Democrats in conservative districts came forward to express their concerns. The device used to mollify them was the removal of gender identity protections from the bill, and the bill then sailed through the House.
Could the same thing happen again? Fortunately not. It would be impossible because Representatives Frank, Baldwin and Polis have emphatically stated that they would not permit that to happen.
Wait....just kidding....these are politicians we're talking about. Of course it could happen again, and from what I'm hearing, we're not moving in a good direction.
Am I misinterpreting? Read on, and you tell me.
What They Were Saying Before Yesterday
After the House hearing in September, I learned from various sources that the next steps were a Senate hearing, and markup in the House, followed by a vote in the House before Thanksgiving. DC insiders were very confident about the House vote, feeling that they would have at least 230 votes for ENDA. I myself was wondering, because I didn't see 230 votes, and was only able to get a read on 214 likely yes votes. I tried to confirm some of those I considered unconfirmed, but I was told that the problem was in the Senate, not the House. The Senate, the Senate, the Senate. Not the House, not the House, not the House.
The timelines I heard were loose, and contingent on health care reform, but the thinking was a Senate hearing the first week in November, and markup in the House the following week. The Senate vote would take place in the New Year, perhaps January or February. Of course, as we get closer to midterm election campaigns, it becomes less and less viable to be pushing controversial bills.
The Senate hearing followed this timeline, but it also raised some eyebrows. While I thought it was very effective in addressing objections of businesses and religious organizations, there were only three Senators in attendance other than the Chair of the Committee and the bill's sponsor. There was only one gay witness and no transgender witnesses. But the testimony of the witnesses was well done, and the performance of Senator Franken gave no quarter to the witnesses who were trying to obfuscate the issues. I was satisfied.
The next thing I heard after the hearing was that markup would take place in two weeks, instead of the following week. I was not surprised because health reform was rightly taking precedence as an issue of tremendous importance. Then came the vote in the House on Saturday night, and the health reform bill was passed. I was glad to hear of the passage, but not glad to hear of the Stupak amendment, which effectively banned any insurance companies from covering abortions. That is outrageous and goes far beyond the current Hyde Amendment, which restricts federal funding for abortions. The conservative Democrats were themselves surprised, I heard, to be able to throw their weight around so effectively. This emboldened them, of course, and changed the thinking in DC about the power of the conservaDems. It didn't help that the margin of passage in the House was 5 votes.
Now that health care reform had moved through the House, in whatever damaged form, we could proceed to ENDA, right? Not right.
What They're Saying Now
Yesterday, I read the following in the Blade:
Progress on ENDA, DP benefits expected
Action on other pro-LGBT legislation seems more imminent. Frank said Congress could advance the Employment Non-Discrimination Act and a bill providing partner benefits to LGBT federal employees in the near future.
And the prospects for passing the Domestic Partnership Benefits & Obligations Act, he said, are the most promising.
"That one I'm the most confident is going to become law because I think you have Senate support for it -- enough to get to the 60" votes needed to overcome a filibuster, Frank said.
Okay, so Rep. Frank is saying that another bill is more likely to pass than ENDA, the Domestic Partnership Benefits & Obligations Act. That bill would provide domestic partnership benefits to federal workers.
Wait, what just happened?
Why is the Domestic Partnership Benefits bill being mentioned in the same breath with ENDA, and not only in the same breath but as being more likely to pass than ENDA?
I have seen this happen before. Time and time again, bills on non-discrimination that would cover transgender people are loudly touted as "the next thing," an argument used to justify ignoring them in favor of other issues favored by more prominent gays, such as marriage, and domestic partnerships. After all, those more prominent gay people are not subjected to discrimination. They live in large, gay-friendly cities. They don't necessarily even know any one of their friends who have been subjected to blatant discrimination. Why get bent out of shape over ENDA? If conservaDems are concerned about ENDA, then no sense pushing it, right? We can always push something easier, like Domestic Partnership Benefits & Obligations Act that will affect only people in DC. That should be easy for the conservaDems to shrug off in their home districts,
You may wondering why I am being so trigger-hair sensitive. All that Representative Frank said is that the domestic partnership bill is doing well. Why should I get upset at that?
The Blade goes on to solidify these remarks.
DPB&O Noses Out ENDA
Here's the Blade again:
Frank, who's sponsoring ENDA in the House, said the bill is "in very good shape" and predicted the House Education & Labor Committee would mark up ENDA before year's end. He noted that a House floor vote is expected to occur no later than February.
February? Did he say House vote in February? Not...before Thanksgiving? Not...before the end of the year?
So wait, let me count....if the House vote takes place in February, and then proceeds to the Senate, which will need some time to do various procedural things before bring it to the Senate floor, that means that the Senate will be considering ENDA right around the time that midterm election campaigns begin.
That's a terrible time to ask the Senate to vote on this. If the conservaDems are nervous now, imagine how they will feel about taking a vote on homosexual rights and having it show up in bold on the news when people are focusing on the elections.
But wait, there's more.
"So I say," Frank said, "the schedule is the federal domestic partner benefits anytime in the next few months, ENDA out of the House in December or in February with the Senate voting in the spring, [and] 'Don't Ask, Don't Tell' part of the military authorization, which means into the summer."
So now, domestic partner benefits have jumped in front of ENDA? And they're going to try to do ENDA around the same time as DADT? How many sponsors does ENDA have in the House? 189. How many for DPBO? 127. ENDA is way ahead of DPBO.
If things happen this way, ENDA supporters are in a LOT of trouble. They have just put ENDA on an ice floe and sent it toward the Bering Straits.
But the Blade follows with words of comfort from Allison Herwitt, legislative director for the Human Rights Campaign.
Herwitt, however, said HRC remains hopeful that a House vote on ENDA could take place before year's end, and that House and Senate committee markups for the Domestic Partnership Benefits & Obligations Act could also happen by that time.
They're "hopeful." Translation: All we've got are hopes. Not facts.
Never one to mince words, Rep. Frank was more blunt.
Still, Frank said there's a question of whether advocates can find 60 votes in the Senate to overcome a filibuster on ENDA and the proposed "Don't Ask, Don't Tell" repeal.
Excuse me, Representative Frank. We've got 42 co-sponsors in the Senate, and 56 likely yes votes in the Senate, and another 8 possibles in the Senate. What have you got on DPBO in the Senate? 24 Co-sponsors. I'm not against DPBO by any means, but saying that it has better chances than ENDA is not based on any evidence I can see.
My DC insider friends are telling me to calm down, there are no indications of an ENDA slow-down. There's not need to panic yet, they say. Why are you going off the deep end?
My answer is 2007.
I will wait to see what I hear tomorrow. Rep. Frank has rightly said in the past that we should spend our time lobbying Representatives and Senators who need lobbying, who are on the fence about ENDA. I have agreed with him wholeheartedly. We have been doing just that.
But if Rep. Frank is going to start saying let's put DPBO in front of ENDA and tack ENDA near a DADT vote, and do it during midterm campaign elections, I say that Rep. Frank, respectfully, you need to rethink that. We may need to start calling you, Rep. Frank, and Rep. Pelosi too, with demands for moving ENDA forward.