U.S. Representative George Miller, Democrat of California's 7th Congressional District, is the Chair of the House Committee on Education and Labor, and a supporter of H.R. 3017, the Employment Non-Discrimination Act. He will be presiding over the mark up of the ENDA bill this Wednesday at 10 am. You can view it as the Committee's website (see Live Webcast on the top right).
"Markup" is a meeting of the Committee to consider whether the bill should be reported back to the House floor for a vote of the full House. The markup will involve the full Committee, consisting of 47 voting members. Amendments are likely to be made at that hearing, some friendly, some not so much. There are 27 definite yes votes for ENDA on the Committee, which is a majority, so the bill expected to pass the Committee. You can see the positions of each of the Committee members here.
Once a bill is reported back to the House, it is given a number and will normally be considered when all the bills reported out before it have been considered. That could take a while. However, the House has a procedure to consider bills out of turn when it is important to the leadership. The Committee on Rules can issue a special resolution to permit this. The rules for getting the bill to the House floor for a vote via this mechanism are complex, but the bottom line is that the House could vote on the measure by Thanksgiving.
But ENDA could also be left until February, as recent comments by Congressman Frank suggest. I have also heard from someone in the know that the Senate may be in no rush to consider the bill, and might also be in slowdown mode, with markup in March and a vote in June.
That would put the ENDA Senate vote in the midst of midterm election campaigns, making support of the measure into a vulnerability for Senators up for re-election. The fragile coalition-building that has been going on in the Senate with the more conservative members of Congress is more likely to collapse in the heat of a likely-to-be very dirty, mudslinging election in which the Republicans struggle to gain a toehold in the most conservative parts of the country. That would increase the chances of ENDA dying in the Senate.
What will control the timing here, and how can we make it sooner, rather than later?
Is The Timing Really That Important?
I see urgency in getting an ENDA vote quickly, but some have counseled me not to worry about this, as ENDA is still on track and moving forward. "When" doesn't matter so much, they say. Support for ENDA, whether now or later, could be problematic for conservative Senators even though they and many of their constituents favor job equality. Someone can always raise the fact that they supported it, whether now or later. So it makes no difference whether ENDA comes to the Senate early in the New Year or late, see?
This questionable logic ignores the pressures of an election campaign. If a Senator supported a bill that passed months ago, and it is mentioned as one of a number of things in an election campaign, that is one thing. But if the bill is up for a vote during the election campaign, it is quite another, because opponents can ride the crest of the wave of media publicity that always surrounds an upcoming and recent vote. It magnifies the effect of the opposition tenfold and makes it tempting for the Senator not to raise his or her head over the other trees on that issue. It's the difference between a picture of a surfer far in the distance waiting for the wave, and the picture of the surfer triumphantly riding in on a huge wave. One is far more likely than the other to make it to the front page of Surfer Monthly.
Republicans will attempt to tar-and-feather Senators who support ENDA, as favoring the hiring of pedophiles as ministers and Boy Scout leaders. It doesn't matter that it's not true. What matters is that, during a violently-contested election season, Senators up for election will shy away from supporting this bill.
Who's Going For A Ride in the Re-Election Tilt-A-Whirl?
I think it significant that Senator Harry Reid of Nevada, the Senate majority leader, will be up for re-election in 2010. It has been said that Senator Reid is one of the most vulnerable Democratic incumbents in the 2010 Senate elections, though whether that is true I am hardly qualified to assess. But it does suggest that he will need to be especially careful with sensitive political issues. Now, Senator Reid is on record as saying that he is fully committed to passing ENDA out of the Senate. I believe him. But even though we have 56 likely yes votes now, getting those last 4 votes and keeping the other 56 in line is a labor worthy of Hercules. It's going to be nearly impossible to pull off in the throes of an election campaign.
Here's some other Senators who will be up for election in 2010. How much are they going to want to be saddled with ENDA during an election campaign?
- Blanche Lincoln, Democrat of Arkansas, who has already indicated non-support, though she has recently tentatively disavowed it in private
- Evan Bayh, Democrat of Indiana, who has kept entirely mum on the subject, but who is expected to vote for the bill
- Byron Dorgan, Democrat of North Dakota, who has also kept entirely mum on the subject, and who is considered a possible supporter.
- Lisa Murkowski, Republican of Alaska, who has likewise not said anything about the bill, but who voted against the Republican filibuster of the hate crimes bill, and who is considered a possible supporter.
Think of these Senators cool and relaxed by a merry fire after New Year's, ready to come back to work with enthusiasm, presented with a nice dish of fresh steaming ENDA for dinner. Then think of them, hot and sweaty after a brusing Spring full of attack and counter-attack, presented with a large dish of over-ripe boiled ENDA to gulp down, along with a large side of wilted DADT. Which of these scenarios do you think is more likely to result in sending ENDA to President Obama's desk?
This is why Rep. Frank's surprise announcement that the House vote might be put off until February is somewhat problematic. Rep. Frank had previously said there would be House vote by December. Reps. Baldwin and Polis also thought it could pass the House and Senate by December. It also scares me that I've heard that the Senate might not mark up the bill until March, and put off a vote until June.
What Are Our Political Leaders Waiting For?
Despite my desire to move forward on ENDA, I must admit that our political leaders do need to be careful in the timing of the votes. Too early could cause a loss of momentum if the Senate won't be ready to vote on it soon.
The leaders of the House will look to the Senate to decide when to bring the bill to the floor of the House for a vote. If the Senate doesn't have enough votes, then rushing the bill to the House floor means the bill will have to languish for months in the Senate while support hopefully builds. But will support build in the Senate at the same time that health reform consumes that legislative body? Or will it diminish? Will there be any momentum left by June 2010? I do realize that support takes time to build, but we are 4 votes away in the Senate right now. Seems to me that a little pressure in the right places could get us there very soon. I'm not sure time is our friend on that one.
Another negative factor is the recent pressure being put on the leadership by the DNC boycott, that pressure may translate into delaying ENDA, and putting forward some other bill more likely to pass the Senate. The competition for ENDA is the Domestic Partner Benefits and Obligations bill (DPBO). It is less controversial than the comprehensive ENDA bill, as it affects only federal workers, and may be easier for conservative Senators to shrug off at home.
What would it take to get House leaders to schedule an ENDA vote?
The answer is quite simple: Enough visible support in the Senate.
Does ENDA have enough votes to pass the Senate? It's close. I calculate there are 56 likely yes votes, which is 4 short of the 60 needed to overcome the Republican filibuster. Can we get four Senators to indicate support in the next week, so the House leadership can have enough confidence to put ENDA to a vote?
If there were enough visible support in the Senate, that could get the Senate Health, Education, Labor and Pensions Committee to report the bill out to the Senate. That would encourage the House to move forward.
What could get the Senate HELP Committee to report the bill out to the Senate? The answer is simple.
Seeing 60 Senators visibly supporting ENDA.
We have 56. We need 4 more. Where can we get 4 more?
Click Here To Email 9 Unconfirmed Senators
Here is my list of the Senators that need some persuasion to step forward. I encourage you to call them, but I also think this is the time for progressive leaders to step forward to encourage them, publicly or privately, to come out in support of the bill. Sometimes Senators need encouragement from their leaders. This is such a time. President Obama, we've been calling these Senators for months. I think it might be time for you to make a few phone calls, too. Senator Reid, I think it might be time for you to get on the horn as well.
Here's who you should be calling:
There are the Senators whom I believe to be possible supporters, but who are unconfirmed. These are Senators Murkowski, Pryor, Lincoln, Bill Nelson, Lugar, Hagan, Conrad, Voinovich and Byrd.
Specific info on their positions can be found here.
Here are their email links and other contact information: http://bit.ly/45WGMc
Me? Why me?
The game is to get them to co-sponsor the bill, or at least to publicly state that they will support the bill. The players consist of you, reading public, whether you be Presidents, Majority Leaders of the Senate, or concerned citizens. The way to do this is to call them, write them, meet with them, send them flowers, whatever, until they speak up with their support. It's a numbers game.
Not only do you have to call, write and send flowers -- you have to get your social networks to do it too. Make your calls. Get the word out. Talk to your friends about calling these Senators. It doesn't take long. Stand up for yourselves.
I'm not sure whether we have sufficient commitment as a community to ENDA to get that done in a timely fashion. Our attention is split by a dozen different issues, and not everyone feels the need for a non-discrimination bill, particularly gays and lesbians in more liberal parts of the country, where discrimination is not as much of an issue for them and their friends.
I'm working at full tilt to lobby Senators, as are others, but there are still too few, too few. We need more people talking about ENDA and getting their friends to lobby these Senators. Especially in their home states. But the problem is that those states -- among them Alaska, Arkansas, Indiana, North Carolina, North Dakota, Ohio, and West Virginia -- the statewide organizations are in disarray and have not been able to bring sufficient pressure to obtain commitments from their Senators. The nationwide organizations don't have sufficient contacts on the ground to make it happen.
I hope we do it, but only time will tell.
Note: Turns out the House is not in session next week. They'll be back the following week.