The Senate held hearings to a nearly empty Committee chamber last week regarding the Employment Non-Discrimination Act. Only five Senators showed up, all Democrats, including the Chair of the Committee, Senator Harkin, the lead sponsor, Senator Merkley, and three other Senators, Senators Franken, Casey and Bennet. It left me with some fundamental questions about the process.
There was a stark difference between the House hearings, held in September, and the Senate hearings. The House testimony took a broad approach, full of stories by LGBT employees and statistics regarding discrimination, as well as discussions about various potential objections to the bill. The Senate hearing, to the contrary, was more narrowly focused on business and religious objections to the bill. There was one gay witness and no transgender witnesses. There were two government witnesses, a law prof, one witness from industry, and two witnesses who presented objections to the bill.
The question I have been asking myself is: Why did the Senate hearing look like this? Is it indicative of lack of interest in the bill by the Senate? Was it a sign that ENDA is going down in flames? Does the Senate care so little for transgender people that they included no transgender witnesses?
The answer to these questions are clearly no, no and no. The Senate hearing, to the contrary, upon reflection, showed a great deal of thought and care about ENDA. It showed that the people planning this hearing understand the political process intimately, and are doing everything in their power to pass ENDA, including the gender identity protections that will protect transgender employees.
It must be remembered that most of the Senate is on board with ENDA. Most of the Senate does not need to be convinced to vote for ENDA. If it were a simple majority vote, we would have ENDA, no problem. The problem is going to be the filibuster, which requires 60 votes.
So why was the hearing so sparsely attended, and why was the range of witnesses so narrow? Why was there only one gay witness and no transgender witnesses? I was a little disturbed by that at first. But I have come to the conclusion that the Senate hearing was actually very cleverly designed and orchestrated. It was very specifically targeted by some very smart people to appeal, not to the public, not to millions of viewers, but to 4 people.
According to my calculations, there are 56 likely yes votes according to my calculations. We need 4 more votes to overcome a filibuster. This entire hearing was designed to show the facts necessary to get those four to sign on to ENDA.
When I say the hearing was designed to appeal to 4 Senators, I don't mean that there are only 4 more Senators who might potentially sign on to ENDA. In fact, there are 8 Senators who may wind up supporting ENDA, but we need at least 4 to overcome the Republican filibuster.
Who are these eight? They are pictured here. They haven't said much of anything about ENDA, except that they're undecided. Other than that, they have been pretty quiet. Do you know their faces? You should. These are the Senators who are on the fence. From left to right, top to bottom, these are Senators Pryor, Byrd, Hagan, Bill Nelson, Murkowski, Lugar, Voinovich and Conrad.
And what are these Senators' major objections? There are basically two:
1) Business objections - it may cost businesses, especially small businesses.
2) Religious freedom - it may require churches and religious schools to hire people who offend their religious principles.
These are not the Senators who are violently against LGBT people - such conservative Senators are a lost cause. The Senators targeted by the hearing need ammunition to understand the very narrow objections regarding businesses and religious freedom.
By the same token, it's not surprising that they did not show up for the hearing. Firstly, only two of them are members of the Senate HELP Committee, so only two of them really could show up: Senators Murkowski and Hagan. Both are in very conservative districts. Both are known to be fair-minded about LGBT issues, and probably supportive of ENDA. But they, like the others i mentioned, are in moderately conservative districts, and the major objections there are the business objection and the religious freedom objection. If you can overcome those objections, you can bring those Senators on board.
That's why the Senate hearings were very, very smart. Time and again, the hearing turned to discussions of how only a few lawsuits had been brought based on similar state laws, how businesses, in fact, profited from diversity and "bringing your whole self to work," how almost no religious organizations had lawsuits against them, and how major religious organizations supported the religious exemption included in ENDA. Senator Franken was merciless in returning fire at the witnesses who questioned the religious exemption, and bringing the issue back there, over and over again, to the extent that he apologized for taking up the Committee's time.
My guess is that Senator Franken didn't just randomly show up and decided to ask a few questions. He was clearly prepared, and, despite his protests that he is not a lawyer, understood with devastating clarity exactly how the religious exemption worked. He fumfered a little over the questions, but I am prepared to completely forgive this, for in the end, he made the point well that the religious exemption in ENDA works differently from the religious exemption in Title VII. The ENDA exemption removes religious organizations entirely from the effect of the bill, whereas the Title VII exemption only gives religious organizations a pass on discrimination based on religious differences. The witness against ENDA on that point, Craig Parshall, tried to obfuscate and Senator Franken nailed him to the wall. The objections based on alleged harm to small businesses was rebutted by testimony about the very small number of lawsuits in states with ENDA-type laws. I'm surprised the small business exemption in the bill and the recent GAO report wasn't discussed more. You can read more about that here.
Go Senator Al! Here's the You Tube of Senator Franken. The part I refer to starts at 4:00.