With one sentence, U.S. Senate Majority Leader Harry Reid promised, during his remarks on the floor Monday, that he will bring the Employment Non-Discrimination Act to the Senate floor during the current Senate work period.
Reid wasn't specific about the timing, but most believe that it will be in the next few weeks. It also appears now that 60 senators support the bill and, presumably, will vote against any effort to block it from a floor vote.
But passage in the Senate doesn't guarantee even a vote in the House, and promising buzz in previous fall sessions has produced nothing. In 2009, for instance, when Democrats dominated both chambers, then Rep. Barney Frank (D-Mass.) said ENDA would likely get a House committee vote in September and a floor vote that fall. It didn't. Three months later, in December 2009, then Reps. Tammy Baldwin (D-Wisc.) and Jared Polis (D-Colo.) told a gathering of gay leaders that ENDA would pass the House in January. It didn't.
And the partisan fights that were clogging up the works in the fall of 2009 —with debates over the Affordable Care Act— haven't gotten better, they've gotten worse and they're still over the Affordable Care Act. And now, Republicans control the House.
In 2009, the House bill had 204 original co-sponsors; the current House bill (H.R. 1755) has 186. In 2009, the Senate bill had 46 co-sponsors; today, S. 815 has 55. (The current docket shows 55, but has not yet been updated. The list includes both Ed Markey and interim senator (William Cowan) whom Markey replaced. It also includes the late Senator Frank Lautenberg (D-NJ), but his co-sponsorship will almost certainly be carried on by Senator Cory Booker recently elected to fill out Lautenberg's term. The list also lacks the name of Bill Nelson (D-Fla.) who just signed on yesterday.)
In 2009, Senate Democrats held 59 votes; today, they have 55. But, in addition to the 54 co-sponsors, two Republicans who voted for the bill in committee are expected to do so on the floor, a third Republican (Rob Portman of Ohio, who has a gay son) said this week he is "inclined" to vote for ENDA, and three Democrats (Nelson of Florida, Joe Manchin of West Virginia, and Mark Pryor of Arkansas) said this week they'll vote for ENDA. That adds up to 60.
In 2009, the House Democrats had 256 votes; today, they have 201.
In 2009, the chief House sponsor, Barney Frank, had 28 years of seniority to put behind ENDA. Today's chief House sponsor, Rep. Jared Polis (D-Colo.), has four.
While ENDA left the Senate committee with all Democrats plus three Republican votes behind it, it sits before three Republican-dominated House committees unmoved since April, except for being referred to a subcommittee. As the Congressional bill summary quietly notes, the bill will sit before these committees "for a period to be subsequently determined by the Speaker."
That Speaker, of course, is Republican John Boehner (R-Ohio), who has just been raked through the coals in a painful budget battle over the debt ceiling and shutdown of the government. That's a battle that is almost certain to resume in December, when a House-Senate conference committee tries again to come up with a budget.
Until August 25, 2009, the Senate's chief sponsor was Ted Kennedy, a highly respected champion with 47 years seniority. Today's chief Senate sponsor is Senator Jeff Merkley (D-Ore.), who has been in the Senate since 2009.
Still, the Senate is where ENDA's best chances for any show of success exist. The bill passed the Senate Committee on Health, Education, Labor and Pensions in September and was placed on the Senate legislative calendar in early September.
ENDA seeks to prohibit employers from making adverse employment decisions against employees or potential on the basis of their perceived or actual sexual orientation or gender identity. It has broad and strong support in the LGBT political community.
No one who supports the measure is conceding the House. Some believe the dramatic upward trend in the population towards support for allowing same-sex couples to marry has created some momentum and motive for reluctant Republicans to consider supporting ENDA. But that would still, most likely, require bucking their leadership. And Speaker John Boehner said just last year that he thinks "There are ample laws already in place" to deal with workplace discrimination.
Why not wait, hope, and push for Democrats to take back the House in the 2014 elections?
"I've seen that thinking followed in past and leading to disastrous results," said Log Cabin Republican national Executive Director Gregory Angelo.
"Republicans are going to be controlling House for a while and if the sole strategy is flipping the chamber, good luck with that," said Angelo. Besides, there's room for hope.
"Earlier this year, the GOP House for the first time in history, passed the Violence Against Women Act that included LGBT people," said Angelo. "It passed with 87 Republicans because House leaders let members vote their conscience. I'm not Pollyannaish, but I see a definite opportunity to pass ENDA with a significant number of GOP votes."
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