ENDA, the Employee Non-Discrimination Act, a bill which would outlaw discrimination in the workplace against gays, lesbians, bisexuals and transgenders, is dying. What was once a centerpiece of LGBT equal rights and progressives, a part of the Dem party platform, and a bill which President Obama, Nancy Pelosi and Harry Reid have repeatedly stated they wants passed, will likely soon be a failed footnote of the 111th Congress.
The writing is already on the wall.
"The September schedule, no matter how you look at it, is going to be extraordinarily full", said Sen. Ted Kaufman (D-Del.). "There’s a lot of stuff that’s been pushed off."
Over the jump for analysis and what you can do about it.
It is unlikely our dysfunctional Senate will have time to consider ENDA:
The US Senate will return from recess on September 13th, adjourning October 8th. From past experience we know that this is barely enough time for each Senator to sneeze, let alone vote on whether to end debate on whether to begin debate on ENDA, as would be required by our 60-votes-for-everything Senate. Not to mention the time required to attempt to overcome a Republican filibuster of a small-business jobs bill, and a threatened filibuster of the National Defense Authorization Act, the bill that contains the language that may one day result in Don't Ask Don't Tell being no more (do not call it repeal, for repeal it most certainly is not). Let's not even think about the time it would consume to consider the myriad nominees Obama has proposed and which the Senate has yet to confirm.
The Senate will then leave for the November elections, to return for a short, chopped up lame-duck session, wherein the entire Washington establishment will have been whipped up into an all-encompassing lather over whether or not to extend the Bush tax cuts, and for whom. To assume that anything else of significance will pass the Senate during that time is, if not folly, at best an indication of wild, unsupportable optimism.
The new 2011, still dysfunctional Senate will not be able to pass ENDA:
And then in 2011 a new Senate will appear. A Senate which, if it still retains a Democratic majority at all will, almost everyone agrees, have significantly fewer Democrats. Which means more Republicans (and maybe a Crist). Which means 60 votes for ENDA in the next Congress is a slam-dunk impossibility.
As for the House: it is almost irrelevant what the House does with respect to ENDA. If ENDA cannot get through the Senate, then it cannot become law. And if ENDA is not taken up by the Senate, it cannot be passed by the Senate. ENDA will pass the House if the Senate passes it, or Pelosi isn't the same Speaker she was in March 2010 when she promised health care reform would pass, and has said she has no intention of losing either (referring to DADT and ENDA votes in the House)
(You can read more about how the House feels about the Senate regarding ENDA, and the status of ENDA in the House, in this diary.)
And so by far the most likely prospect for ENDA is that it dies a slow, barely noticed death on the agenda cutting-room floor of the Senate. Except for a few GETEQUAL protestors, a few LGBT bloggers and those of you of the 'professional left' who as we know want to torture the White House, there will be raised barely a whimper.
So is there any hope?
Somewhere between slim and almost none.
The slim part:
If Harry Reid were convinced that there were 60 votes for cloture (there are already 51 votes for passage), it is at least conceivable that he would bring the bill to the floor before the end of 2010. Right now no one has the faintest idea whether there are 60 votes for cloture. There are enough possible votes for cloture, but whether these 'possible' Senators can be pinned down and/or whether anyone will make an effort to do so is an open question. Consider:
At a meeting at the White House with LGBT representatives from state equality organizations
Tina Tchen, director of the White House Office of Public Engagement ... said ...
In the current political climate, securing a firm commitment of 60 Senate votes to support ENDA is proving far more difficult than the administration anticipated.
Tim Kaine, Chairman of the Democratic National Committee, recently said in a video directed at the LGBT community:
"So I promise you, we're going to do everything in our power to pass the Employee Non-Discrimination Act." (About 3:00 minutes in)
But the fact of the matter is no one believes him. Or else his organization has no power. If all but one Democrat in the Senate voted for ENDA it would pass, because there are at least two Republican supporters (Snowe and Collins). This is not something that can be pinned on Republican obstructionism. It's far past time for put up or shut up from the Democratic Party and its Chairman; spouting vacuous promises only furthers the stewing anger.
The almost none part:
Getting ENDA passed in the next Congress involves a trifecta: three events, all of which have to happen:
- At the beginning of the next Congress, filibuster reform sufficient to ensure that 51 votes can eventually pass legislation would have to pass the Senate.
- The new Senate would have to remain sufficiently Democratic and progressive so that 50 votes remained for ENDA.
- The House of Representatives would need to remain in Democratic hands, again with enough votes to pass ENDA.
While none of these three things is impossible, the likelihood of all three occurring at the same time is none too high.
The bottom line:
Other than these two slim threads of hope, we are not looking at passage of a bill that
- promotes fundamental American values not to be discriminated against
- most Americans already believe is the law, and
- at least 70%, and probably more, of the American population supports.
At least not until 2013, and quite possibly later or even never. We never did get an Equal Rights Amendment. ENDA could suffer the same fate. Or are you willing to do something?
What you can do:
Here's contact information for the 'ENDA 11' -- the eleven Senators who are on the fence about supporting ENDA (Pryor, Carper, Nelson (FL), Bayh, Hagan, Conrad, Johnson, Rockefeller, Goodwin, Voinovich, and Murkowski) , along with two others who could conceivably be swayed (Brown (MA) and Lincoln). If you live in any one of these Senators' states, call them up and ask them for a statement of support, if not for ENDA itself, then for a cloture vote. And do what you can to support filibuster reform, or expect no progressive bills of any consequence to pass the US Senate in the next two years, no matter what the topic.
Contact information for the ENDA Eleven and Long Shots:
MARK PRYOR, ARKANSAS
The River Market, 500 Clinton Ave Ste 401, Little Rock, AR 72201
BLANCHE LINCOLN, ARKANSAS
501-375-2993 870-382-1023 870-910-6896 479-251-1224
912 West Fourth Street, Little Rock, AR 72201
TOM CARPER, DELAWARE
302-573-6291 302-674-3308 302-856-7690
301 North Walnut Street Suite 102L-1, Wilmington, DE 19801
BILL NELSON, FLORIDA
1-888-671-4091 305-536-5999 813-225-7040 850-942-8415
US Court House Annex 111, North Adams Street, Tallahassee, Florida 32301
EVAN BAYH, INDIANA
317-554-0750 812-465-6500 260-426-3151 219-852-2763
1650 Market Tower, 10 West Market St., Indianapolis, IN 46204
KAY HAGAN, NORTH CAROLINA
1-877-852-9462 336-333-5311 919-856-4630 704-334-2448
701 Green Valley Rd, Suite 201, Greensboro, NC 27408
KENT CONRAD, NORTH DAKOTA
701-258-4648 701-852-0703 701-775-9601
U.S. Federal Building, Room 228, 220 East Rosser Avenue, Bismarck, ND 58501
TIM JOHNSON, SOUTH DAKOTA
605-226-3440 605-332-8896 605-341-3990
405 E. Omaha St., Suite B, Rapid City, SD 57701
JAY ROCKEFELLER, WEST VIRGINIA
304-253-9704 304-347-5372 304-367-0122 304-262-9285
405 Capitol Street Suite 508, Charleston, WV 25301-1749
CARTE GOODWIN, WEST VIRGINIA
304-367-0122, 304-262-9285, 304-347-5372
188 Russell Senate Office Building, Washington, D.C. 20510-4801
SCOTT BROWN, MASSACHUSETTS
2400 JFK Federal Bldg, Boston, MA 02203
GEORGE VOINOVICH, OHIO
216-522-7095, 513-684-3265, 419-259-3895
1240 East 9th Street, Room 3061, Cleveland, OH 44199
LISA MURKOWSKI, ALASKA
101 12th Ave, Room 216, Fairbanks, AK 99701