The Cruelty of Politics in an Election Year

With a few months remaining in the 112th Congress — and a few weeks until lawmakers adjourn for August recess — advocates say the chances for advancing any pro-LGBT legislation even in the Democratic-controlled Senate are slim — at least before Election Day.

Michael Cole-Schwartz, spokesperson for the Human Rights Campaign, expressed the sentiment that progress on pro-LGBT bills is unlikely in Congress anytime soon.

"Obviously the calendar is tight with only seven legislative weeks between now and the election," Cole-Schwartz said. "Further, as summer rolls on, it begins to get harder and harder to get much done on Capitol Hill."

Still, Cole-Schwartz said HRC will look to see what could be accomplished in the lame duck session and push to include LGBT provisions in any major tax bill or other omnibus spending package that comes to the floor.

Few had expected pro-LGBT legislation to move through the House while Republicans remain in control of the chamber, although some progress was made on bills in the Senate — including the Employment Non-Discrimination Act, the Domestic Partnership Benefits & Obligations Act, and the Respect for Marriage Act — leading to hopes that more progress could be made in at least one chamber of Congress.

On ENDA, which would bar job discrimination against LGBT people in the workplace, the Senate Health, Education, Labor & Pensions Committee held a historic hearing last month featuring the first-ever testimony from an openly transgender person before the Senate. Earlier in the Congress, the DPBO bill, which would extend health and pension benefits to partners of federal workers, and the RMA, which would repeal the Defense of Marriage Act, were reported out of their respective committees of jurisdiction.

But even these bills may not advance. A Senate Democratic aide, speaking on condition of anonymity, said it was unlikely that Senate Majority Leader Harry Reid (D-Nev.) would schedule time for votes on these bills before Election Day, but left the door open for the possibility of them being tacked on to larger legislation coming to the floor.

"There is very little chance that any of these bills will be voted on in the Senate — as freestanding legislation – before the end of 2012," the aide said. "However, it's possible that one of the first three listed could be pushed by their sponsors as an amendment to another bill."

A spokesperson for Reid's office didn't respond to a request for comment on whether floor time would be scheduled for any pending pro-LGBT legislation for the remainder of this Congress.

Progress on one measure, the reauthorization of the Elementary & Secondary Education Act, which was intended as a vehicle for pro-LGBT legislation, has apparently reached an impasse. Sen. Al Franken (D-Minn.), the sponsor of the Student Non-Discrimination Act, and Sen. Bob Casey (D-Pa.), had pledged to offer their anti-bullying bills as amendments to ESEA reauthorization when it came to the floor.

Cole-Schwartz said ESEA reauthorization "has stalled and is not expected to move further this year," but advocates are looking for other options on the anti-bullying bills.

"While we had hoped it to be a vehicle for LGBT-inclusive schools legislation, we are working with allies to identify other options," Cole-Schwartz said.

Shawn Gaylord, director of public policy for the Gay, Lesbian & Straight Education Network, or GLSEN, echoed the sentiment that negotiations on ESEA reauthorization have stalled and "the general consensus in the education community is that any movement within this Congress is unlikely."

"ESEA is the vehicle that will most likely move both the Safe Schools Improvement Act and Student Non Discrimination Act," Gaylord said. "However, without any momentum for reauthorization, it's unlikely that either of those bills will reach the floor of the House or Senate. GLSEN is continuing to build support for the bills among members so that we're in a stronger position if ESEA moves in the next Congress."

It's on ENDA where advocates are still optimistic about the prospects of at least a markup for the legislation — although the proper strategy for advancing the bill is in dispute among some groups.

LGBT advocates have been calling for a markup of ENDA for months at the same time they previously called for a Senate hearing on the legislation. Cole-Schwartz said HRC is "pushing hard to have an ENDA markup in the HELP committee" as a follow-up to the hearing.

A spokesperson for the HELP committee, which is chaired by Sen. Tom Harkin (D-Iowa), didn't respond to a request for comment on any updates to plans to hold a markup on ENDA.

Tico Almeida, president of Freedom to Work, has been pushing for a Senate floor vote on ENDA this summer regardless of whether or not the committee first holds a markup of the legislation. While acknowledging the chances of a vote before August recess remain slim, Almeida said a floor vote on ENDA before the end of this year could still happen.

"I think there is a real possibility that ENDA will get a full Senate vote in September or in a lame duck [session], if LGBT groups make a strong effort to push for that," Almeida said. "We are fortunate that Sen. [Mark] Kirk and Sen. [Jeff] Merkley are strongly pushing for it, and I think Sen. Harkin's committee staff is very engaged in determining how to most strategically move the bill forward and that might mean skipping markup and going straight to the floor."

Almeida said the timing of this vote demonstrates there should no problem holding a vote on the legislation before Election Day and Reid can live up to his promise in 2009 that a Senate vote on ENDA can happen soon.

"ENDA's first and only full Senate vote was in September 1996 — just weeks before a presidential election — so nobody should use this year's election as an excuse to further delay a vote that Senator Reid promised three years ago would be coming 'soon,'" Almeida said. "Voters deserve to know whether our representatives support LGBT Americans' freedom to work without discrimination. By bringing ENDA to the floor before the election, voters in key Senate races in places like Massachusetts and Nevada will finally learn where Senators [Scott] Brown and [Dean] Heller stand."

But other groups are saying the markup needs to happen before the floor vote. HRC's Cole-Schwartz said "a successful markup is an important step" on ENDA as part of the strategy for the bill, which includes securing 60 votes beforehand to avoid a filibuster and achieving a successful vote.

"Building a strong legislative history for any piece of legislation is important," Cole-Schwartz said. "Given that neither the House nor the Senate has ever marked up the inclusive bill, we believe a markup has two major benefits: one, it removes a procedural objection that some senators would likely use to object to floor consideration and two, it creates a more complete and solid legislative record should the law ever be challenged in court."

Almeida insisted that any technical changes that are necessary for ENDA can be done on the Senate floor and the legislation — such as "Don't Ask, Don't Tell" repeal — has gone to the Senate floor prior to markup.

"Senate rules allow a bill to skip markup, and it may be the most strategic thing to go directly to the floor," Almeida said. "Freedom to Work would support that strategic option, if that's what Harkin, Merkley and Kirk think is best."

Source: Washington Blade