LGBT rights supporters are bracing for a freeze on pro-gay legislation in the next two years if — as many pundits predict — Republicans take control of the U.S. House and Democrats have a reduced majority in the Senate.
Patrick Egan, a gay New York University political science professor, said what he sees for outstanding pro-LGBT legislation in the 112th Congress is “not a pretty picture.”
“I would say nothing’s going to happen,” Egan said. “You can see how difficult it was getting any kind of pro-gay legislation out of two houses that were solidly controlled by Democrats, and the picture’s just going to get worse to the extent that Republicans gain power on Capitol Hill.”
Egan said he couldn’t identify which bills — such as the Domestic Partnership Benefits & Obligations Act or the Employment Non-Discrimination Act — have a greater chance of passing than others because he thinks, “the probability of all of them is zero.”
“I’m just so pessimistic about anything moving at all that I actually don’t think that question is very meaningful,” he said.
Michael Cole, a spokesperson for the Human Rights Campaign, drew on the record of Republican control throughout the 1990s and early 2000s in his prediction of what could happen next year.
“We saw what Republican leadership looked like in the House, and that was when we had a Federal Marriage Amendment being debated, it’s when we saw [the Defense of Marriage Act] passed, it’s where we saw a slew of efforts that delayed our progress,” Cole said.
Cole said the possibility of a hostile Congress underscores the need for LGBT rights supporters to work to elect friendly lawmakers during the campaign season.
“I don’t want to be too fatalistic about where things are going to end up because while there’s six weeks until the election, six weeks is a long time, and no one can honestly say they’ll know what’s going to happen,” Cole said.
Still, political experts across the board are predicting that Republicans will achieve enough gains in the U.S. House on Election Day to take a majority in the chamber.
Nate Silver, founder of the FiveThirtyEight blog, estimated last week that Republicans have a 65 percent chance of taking the House. His model projects that Republicans will go from holding 188 seats to approximately 223 seats and give them a narrow majority.
Earlier this month, Cook Political Report on its website also identified Republicans as modest favorites to take control of the House.
“The Cook Political Report’s current outlook is for a Republican net gain of at least 40 seats,” the website states. “A turnover of 39 seats would tip majority status into Republican hands.”
Such an outcome would lead to the retirement of U.S. House Speaker Nancy Pelosi (D-Calif.) and the ascension of House Minority Leader John Boehner (R-Ohio) to her role.
Many Washington insiders are anticipating that House Democrats will be facing bad news on Election Day. At a recent D.C. fundraiser where Pelosi didn’t appear at the expected time, attendees joked that she was delayed because she was trying to get rid of a tape-measure wielding Boehner from her office.
Cole said the possibility of Boehner taking control of the House would be bad news for LGBT people and noted HRC has previously given the minority leader — as well as others in Republican leadership, such as Reps. Eric Cantor (R-Va.) and Mike Pence (R-Ind.) — a “0” on its congressional scorecards.
“These are the people who would be deciding the agenda of what gets to the floor,” Cole said.
Ileana Ros-Lehtinen (R-Fla.), a lawmaker known for her support for the LGBT community and co-sponsor of numerous pro-LGBT bills in Congress, said she’s unsure of what will happen with these bills if her party takes control of the House as she criticized the current Democratic majority for not taking action.
“I don’t know what will happen with Republicans,” she told the Blade last week. “I know what’s happening now. I don’t really get an opportunity to get to vote on those [bills] very often on the floor.”
Ros-Lehtinen was also reluctant to say that she’d be the champion of pro-LGBT legislation under GOP control in the House.
“I think that there are a lot of champions in a bi-partisan way on these issues,” she said. “I would not consider myself a champion of anything, but I’m proud to support the bills. But right now, it’s Democrat control, so you got to ask [U.S. House Speaker] Nancy [Pelosi] what’s up.”
Even with fears and uncertainty about how a GOP-controlled Congress would handle LGBT issues, the Republicans haven’t been emphasizing social issues in their quest to retake Congress.
The House Republicans’ “Pledge to America,” which was unveiled last week, notably has little to do with social issues and instead plays up economic policy.
The pledge has one line saying Republicans will work to defend “traditional marriage.” Other issues, such as “Don’t Ask, Don’t Tell,” aren’t mentioned in the document.
Brian Moulton, HRC’s chief legislative counsel, wrote in a blog posting last week that the document shows LGBT people wouldn’t fare well under a Republican-controlled Congress.
“While the document focuses heavily on economic issues, its ‘pledge’ also includes hostility to LGBT equality, promising support for ‘traditional marriage’ and, in a thinly veiled attack on LGBT advances through legislation and the courts, criticizing actions that ‘thwart the will of the people and overturn their votes and their values,'” Moulton said.
Even under Republican control, options would be available to the Democratic minority to work to pass pro-LGBT legislation.
One possibility would be to pass bills through a discharge petition, a maneuver that could bring legislation that’s bottled up in committee to the House floor. Supporters of pro-LGBT bills in the Democratic minority could find Republican moderates to sign the discharge petition to obtain 218 signatures needed to move forward with the legislation.
But Egan was skeptical about the use of a discharge petition to pass pro-LGBT legislation and said he doesn’t think moderate Republicans would join such an effort.
“The few moderate Republicans who are left are going to be worried about a primary challenge from their right in the cycle,” Egan said. “One of the true ways to invite a primary challenge from your right-wing is to vote for LGBT-friendly legislation.”
As Democrats face dismal prospects in the House, LGBT rights supporters may be able to look to a Democratic-controlled Senate to advance pro-gay legislation.
In the Senate, where only one-third of the seats are up for grabs during any given election cycle, the forecast is better for the Democrats, although Republican gains are still expected.
Silver estimates that Republicans have an 18 percent chance of taking the Senate. Still, his model projects Democrats will go from having 59 seats in the chamber to having an estimated 52.2 seats.
The reduced Democratic majority in the Senate may mean that the 60-vote threshold needed to overcome a filibuster in the chamber could be further out of reach.
Still, Democratic control in the Senate could provide the opportunity of amending larger pieces of legislation with pro-LGBT measures in the chamber in the hopes that such language would survive in conference committee for both chambers to approve and send to the president’s desk.
Such a tactic would be similar to how the Senate in 2000 amended major defense legislation with a hate crimes protections measure as a way forward. The hate crimes measure didn’t become law that year and only made it into the books last year as part of defense legislation signed by President Obama.
But Egan was skeptical about the prospects of being able to move forward with pro-LGBT legislation in the Senate even by amending larger legislation.
“That sort of tactic tends to be blocked by Republican senators who are social conservatives, and I would imagine that would continue to happen in the next session,” Egan said.
Egan said he expects a number of Democratic senators will be replaced after Election Day with “hard-core social conservatives” and said the scenario under which pro-LGBT legislation advances under those circumstances seems “really unlikely.”
With a possible block on pro-LGBT legislation in the upcoming Congress, eyes could be on Obama to make administrative changes beneficial to the LGBT community as opposed to having to rely on enacting legislation.
Matt Foreman, program director for LGBT and immigrant rights at the Haas Jr. Fund, said the Obama administration has at its disposal the means to help the LGBT community regardless of the election results in November.
“There are dozens and dozens of ways in which the Obama administration can continue to change federal policies and practices to improve the response of the federal government to needs of LGBT people,” Foreman said.
Foreman said he thinks advocates often elevate legislation over potential policy changes, such as funding for community centers and anti-violence programs as well as determining how a family is defined in the health care reform and how jobs programs treat LGBT applicants.
“All of those things are incredibly important to people, so I think that even if strong anti-LGBT majorities take control of Congress, there will still be lots and lots of opportunities to make progress within the administration,” Foreman said.