A bipartisan group of nine senators is backing the idea of having the Senate panel with jurisdiction over the Employment Non-Discrimination Act advance the legislation to the floor by a committee vote.
The group is asking for Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor & Pensions Committee, to hold a markup on ENDA in the wake of the panel’s hearing on the legislation last week and the senator’s remarks to the Washington Blade immediately afterward that he wanted “to poll the committee” about moving the bill forward.
In the week after the hearing, the Blade solicited statements from the offices of all 22 members of the Senate panel on whether they want to see the committee move the legislation to the Senate floor. Those who responded affirmatively were spokespersons for Sens. Jeff Merkley (D-Ore.), ENDA’s lead sponsor, as well as Sens. Barbara Mikulski (D-Md.), Patty Murray (D-Wash.), Bernard Sanders (I-Vt.), Bob Casey (D-Pa.), Al Franken (D-Minn.), Michael Bennet (D-Colo.), Richard Blumenthal (D-Conn.) and Mark Kirk (R-Ill.), the only Republican on the panel who responded to the Blade’s inquiry.
All 12 Democrats on the panel — as well as Kirk, an original co-sponsor of the bill — are among the 41 total co-sponsors of ENDA, so the bill should have no trouble moving out of committee. The legislation would bar employers in most situations in the public and private workforce from discriminating against workers because of their sexual orientation or gender identity.
Sanders’ office accompanied his call for a committee vote on ENDA with a statement saying the time is now to pass ENDA to end workforce discrimination against LGBT people.
“As I’ve said many times before, discrimination of any kind is not what America is supposed to be about,” Sanders said. “Yet only 16 states, including my own state of Vermont, and D.C. currently prohibit discrimination based on sexual orientation and gender identity. I will fully support Sen. Merkley and Chairman Harkin in their efforts to move the Employment Non-Discrimination Act out of committee, because no Americans should have to live with the fear of losing their jobs simply because of who they are.”
The support that Murray’s office conveyed to the Blade echoes the sentiment she expressed about moving the legislation forward during the committee hearing last week. Murray was explicit in calling for a markup, saying she wants to see ENDA pass out of committee “expeditiously.” In response, Harkin said, “I hope so.”
But speaking to the Washington Blade after the hearing, Harkin was non-committal about holding a markup, saying he wants to speak with panel members before moving forward.
“I’m going to poll my committee and see,” Harkin said. “Right now, I’m kind of up to here in getting [Food & Drug Administration] bill through, as you know. We got it through the Senate; we’ve got to work with the House on that trying to get that put to bed, and then I’m going to poll the committee and see what we want to do.”
The Senate HELP Committee didn’t respond to a request for comment on the possibility of holding a markup on ENDA. It’s unclear whether the seven senators who expressed support for a markup to the Blade’s solicitation is enough support for Harkin to schedule a markup.
Tico Almeida, president of Freedom to Work, said a markup would enable the committee to make technical changes to the bill before taking it to the Senate floor for final passage.
“Senate rules allow leader Reid to bring ENDA to the floor of the Senate without a committee vote, but a committee mark-up would present a good opportunity for Chairman Harkin to make technical improvements to ENDA, for example, by fixing the legal loophole created by a bad Supreme Court decision called Gross vs. FBL Financial,” Almeida said. “Mr. Harkin recently introduced legislation to fix the same loophole in the age discrimination statute, and ENDA needs the same fix to be incorporated into the bill.”
Ian Thompson, legislative representative for the American Civil Liberties Union, also backed the idea of a committee markup as a way to advance ENDA.
“The Senate HELP Committee should move forward with a markup of this critical and long overdue legislation that will allow American workers who stand side-by-side at the workplace and contribute with equal measure in their jobs to also stand on the same equal footing under the law,” Thompson said.
Thompson added the committee should make modifications to the bill when it comes up for consideration: (a) narrowing the legislation’s exemption so that it doesn’t provide religious organizations “with a blank check” to discriminate against LGBT people for any reason and not just religious teachings, and (b) removing a provision that expands the Defense of Marriage Act and allows employers in states where same-sex couples can legally marry to treat married gay employees as unmarried for the purposes of employee benefits.
Reporting the legislation to the floor would be similar to what Sen. Patrick Leahy (D-Vt.) did for the Respect for Marriage Act, legislation that would repeal the Defense of Marriage Act. In November, Leahy held a markup on the bill in the Senate Judiciary Committee, passing the bill via a party-line vote.
A committee markup may be the furthest extent to which ENDA can advance during the 112th Congress. The 41 co-sponsors of the legislation fall significantly short of the 60 votes needed to overcome a Senate filibuster. Additionally, it’s highly unlikely that the Republican-controlled House would consider ENDA as long as House Speaker John Boehner (R-Ohio) is the presiding officer of that chamber.
The office of Sen. Jeff Bingaman (D-N.M.) reiterated the senator’s support for ENDA in response to the Blade inquiry without explicitly calling for a markup. Jude McCartin, a Bingaman spokesperson said, “Sen. Bingaman is a cosponsor of the bill and as such intends to vote for it.” McCartin didn’t respond to follow up inquiries to clarify whether this means Bingaman wants to see a markup.
But some of the committee members who responded affirmatively to the idea of a markup — Merkley, Murray, Casey and Kirk — went further and volunteered they also want to see a floor vote on the legislation despite the lack of assured passage of the legislation. Even a vote that failed would demonstrate where senators stand on the bill — and which lawmakers ENDA supporters should work to expel on Election Day.
Merkley expressed support for the idea of a markup and floor vote in response to a question from the Washington Blade during a conference call with reporters following the ENDA hearing last week.
“I support any effort that takes this issue forward whether it’s a markup in committee or it going straight to the floor,” Merkley said. “I’ll defer to the leadership of the committee on the most effective legislative strategy, but I think it is long past time for the Senate as a whole to debate and vote on this bill.”
In a statement to the Blade, Casey expressed support for a Senate vote on ENDA in a statement accompanying his backing a markup of the bill.
“I hope that the Senate moves quickly toward bipartisan passage of the Employment Non-Discrimination Act,” Casey said. “This common-sense legislation ensures that employees are judged on their skills and abilities in the workplace and not on their sexual orientation or gender identity and I am hopeful that it will see swift passage.”
Kirk’s support for both a markup and floor vote on ENDA puts him ahead of many Democrats on where he wants to take the legislation. Kate Dickens, a Kirk spokesperson, said, “Sen. Kirk is supportive of committee passage and floor consideration of ENDA.”
Christian Berle, deputy executive director of the Log Cabin Republicans, said his organization supports Kirk’s call to advance the legislation as far as possible in the Senate.
“Jobs and the economy must be the first priority for Congress, and the freedom to work is fundamental to getting all Americans back to work,” Berle said. “Log Cabin Republicans support Sen. Mark Kirk’s effort to secure a markup both in committee and on the floor. Sen. Harry Reid remains the majority leader and could easily schedule a vote to maintain his commitment to equality and should not delay in doing so.”
Support for a floor vote on ENDA echoes a letter that Freedom to Work sent to Senate Majority Leader Harry Reid (D-Nev.) calling for a floor vote this summer on the legislation. The letter notes that Reid said during a 2009 Human Rights Campaign dinner in Utah a floor vote on ENDA would take place “soon” — but has yet to happen — as well as the Blade’s questioning of then-White House Press Secretary Robert Gibbs at the start of this Congress.
In response to a question on whether the administration sees values in passing ENDA in one chamber of Congress, Gibbs acknowledged, “there’s no doubt that whenever you get something done in one [chamber], you’re closer to certainly seeing it come to fruition.”
A number of LGBT groups — including the Human Rights Campaign and the National Gay & Lesbian Task Force — had previously called for a markup of ENDA as they sought a Senate hearing on the legislation. But the call for a full Senate vote on ENDA wasn’t as unified.
Fred Sainz, HRC’s vice president of communications, wasn’t explicit in calling for a floor vote when asked by the Blade if his organization wants to see the Senate take the legislation that far during this Congress.
“HRC supports advancing the bill in the smartest, most strategic fashion and at the most opportune time,” Sainz said. “We will continue to work with our ally organizations as well as fair-minded members of both houses of Congress to find that time.”
Stacey Long, the Task Force’s director of public policy and government affairs at the National Gay and Lesbian Task Force, said her organization wants to see a Senate vote, but only after the committee has first marked up the bill.
“We want it to follow the procedure — first voted out of committee, then sent to the Senate floor, followed by a full Senate vote,” Long said.
But Almeida insisted that a Senate floor vote on ENDA is the best possible route for the bill in the immediate future regardless of what action the committee takes.
“The most opportune time for a Senate vote on ENDA is right away,” Almeida said. “We should not accept excuses for further delay on a Senate vote for legislation supported by super-majorities of the American people. … ENDA now has Republicans calling for a full Senate vote, and that is consistent with the White House’s position that right now the administration prefers a congressional vote on ENDA rather than an executive order that is waiting for the president’s signature.”
Almeida was referring to the proposed executive order barring federal contractors from discriminating against workers based on sexual orientation and gender identity. In April, the White House announced it wouldn’t issue such a directive at this time.