The gay co-author of the bipartisan campaign finance reform law known as McCain-Feingold says LGBT advocates could take a lesson from the way that measure passed into law — a discharge petition in the U.S. House — to advance the Employment Non-Discrimination Act.
Trevor Potter, a Republican attorney with Caplin & Drysdale who specializes in political law, told the Washington Blade on Tuesday that a discharge petition is “the only way” to get ENDA passed while Republicans remain in control of the House.
“Given the House GOP leader’s opposition to ENDA, and resulting refusal to schedule it for a floor vote, the ONLY way to get it passed in the House is by way of a discharge petition,” Potter said via email. “If the petition gets close to 218 signatures, then the leadership will negotiate.”
Asked whether those words should be considered an endorsement of a discharge petition, Potter replied, “I’m not in the business of endorsing strategies — just commenting on them and analyzing them. I’m just a lawyer, not a political strategist.”
Successful discharge petitions in Congress in rare, but some supporters of ENDA — most prominently the LGBT group Freedom to Work — are seeking a discharge petition as a way to get around the issue of House Republican leadership withholding a floor vote on ENDA.
If 218 lawmakers sign the petition, ENDA would come to the floor regardless of what House Speaker John Boehner (R-Ohio) and House Majority Leader Eric Cantor (R-Va.) have to say. That would mean in addition to the 178 sponsors of ENDA, 40 more lawmakers would have to sign the petition in the Republican-majority chamber.
The last successful discharge petition was in 2002: the House version of campaign finance legislation co-written by Potter that became known as the McCain-Feingold Bipartisan Campaign Reform Act.
In addition to co-writing that law, Potter has a distinctive history as an openly gay person in support of McCain. He served as general counsel to the Arizona senator’s 2008 and 2000 presidential campaigns.
Asked whether he could see McCain voting in favor of ENDA, Potter declined to answer.
“Like all good lawyers, I don’t comment on my clients,” he said.
Tico Almeida, president of Freedom to Work, said supporters of ENDA should take heed of Potter’s words as they look to pass the bill during the 113th Congress.
“Mr. Potter is way too modest,” Almeida said. “I understand that he basically co-wrote the McCain-Feingold legislation and was an author of the strategy to move it through both chambers of Congress. I’m impressed with the way they used the House ‘discharge petition’ to bring about the win on that legislation, and we should learn from their success as we push forward this year on ENDA.”
Still, Almeida cautioned against considering a discharge petition the “only way” to pass ENDA in the House and said other options are on the table.
“I don’t think a discharge petition is the only winning strategy, we might also choose to attach ENDA to another bill in the Senate, but the House discharge petition should definitely be on the table after we rack up a huge Senate vote total on ENDA this fall,” Almeida said. “If we all push hard, we could get to 60 Senate votes by September.”
Other LGBT groups and lawmakers who support ENDA aren’t overtly calling at this point for a discharge petition amid preparations for a full floor vote in the Senate in the months ahead.
Mara Keisling, executive director of the National Center for Transgender Equality, spoke broadly about supporting the right strategy to pass the bill when asked about the discharge petition.
“NCTE is interested in pursuing every possible option at the right time in the right way,” Keisling said.
Stacey Long, the National Gay & Lesbian Task Force director of public policy and government affairs, said the first matter at hand is success in the Senate before turning to the House.
“Our focus is building support for ENDA in the Senate and getting a floor vote done as soon as possible,”
Last week, Human Rights Campaign President Chad Griffin said he didn’t know whether a discharge petition would be appropriate for ENDA.
“I think as we get closer and as we make progress in the Senate, we’ll see, as we get closer, what the right strategies will be ultimately to get this done and work with the leadership, and work with Leader Reid and Chairman Harkin, who have been instrumental, and Sen. Merkley, who have been instrumental in getting us to where we are today,” Griffin said.
During the Netroots Nation conference in San Jose, Calif., last month, House Minority Leader Nancy Pelosi (D-Calif.) entertained the idea of a discharge petition to pass ENDA, but doubted the votes are there for passage.
“We can do discharge, but we don’t have enough votes to pass it,” Pelosi said. “So that means we have to have mobilization outside from some of our Republican friends, who should think that this is a form of discrimination that we should be getting rid of. But this is certainly the next order of business for us.”
And in an interview with the Blade in November, Rep. Jared Polis (D-Colo.), the gay lawmaker who’s the chief sponsor of ENDA in the House, said a discharge petition could be an option, but noted that legislation is rarely passed through that method.
“We can certainly file one,” Polis said. “Certainly in my time in Congress and long before it, there has never been a successful discharge petition … There certainly hasn’t been one in my time, or in the immediate past before my time.”