In the wake of the seismic change brought about by Election Day results on Tuesday, supporters of LGBT rights are making new plans to advance their agenda in Congress as many signature bills now seem out of reach.
On Tuesday, the Republicans swept back into power by winning a majority of seats in the U.S. House and by shrinking the Democratic majority in the Senate.
CNN on Wednesday projected the GOP will take control of the U.S. House in the 112th Congress by winning at least 60 seats in the election — far more than the 39 seats the party needed to take control of the chamber.
House Minority Leader John Boehner (R-Ohio), who was given a score of “0” on the Human Rights Campaign’s most recent congressional scorecard, will likely replace House Speaker Nancy Pelosi (D-Calif.) in that role when Republicans come into power in the next Congress.
Democrats fared better in the Senate and retained control of the chamber. Many U.S. senators credited with being allies of the LGBT community, such as Majority Leader Harry Reid (D-Nev.) and Sen. Michael Bennet (D-Colo.), won re-election in tight races.
Still, Democrats in the Senate are left with a reduced majority and some LGBT allies, such as Sen. Russ Feingold (D-Wis.), were ousted by voters.
The major wins by the GOP raises serious doubts about moving big ticket pro-LGBT legislation — such as the Employment Non-Discrimination Act — in the next Congress.
Tammy Baldwin (D-Wis.), the only out lesbian in Congress, predicted the shift in control of the House will have a “very significant impact” on advancing pro-LGBT legislation.
“What I hope is that the Republican majority that takes over will not revert to its agenda of the last time they were in the majority, which put us frequently on the defense fighting back anti-gay measures,” she said.
Baldwin said the “chances are very slim” that ENDA or legislation providing partner benefits to federal workers would pass.
“I have seen no great signs that the Republicans who have been re-elected have changed their previous stances, and I certainly don’t feel like the new crop of candidates coming in are champions of gay rights,” she said.
Still, LGBT advocates say they see a path forward for advancing certain rights even with the challenge of Republican control of the House and reduced Democratic majorities in the Senate.
Fred Sainz, HRC’s vice president of communications, said the loss of the House will “certainly impede, but not entirely stop” his organization’s pursuit of LGBT rights through legislation.
Among the items that Sainz identified as having a chance for passing are legislation eliminating the tax penalty on employer-provided health benefits to same-sex partners. Sainz also said he sees a way forward for the Domestic Partner Benefits & Obligations Act.
“There could be space to pass something like a domestic partnership taxation bill, or even a [Domestic Partner Benefits & Obligations Act] bill,” Sainz said. “So, in terms of the federal legislative front, I think that that’s probably the best assessment at this point.”
Winnie Stachelberg, senior vice president for external affairs at the Center for American Progress, also said she sees room for the passage of tax equality legislation or a bill to extend partner benefits to federal workers.
“I think if you take a look at some of the issues around equality in benefits, equality in tax treatment — those are issues that I would make investments in and talk about when it comes to Congress,” she said.
Even though Democrats will be in the minority in the House, Sainz said HRC expects lawmakers to introduce major pro-LGBT legislation, such as ENDA and a bill that would repeal the Defense of Marriage Act.
Supporters of LGBT rights are also preparing for the possibility of anti-gay measures. Sainz said he expected “targeted attacks” with anti-LGBT bills and amendments in the Republican-controlled House.
“We will work to stop the legislative rollback at every turn,” Sainz said.
Which anti-gay measures might the House pursue? Sainz said he wouldn’t rule out the possibility of a federal constitutional amendment banning same-sex marriage.
“At the highest of levels, we may very well see another Federal Marriage Amendment,” Sainz said. “At probably the more opportunistic level, we may see things inserted into bills as amendments that may be harder to spot.”
Baldwin said LGBT advocates “need to be vigilant” and prepare for any number of anti-gay initiatives that might emerge from the House. Still, Baldwin said she thinks the passage of a Federal Marriage Amendment in the 112th Congress would be “unlikely.”
“I think that is unlikely simply because we still have the super majority requirements in the U.S. Senate, but it may come up, we will have to see,” she said.
Stachelberg said the Republican pledge to repeal the health care reform law should also be seen as an anti-gay initiative. Among other things, the law prohibits insurance companies from discriminating based on HIV status.
“Our community needs to be as vocal as any in beating back those efforts to repeal the health care bill,” Stachelberg said. “It would be devastating to our community.”
The Republican takeover of Congress has also augmented the sense of urgency around finishing legislative work on repealing “Don’t Ask, Don’t Tell” this year while Democrats control Congress.
Alex Nicholson, executive director of Servicemembers United, said the results on Election Day “underscore the urgent need” to wrap up efforts on repealing the military’s gay ban. A repeal measure is included as part of major defense budget legislation currently pending before the Senate.
“It would be a huge blow, not only to ‘Don’t Ask, Don’t Tell’ repeal advocates but also to defense contractors and military families, if we don’t get an authorization bill by the end of the year,” Nicholson said.
Nicholson said an “abdication” of the authorization of funds for new defense expenditures and personnel measures would be “unthinkable.”
“This Congress should not want to end its term with that enormous failure on its shoulders,” Nicholson said.
Baldwin also emphasized the importance of the lame duck session in moving forward with “Don’t Ask, Don’t Tell” repeal — although she characterized the Senate’s chances of passing repeal as only “possible.”
“My hope is that since the lame duck will occur with the hold over incumbents, that they can work their way through a filibuster or avoid a filibuster and resolve to pass legislation that would repeal ‘Don’t Ask, Don’t Tell,’” she said.
Many see passage of “Don’t Ask, Don’t Tell” in the lame duck session of Congress before Republicans take control as a challenge. One Democratic aide, who spoke on the condition of anonymity, said a lot has to come into alignment for the Senate to pass such legislation.
“The political climate during the lame duck session will be toxic,” the aide said. “Passage of the defense bill will require all the stars aligning. And it will be impossible to pass this bill without the active support and pressure from President Obama and Defense Secretary Robert Gates.”
With pro-LGBT initiatives possibly tied up for at least the next two years, many advocates are looking more closely at the Obama administration to make changes.
Stachelberg said the LGBT community needs to consider “a range” of ways to address inequality, including non-congressional action.
“Congress is part of that, for sure, but it would be terribly short-sighted if we didn’t invest in efforts to … build on the success that this administration has begun to develop with respect to the executive branch,” she said.
Among the administrative changes that Stachelberg said could be explored are regulatory changes, data collection, non-discrimination policies and funding streams.
Sainz said HRC would continue to push for non-legislative changes from the Obama administration.
“Where federal policy changes are concerned, we believe that non-legislative policy changes will become our continued avenue for progress at the federal level,” Sainz said. “That’s where we’re going to put an awful lot of resources over the next few years.”
According to an HRC document provided by Sainz, among the policy changes the organization is seeking from the administration is LGBT inclusion in health care reform implementation.
Specifically, HRC wants the Department of Health & Human Services to ensure that:
• health disparity and data collection efforts include sexual orientation and gender identity;
• state health insurance exchanges provide coverage available to same-sex partners and their children;
• and benefits packages that insurance plans offer don’t exclude treatments for gender transition.
Another policy change that HRC is seeking is ensuring that LGBT families are included in federal disaster relief.
According to HRC, LGBT families affected by Hurricane Katrina in 2005 were excluded from government services and subjected to anti-gay harassment in shelter facilities. HRC also asserts same-sex couples had difficulty obtaining housing or relief payments.
Consequently, HRC is urging urged the Department of Homeland Security and the Federal Emergency Management Agency to adopt policies barring discrimination against LGBT people and to ensure that their families can receive household aid.
Editor’s note: Tammy Baldwin photo is a Blade file photo by Michael Key