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3 things to watch during the ENDA markup

Senate panel set to vote Wednesday on LGBT anti-bias job bill

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United States Senate, Democratic Party, Republican Party, Massachusetts, Iowa, Wisconsin, Alaska, Elizabeth Warren, Tom Harkin, Tammy Baldwin, Lisa Murkowski, gay news, Washington Blade
United States Senate, Democratic Party, Republican Party, Massachusetts, Iowa, Wisconsin, Alaska, Elizabeth Warren, Tom Harkin, Tammy Baldwin, Lisa Murkowski, gay news, Washington Blade

Sen. Elizabeth Warren (D-Mass.), Sen. Tom Harkin (D-Iowa), Sen. Tammy Baldwin (D-Wis.) and Sen. Lisa Murkowski (R-Alaska) are members of the Senate committee that will vote Wednesday on ENDA. (Photos public domain).

LGBT advocates will be watching a Senate committee Wednesday when it votes on long-sought legislation to protect LGBT workers from discrimination.

The Senate Health, Labor, Education & Pensions Committee will hold its markup Wednesday at 10 a.m. on the Employment Non-Discrimination Act. A successful vote would mark the first time a version of ENDA with transgender protections advanced in Congress.

Here are three things to watch for during the markup before the final vote:

1. What will Republicans do?

Given that all 12 Democrats on the committee — in addition to one Republican, Sen. Mark Kirk (R-Ill.) — are co-sponsors of ENDA, the legislation will almost assuredly be reported to the Senate floor regardless of Republican action if the final vote is on the bill as it was introduced.

Progressive advocates like lesbian Sen. Tammy Baldwin (D-Wis.) and Sen. Elizabeth Warren (D-Mass.) will almost certainly take the opportunity to weigh in on their first opportunity to vote on a bill entirely dedicated to LGBT issues since the start of the 113th Congress.

But support for ENDA from one Republican member of the committee during the markup — Sen. Lisa Murkowski (R-Alaska) — is seen as crucial for ENDA’s prospects for finding 60 votes to end an expected filibuster on the Senate floor. It’ll be difficult for her to change her vote in the full Senate once her position becomes known based on her vote in committee.

Murkowski’s office didn’t respond to a request for comment on ENDA, but she’s known for being supportive of LGBT rights. Just before the Supreme Court rulings on the Defense of Marriage Act and California’s Proposition 8, Murkowski became the third sitting U.S. Senate Republican to come out in favor of marriage equality. She’s also voted for hate crimes protection legislation and “Don’t Ask, Don’t Tell” repeal.

One LGBT advocate, who spoke on condition of anonymity, said Murkowski staffers have said she voted in favor of the Anchorage LGBT non-discrimination ordinance that came before voters in the city last year and was voted down.

Michael Cole-Schwartz, an HRC spokesperson, said his organization is lobbying senators on both sides of the aisle as the Senate markup approaches.

“The first Senate mark-up of an inclusive ENDA is a tremendous step toward floor passage and HRC has been lobbying senators on the bill, Republicans and Democrats alike,” Cole-Schwartz said. “Our efforts include both meetings with staff and senators in Washington as well as generating grassroots support in targeted states around the country.”

Tico Almeida, president of Freedom to Work, said his organization has been lobbying Republicans on ENDA.

“I’ve also asked Freedom to Work’s Republican Legislative Director, Christian Berle, to lobby any and every Republican member of Congress who will take our meeting to hear why ENDA is good for business and consistent with American values about hard work and success,” Almeida said.

Almeida declined to comment on which Republicans his organization has met with, but said there are more GOP members of Congress who’ll vote for a trans-inclusive ENDA than are commonly known.

But Almeida also gave credit to the American Unity Fund, a newly formed Republican LGBT group funded by Republican philanthropist Paul Singer, saying he’s “really impressed by their work on ENDA, and I’m told there’s much more to come.” That group didn’t respond to a request for comment.

The actions of GOP members during the markup are important because Republicans who oppose the legislation may take the opportunity to offer “poison pill” amendments that, if adopted, would make ENDA less palatable for final passage or limit its scope.

Sen. Lamar Alexander (R-Tenn.), the top Republican on the committee, may be the one to carry water for the Republican opposition to ENDA during the committee markup and during the vote on the Senate floor. In the previous Congress, Alexander earned a score of 15 out of 100 on HRC’s congressional scorecard.

Prior to the July 4 recess, Alexander was tight-lipped while speaking with the Washington Blade on Capitol Hill.

“I’m reviewing that now; I’m reviewing that now,” Alexander said.

Asked whether he’s leaning one way or the other on the legislation, Alexander said, “No. I’m still reviewing it. I’m working on immigration and that doesn’t come up until — that’s about a month away.”

2. Will ENDA be updated following Supreme Court decisions on job bias?

As amendments are offered up to ENDA during the markup, technical changes will likely be made to the legislation in the aftermath of recent Supreme Court rulings related to employment discrimination.

One such ruling was in 2009 in the case of Gross v. FBL Financial Services, which raised the standard of proof for making a claim of age discrimination in the workplace based on the Age Discrimination in Employment Act.

The ruling was issued in such a way that, if the current version of ENDA were to become law, would also make allegations of LGBT workplace discrimination more difficult to pursue. The LGBT group Freedom to Work has called for a change in the wording of ENDA to ensure meritorious cases of LGBT workplace discrimination would succeed.

In a statement, Senate HELP Committee Chair Tom Harkin (D-Iowa) said he supports the idea of updating ENDA in accordance with other legislation he previously introduced known as the Protecting Older Workers Against Discrimination Act to address issues the Gross ruling created.

“Last Congress, I introduced  a bill with Sen. Grassley to reverse the Supreme Court’s decision in Gross v. FBL Financial, and I intend to do so again soon,” Harkin said. “I believe the same standard of proof already applicable for plaintiffs alleging discrimination based on race, sex, national origin and religion should also apply to age and disability, as well as sexual orientation and gender identity.”

Another issue is whether ENDA will be updated in the wake of more recent Supreme Court rulings last month in the case of Vance v. Ball State University and the case of University of Texas Southwestern Medical Center v. Nassar.

In the Vance case, the court ruled that a person must be able to hire and fire someone to be considered a supervisor in discrimination lawsuits. In the Nassar case, the court limited how juries can decide retaliation lawsuits and said victims must prove employers only took action against them only for the intention to retaliate.

Writing the dissent in these rulings, Associate Justice Ruth Bader Ginsburg said the decisions dilute the strength of Title VII of the Civil Rights Act, adding the “ball is once again in Congress’ court to correct the error.”

Harkin’s office didn’t respond to a request for comment on whether the senator would support updating ENDA to ensure meritorious cases of LGBT workplace discrimination would succeed in the wake of those decisions.

Almeida predicted the committee would make technical changes to ENDA “to fix some loopholes and mistakes in ENDA’s current text” in a way that would update it in the wake of these Supreme Court decisions.

“In fact, I imagine some Republican senators will want to see technical corrections to certain drafting mistakes that accidentally make ENDA slightly more liberal than it should be,” Almeida said. “I think these technical corrections will be non-controversial and will help us create a better, smarter ENDA that can pass the Senate with 60 or more votes this year.”

Matt McNally, a spokesperson for ENDA’s chief sponsor Sen. Jeff Merkley (D-Ore.), said in a statement to the Blade the senator is prepared to make changes that Harkin deems fit.

“Sen. Merkley supports the current bill and will be working with his colleagues on the HELP committee, under the leadership of chairman Harkin, on any potential changes to the bill during markup,” McNally said.

3. Will lawmakers narrow ENDA’s religious exemption?

Another issue to watch — although the chances of any movement are unlikely — is whether efforts to limit ENDA’s religious exemption will gain  traction. LGBT groups are divided on whether the provision should stay as it is, or be restricted to enable greater protection against anti-LGBT workplace discrimination.

Currently, ENDA has a religious exemption that provides leeway for religious organizations, like churches or religious schools, to discriminate against LGBT employees. That same leeway isn’t found under Title VII, which prohibits religious organizations from discriminating on the basis of race, gender or national origin.

Ian Thompson, legislative representative for the American Civil Liberties Union, said lawmakers should at least consider rethinking the idea of narrowing the religious exemption during the upcoming markup.

“What we have seen over the past several months is an increasing array of voices weighing in on the need to appropriately narrow ENDA’s sweeping religious exemption — from prominent editorials in the Los Angeles Times and New York Times to the chairman emeritus of the NAACP, Julian Bond,” Thompson said. “As more pro-equality members of Congress understand the potential harms of the current exemption, I think there will be even more support for narrowing it. That foundation is being laid now.”

Immediately after the introduction of ENDA in April, the ACLU — along with Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center — made public a letter saying they have “grave concerns” about ENDA’s religious exemption.

Informed sources, speaking on condition of anonymity, have told the Washington Blade the ACLU proposed a change in language related to the religious exemption prior to the bill’s reintroduction at the beginning of the year, but Merkley rejected the proposal out of concern that Republicans would bolt from the bill.

In a statement to the Blade, Harkin indicated a lack of interest in restricting ENDA’s religious exemption by emphasizing he opposes discrimination against LGBT employees by secular employers.

“I believe that — as with all other anti-discrimination protections — a capable employee working for a secular, non-religious organization, should not be fired, or not hired, because of his or her sexual orientation or gender identity,” Harkin said.

Voting in favor of narrowing the religious exemption would also be difficult for lesbian Sen. Tammy Baldwin (D-Wis.), who’s a member of the HELP committee, because as a U.S. House member in 2007 she voted in favor of the current religious exemption when it was offered up as an amendment on the floor.

Despite these calls to limit the religious exemption in ENDA, many prominent LGBT groups working on ENDA say they support the religious exemption as it stands. Among them is Freedom to Work’s Almeida, who noted many religious groups support ENDA because of the exemption.

“Some churches and religious organizations will choose discrimination and some churches will choose inclusion of all of God’s children,” Almeida said. “ENDA does not force the choice of the federal government upon any church, and therefore ensures that ENDA will not be struck down someday by the U.S. Supreme Court for violating religious freedom.”

In a report dated June 11, 2012, the Center for American Progress also endorsed the religious exemption, saying it’s “politically” necessary for ENDA to advance and secure employment protections for LGBT Americans.

“At its core ENDA is about ensuring that all Americans can go to work in an environment free of discrimination,” the report states. “By including such a broad exemption for religious organizations, ENDA is also about protecting religious freedoms.”

One of the authors of the report is Jeff Krehely, who has since departed the Center for American Progress to join as vice president and chief foundation officer for the Human Rights Campaign.

Paul Guequierre, an HRC spokesperson, affirmed Krehely’s views on the religious exemption reflect the view of HRC and said the National Center for Transgender Equality and the National Gay & Lesbian Task Force share that position. NCTE affirmed it supported the exemption.

Mark Daley, a Task Force spokesperson, said his group supports the bill but wants to see the religious exemption narrowed as ENDA progresses.

“The Task Force strongly supports S. 815 and will be working hard for its passage this year,” Daley said. “We also favor narrowing the religious exemption as ENDA moves towards becoming law. We will be working to get the votes needed to pass S. 815 in the 113th Congress.”

If the Senate does take action to limit the religious exemption, it might happen on the Senate floor. During an event hosted by the moderate group Third Way last week, Sen. Kirsten Gillibrand, who isn’t a member of the HELP committee, expressed support for the idea of removing ENDA’s religious exemption.

During the Q&A session, audience member Ellen Sturtz — the lesbian activist affiliated with GetEQUAL who gained notoriety by confronting first lady Michelle Obama — asked Gillibrand whether she’s willing to amend ENDA to remove the religious exemption.

The New York senator responded simply, “Oh, yes. Yes, I am.” Asked by the Blade to elaborate, Bethany Lesser, a Gillibrand spokesperson, said, “Sen. Merkley is leading the ENDA bill and Sen. Gillibrand will offer any help she can provide to help him pass it.”

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Republican Pa. governor nominee opposes LGBTQ rights

Former President Trump backed state Sen. Doug Mastriano

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Pennsylvania State Sen. Doug Mastriano (Screenshot/NBC News)

Republican leadership in the Keystone State are expressing quiet alarm over the emergence of radical-right state senator who secured his place as the party’s nominee in the race against Democratic nominee for governor, Josh Shapiro, who is himself currently serving as the commonwealth’s attorney general.

State Sen. Doug Mastriano, who represents Cumberland, Adams, Franklin and York Counties in the South Central Pennsylvania area bordering Maryland, was not seen as a truly viable candidate in the primary race to be the party standard-bearer until he was endorsed by former President Trump.

Pennsylvania’s gubernatorial race has serious implications for the outcome of the 2024 presidential election cycle as well. The commonwealth is a strategic swing state and the occupant of the governor’s chair in Harrisburg will lend considerable influence to a final vote count.

Mastriano is a polarizing figure within the state’s Republican Party.

The retired U.S. Army colonel has campaigned at political events that included QAnon adherents, he espoused a political agenda that embraced Trump’s Big Lie about the 2020 election, rejected measures taken to protect Pennsylvanians including masks in the coronavirus pandemic, holding an anti-vaccine “Medical Freedom Rally” rally on the state Capitol steps days after declaring his candidacy for the GOP governor’s primary race, and also mixing in messaging of Christian nationalism.

He also supports expanding gun rights in Pennsylvania and in the state Senate sponsored a bill to ban abortion once a heartbeat is detected.

NBC News noted that Mastriano pledged in his election night address that on the first day of his administration he would crack down on “critical race theory,” a catchall term Republicans have used to target school equity programs and new ways of teaching about race, transgender rights and any remaining COVID-19 vaccine requirements.

“CRT is over,” Mastriano declared. “Only biological females can play on biological females’ teams,” he added, and “you can only use the bathroom that your biology and anatomy says.”

His anti-LGBTQ views have long been part of his personal portfolio. The Washington Post reported that 21 years ago while attending the Air Force’s Air Command and Staff College in 2001, then-Maj. Mastriano wrote his master’s thesis on a hypothetical “left-wing ‘Hitlerian putsch'” that was caused by “the depredations of the country’s morally debauched civilian leaders.” Among those “depredations,” in his words, was the “insertion of homosexuality into the military.”

As the Post reported, his paper shows “disgust for anyone who doesn’t hold his view that homosexuality is a form of ‘aberrant sexual conduct.'”

The paper is posted on an official Defense Department website and lists Mastriano as the author at a time when he said he received a master’s degree from the school.

This is not the only instance of Mastriano professing anti-LGBTQ beliefs. 

In 2018, he stated his belief that LGBTQ couples should not be allowed to adopt a child. During an interview with 103.7 FM, when asked “should LGBTQ couples, i.e. two moms or two dads, be allowed to adopt?” Mastriano answered, “No.” [This takes place at the 16:00 mark.]

NBC News interviewed David La Torre, a Republican and former adviser to fellow gubernatorial candidate Jake Corman.

“As far as what a Pennsylvania government would look like with Mastriano in charge, quite frankly, it’s just not something I’m ready to think about at this point,” La Torre said, adding that while there are many unknowns, the dynamic between Mastriano and the state General Assembly, currently controlled by Republicans, would be one to watch. 

“All I know is this — he will govern as governor like he campaigned,” he said. “He would govern with a sledgehammer and expect Republicans to fall in line. And it would be one of the more fascinating tugs of war we’ve seen in Harrisburg.”

Dave Ball, chairman of the Washington County GOP, told NBC News that Mastriano’s victory was “a shame” for the party, the product of “a phenomenon that I truly don’t understand.” But any misgivings won’t stop Ball from working toward the ultimate goal: taking back the governor’s mansion, saying it’s a must-win race. (The two-term incumbent, Tom Wolf, a Democrat, is term-limited.)

As if telegraphing the battles to come should he take the governor’s chair, Politico reported: “Our biggest problem,” said Mastriano on Steve Bannon’s “War Room: Pandemic” podcast on Tuesday, “is going to be these feckless RINO-type Republicans here that will not allow us to have a fighter as governor. But we’re going to beat them and they’re going to lose power, and they’re going to be put to shame.”

Mastriano lists agenda as governor during Pa. GOP nominee victory speech:

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History making win- Out Lesbian could be Oregon’s next governor

“This will be a three-way race for the highest office in our state, and this will be an election unlike anything any of us have ever seen”

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Courtesy of Tina Kotek

The Democratic gubernatorial primary Tuesday win by Oregon Speaker of the House Tina Kotek, who had announced her run for the governor’s seat to replace incumbent Democratic Governor Kate Brown, who is term limited last September 1st, 2021, positions her to become the first Out Lesbian governor in the nation should she win the general election in November.

Kotek’s win comes during an uptick in the elections nationwide as more candidates running for office identify as LGBTQ”. More than 600 LGBTQ candidates are on ballots this year, according to the LGBTQ Victory Fund.

According to the Victory Fund, at least 101 people ran or are running for the U.S. Senate or U.S. House – with 96 still actively running as of February 21, 2022. That marks a 16.1 percent increase in LGBTQ Congressional candidates compared to the 2020 election cycle, when 87 people ran.

Speaking to her supporters after it became clear she had won over Oregon Treasurer Tobias Read, who was polling second among Oregonian progressives, “This will be a three-way race for the highest office in our state, and this will be an election unlike anything any of us have ever seen,” Kotek said.

Republican state legislator Christine Drazan along with an independent candidate, Betsy Johnson are slated to be on the November ballot.

Last Fall when she announced her candidacy, she said, “I am running for Governor because I know that, together, we can reckon with the legacies of injustice and inequality to build a great future for Oregon.” She also noted, “Oregonians are living through a devastating pandemic, the intensifying impacts of climate change, and the economic disruptions that leave too many behind. We must get past the politics of division and focus on making real, meaningful progress for families across our state.” 

“A victory for Tina would shatter a lavender ceiling and be a milestone moment in LGBTQ political history, yet she is running not to make history, but because there are few people as prepared and qualified to serve as Oregon’s governor,” said Mayor Annise Parker, President & CEO of LGBTQ Victory Fund. “Under Tina’s leadership, Oregon has led in passing legislation to improve roads and education, raise the minimum wage and ensure all residents are treated fairly and equally. As governor, Tina will make Oregon a role model for the nation.”

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Karine Jean-Pierre on her firsts: ‘I am a Black, gay, immigrant woman’

High praise for first out WH press secretary

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Karine Jean-Pierre is no stranger to progressive politics.

She takes on the role of White House press secretary as part of a long career working on building political coalitions and as a spokesperson for advocates before coming to the Biden administration, which has won her close allies and admirers who continue to cheer her on. Jean-Pierre’s new position as top spokesperson for President Biden — and the first Black, first openly gay person to become White House press secretary — is the latest endeavor she pursues in that broader mission.

Rahna Epting, executive director of MoveOn.org, knew Jean-Pierre from when she worked at the progressive organization and she quickly became a rising star “because she’s so incredibly skilled at communicating in a way that real people understand.”

“She was incredibly relatable to people that were watching her at home on TV,” Epting said. “And she could speak to you know, she she did that role during the Trump era for MoveOn and she really spoke to the hearts and minds of what people were feeling and thinking during that time.”

It was during Jean-Pierre’s time with MoveOn when she was serving as a moderator for a panel with Kamala Harris and famously rose to block an animal-rights activist who was physically threatening the candidate.

When protests emerged during the Trump era over policies such as his travel ban on Muslim countries, efforts to repeal the Affordable Care Act, and the two impeachment votes seeking to remove Trump from office, Epting said Jean-Pierre was key in MoveOn.org being at the front lines of those efforts.

“Karine was on TV and she was representing the movement in ways that sparked or electrified the energy that was actually being felt out there,” Epting said.

Jean-Pierre, 45, has a distinctive story of rising to become White House press secretary as an immigrant from a Haitian family whose parents brought her to the United States, where she was raised in Queens, N.Y., from the age of five. Jean-Pierre cared for her younger siblings growing up as her mother worked as a home health aide and her father worked as a taxi driver.

Despite these humble beginnings, Jean-Pierre nonetheless reached astonishing heights. After receiving her master’s degree from the School of International & Public Affairs at Columbia University, Jean-Pierre went on to work for President Obama, serving as regional political director for the White House Office of Political Affairs during the Obama administration’s first term, before returning to the White House after Biden was elected president.

Michael Strautmanis, now executive vice president for public engagement at the Obama Foundation, worked with Jean-Pierre in the 2008 presidential campaign and at the White House under Obama and said the first thing that came across to him was how she “always had it covered.”

“She never came and asked me for advice on something where she didn’t already have one or two or three possible solutions to the challenge that she always had,” Strautmanis said. “She was always very, very well prepared, so she just sort of stood out to me.”

Jean-PIerre brings all this background to the role of White House press secretary in addition to achieving many firsts in the appointment as a Black woman, an LGBTQ person and an immigrant. Her partner is Suzanne Malveaux, a CNN reporter and former White House correspondent.

In her maiden briefing on Monday as White House press secretary, Jean-Pierre said the opportunity granted to her in her new role was not just an achievement, but the culmination of work from many who came before her.

“I am obviously acutely aware that my presence at this podium represents a few firsts,” Jean-Pierre said,. “I am a Black, gay, immigrant woman, the first of all three of those to hold this position. I would not be here today if it were not for generations of barriers — barrier-breaking people before me. I stand on their shoulders. If it were not for generations of barrier-breaking people before me, I would not be here.”

Asked by April Ryan of The Grio, a Black news outlet, about the many firsts she achieved by taking on the role as White House press secretary, Jean-Pierre recognized the signal that sends and brought up an article from a newspaper that went to her elementary school in Hampstead, N.Y.

“And these kids wrote me a letter,” Jean-Pierre said. “And in the letter, they talked about how they can dream bigger because of me standing behind this podium. And that matters. You know, as I started out at the beginning: Representation matters. And not just for girls, but also for boys.”

A White House spokesperson said Jean-Pierre was unable to make the Washington Blade’s deadline in response to an interview request for this article. Among the questions the Blade planned to ask was whether or not she feels a special obligation to represent and speak for the communities in her role as White House press secretary.

It wasn’t a straight line for Jean-Pierre to get to the position as White House press secretary. Although she worked for Harris in the Biden campaign, she came to the White House as deputy White House press secretary under Jen Psakl, who was responsible for Biden. (At the start of the Biden administration, Politico reported that Jean-Pierre’s relationship with the vice president became strained and Jean-Pierre was effectively estranged in the final five months of the campaign.)

But Jean-Pierre quickly won high praise in her role as a Biden spokesperson. In May 2021, when she gave her first on-camera briefing as a substitute for Psaki, Jean-Pierre was considered effectively to have knocked the ball out of the park and reportedly won a round of applause from her colleagues upon retuning to the press office.

Ester Fuchs, who was an instructor for Jean-Pierre when she was at Columbia University’s School of International & Public Affairs and later her colleague when she returned as a lecturer, said key to understanding Jean-Pierre’s success in communications is her balance of optimism and realism.

“She showed really a deep understanding of American politics, and particularly divisions in American politics,” Fuchs said. “But she was very much committed to the idea that the American Dream was still real for people like her, but with a kind of realpolitik understanding of what were the roadblocks, and always very committed to equity and fairness and making sure that people who were new immigrants or from high -needs population had a chance to be heard.”

The high praise Jean-Pierre receives from her former colleagues and friends undermines the argument in conservative media she was selected for the role of White House press secretary only because she checks off numerous boxes in the base of the Democratic Party’s coalition. Tucker Carlson of Fox News, for example, aired a segment last week deriding the appointment as the latest example of identity politics. Carlson mocked supporters for saying being LGBTQ is “the only thing you need to know” about Jean-Pierre, essentially ignoring the commitment and achievement she has made in getting there.

But there’s also a boon of having a good personality. Jean-Pierre’s smile as a means of being effective in disarming and comforting people was one of her features that came up two times independently among the people close to her the Blade consulted for this article.

Strautmanis said he’ll be watching to see whether or not Jean-Pierre’s humor comes out in her new role in White House press secretary as well as her capability to make people around her implicitly trust her, but ultimately predicted she would “kick ass.”

“She just engenders a tremendous confidence,” Strautmanis said. “And so, I think that’s the other thing that people are going to see, which is that as she speaks, you’re just gonna have a sense that, ‘You know, I trust what this person is saying,’ and I think that’s a really hard thing to do in that in the work that she’s done before in that job. But I think that’s why she transitioned from being a political staffer into communications, because she has that ability in communications to be up front, be direct, be honest, and yet still kind of push forward a particular agenda. I think that’s a rare combination.”

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