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Is a discharge petition ‘the only way’ to pass ENDA?

Gay lawyer who authored McCain-Feingold thinks so

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Trevor Potter, gay news, Washington Blade

Gay McCain-Feingold co-author Trevor Potter says a discharge petition is “the only way” to pass ENDA. (Photo courtesy of Caplin & Drysdale via Wikimedia Commons).

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.”

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Congress

Congress passes ‘Big, Beautiful Bill’ with massive cuts to health insurance coverage

Roughly 1.8 million LGBTQ Americans rely on Medicaid

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U.S. House Speaker Mike Johnson (R-La.) (Washington Blade photo by Michael Key)

The “Big, Beautiful Bill” heads to President Donald Trump’s desk following the vote by the Republican majority in the U.S. House of Representatives Thursday, which saw two nays from GOP members and unified opposition from the entire Democratic caucus.

To partially offset the cost of tax breaks that disproportionately favor the wealthy, the bill contains massive cuts to Medicaid and social safety net programs like food assistance for the poor while adding a projected $3.3 billion to the deficit.

Policy wise, the signature legislation of Trump’s second term rolls back clean energy tax credits passed under the Biden-Harris administration while beefing up funding for defense and border security.

Roughly 13 percent of LGBTQ adults in the U.S., about 1.8 million people, rely on Medicaid as their primary health insurer, compared to seven percent of non-LGBTQ adults, according to the UCLA School of Law’s Williams Institute think tank on sexual orientation and gender identities.

In total, the Congressional Budget Office estimates the cuts will cause more than 10 million Americans to lose their coverage under Medicaid and anywhere from three to five million to lose their care under Affordable Care Act marketplace plans.

A number of Republicans in the House and Senate opposed the bill reasoning that they might face political consequences for taking away access to healthcare for, particularly, low-income Americans who rely on Medicaid. Poorer voters flocked to Trump in last year’s presidential election, exit polls show.

A provision that would have blocked the use of federal funds to reimburse medical care for transgender youth was blocked by the Senate Parliamentarian and ultimately struck from the legislation — reportedly after the first trans member of Congress, U.S. Rep. Sarah McBride (D-Del.) and the first lesbian U.S. senator, Tammy Baldwin (D-Wis.), shored up unified opposition to the proposal among Congressional Democrats.

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Congress

Ritchie Torres says he is unlikely to run for NY governor

One poll showed gay Democratic congressman nearly tied with Kathy Hochul

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U.S. Rep. Ritchie Torres (D-N.Y.) (Washington Blade photo by Michael Key)

Gay Democratic Congressman Ritchie Torres of New York is unlikely to challenge New York Gov. Kathy Hochul (D) in the state’s next gubernatorial race, he said during an appearance Wednesday on MSNBC’s “Morning Joe.”

“I’m unlikely to run for governor,” he said. ““I feel like the assault that we’ve seen on the social safety net in the Bronx is so unprecedented. It’s so overwhelming that I’m going to keep my focus on Washington, D.C.”

Torres and Hochul were nearly tied in a poll this spring of likely Democratic voters in New York City, fueling speculation that the congressman might run. A Siena College poll, however, found Hochul leading with a wider margin.

Back in D.C., the congressman and his colleagues are unified in their opposition to President Donald Trump’s signature legislation, the “Big Beautiful Bill,” which heads back to the House after passing the Senate by one vote this week.

To pay for tax cuts that disproportionately advantage the ultra-wealthy and large corporations, the president and Congressional Republicans have proposed massive cuts to Medicaid and other social programs.

A provision in the Senate version of the bill that would have blocked the use of federal funds to reimburse medical care for transgender youth was blocked by the Senate Parliamentarian and ultimately struck from the legislation, reportedly after pressure from transgender U.S. Rep. Sarah McBride (D-Del.) and lesbian U.S. Sen. Tammy Baldwin (D-Wis.).

Torres on “Morning Joe” said, “The so-called Big Beautiful Bill represents a betrayal of the working people of America and nowhere more so than in the Bronx,” adding, “It’s going to destabilize every health care provider, every hospital.”

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Congress

House Democrats oppose Bessent’s removal of SOGI from discrimination complaint forms

Congressional Equality Caucus sharply criticized move

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Treasury Secretary Scott Bessent (Washington Blade photo by Michael Key)

A letter issued last week by a group of House Democrats objects to Treasury Secretary Scott Bessent’s removal of sexual orientation and gender identity as bases for sex discrimination complaints in several Equal Employment Opportunity forms.

Bessent, who is gay, is the highest ranking openly LGBTQ official in American history and the second out Cabinet member next to Pete Buttigieg, who served as transportation secretary during the Biden-Harris administration.

The signatories to the letter include a few out members of Congress, Congressional Equality Caucus chair and co-chairs Mark Takano (Calif.), Ritchie Torres (N.Y.), and Becca Balint (Vt.), along with U.S. Reps. Nikema Williams (Ga.), Hank Johnson (Ga.), Raja Krishnamoorthi (Ill.), Delia Ramirez (Ill.), Joyce Beatty (Ohio), Lloyd Doggett (Texas), Eleanor Holmes Norton (D.C.), Josh Gottheimer (N.J.), and Sylvia Garcia (D-Texas).

The letter explains the “critical role” played by the EEO given the strictures and limits on how federal employees can find recourse for unlawful workplace discrimination — namely, without the ability to file complaints directly with the Employment Opportunity Commission or otherwise engage with the agency unless the complainant “appeal[s] an agency’s decision following the agency’s investigation or request[s] a hearing before an administrative judge.”

“Your attempt to remove ‘gender identity’ and ‘sexual orientation’ as bases for sex discrimination complaints in numerous Equal Employment Opportunity (EEO) forms will create unnecessary hurdles to employees filing EEO complaints and undermine enforcement of federal employee’s nondiscrimination protections,” the members wrote in their letter.

They further explain the legal basis behind LGBTQ inclusive nondiscrimination protections for federal employees in the EEOC’s decisions in Macy v. Holder (2012) and Baldwin v. Foxx (2015) and the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020).

“It appears that these changes may be an attempt by the department to dissuade employees from reporting gender identity and sexual orientation discrimination,” the lawmakers wrote. “Without forms clearly enumerating gender identity and sexual orientation as forms of sex discrimination, the average employee who experiences these forms of discrimination may see these forms and not realize that the discrimination they experienced was unlawful and something that they can report and seek recourse for.”

“A more alarming view would be that the department no longer plans to fulfill its legal obligations to investigate complaints of gender identity and sexual orientation and ensure its
employees are working in an environment free from these forms of discrimination,” they added.

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