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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 ā€” a discharge petition in the U.S. House ā€” 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 ā€” 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 ā€” most prominently the LGBT group Freedom to Work ā€” are seeking a discharge petition as a way to get around the issue of House Republican leadership Ā 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 theĀ McCain-Feingold Bipartisan Campaign Reform Act.

In addition to co-writing that law, Potter has a distinctive history as an openly gay personĀ in support of McCain. He served as general counsel to the Arizona senator’sĀ 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, weā€™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.

ā€œWe can do discharge, but we donā€™t have enough votes to pass it,ā€ Pelosi said. ā€œSo 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.ā€

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.

ā€œWe can certainly file one,ā€ Polis said. ā€œCertainly in my time in Congress and long before it, there has never been a successful discharge petition ā€¦ There certainly hasnā€™t been one in my time, or in the immediate past before my time.ā€

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Congress

House passes spending bill as Greene threatens to oust Johnson

51 of 52 anti-LGBTQ riders were defeated

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Rep. Marjorie Taylor Greene (R-Ga.) speaks at a press conference on Sept. 20. (Washington Blade photo by Michael Key)

The U.S. House of Representatives averted a government shutdown on Friday with a vote of 286-134 to pass the $1.2 trillion spending bill, over the objections of hard-right members like U.S. Rep. Marjorie Taylor Greene (R-Ga.).

The congresswoman subsequently filed a motion to remove House Speaker Mike Johnson (R-La.), who is himself an ultraconservative legislator. The move marked the second time in six months that the party has called for a vote to oust their own leader.

ā€œToday I filed a motion to vacate after Speaker Johnson has betrayed our conference and broken our rules,ā€ said Greene, who refused to say whether she would call up the resolution to call for a snap vote, which likely means the matter will be delayed until after the two-week recess.

Greene and Johnson are at odds over the content of the minibus appropriations package, with the congresswoman calling it a “Chuck Schumer, Democrat-controlled bill” that does not contain conservative policy demands on matters like immigration and LGBTQ issues.

The speaker, meanwhile, proclaimed, ā€œHouse Republicans achieved conservative policy wins, rejected extreme Democrat proposals, and imposed substantial cuts while significantly strengthening national defense.ā€

With respect to anti-LGBTQ riders submitted by Republican members, more than 50 were ultimately stripped from the bill, which the Human Rights Campaign celebrated as “a victory,” crediting lawmakers for their “bipartisan, bicameral negotiations.”

Of the 52 anti-LGBTQ riders, only one survived in the $1.2 trillion package passed on Friday: A ban on flying Pride flags at U.S. embassies.

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Congress

Massive defeat for anti-trans, anti-LGBTQ riders in spending bill

Proposal has only one rider that would target community

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U.S. Capitol
U.S. Capitol (Washington Blade photo by Michael Key)

On Thursday, Congress unveiled the much-anticipated spending bill to avert a government shutdown. The bill, which includes funding for major government departments such as Health and Human Services and Education, featured fierce negotiations over conservative ā€œpolicy riders.ā€ 

These policy riders included bans on coverage for gender-affirming care, DEI bans, sports bans and more. Despite some indications that Democrats might compromise due to the sheer number of conservative policy riders, it appears those fears did not come to fruition. Democrats held firm in negotiations, and the most impactful anti-trans and anti-LGBTQ riders were nowhere to be found.

One policy rider proposed for the Food and Drug Administration would have defunded any hospital that ā€œdistributes, sells or otherwise uses drugs that disrupt the onset of puberty or sexual development for those under 18,ā€ a measure targeting not only transgender youth but also those experiencing precocious puberty. 

Another rider sought to bar any government funding toward ā€œsurgical procedures or hormone therapy for the purposes of gender-affirming careā€ in the Department of Health and Human Services. This move would have significantly impacted private and subsidized insurance in the Healthcare Marketplace. It also aimed to bar the enforcement of President Joe Bidenā€™s executive order titled ā€œPreventing and Combating Discrimination on the Basis of Gender Identity,ā€ which broadened anti-discrimination protections for trans individuals.

Additional riders included bans on funding for any organization thatĀ ā€œpromotes transgenderism,ā€Ā Title IX protections for trans youth, bans on legal challenges against states over anti-LGBTQ+ laws, book bans, DEI bans and more.

In total, over 40 riders were proposed and negotiated in the spending bills. None of these were found in the final bill.

Ultimately, the final spending bill released contained only a single anti-LGBTQ rider: A ban on Pride flags being raised or displayed above foreign embassies. The policy, while certainly qualifying as anti-LGBTQ and a regression to Trump-era policies, notably does not bar personal displays of Pride flags by embassy workers.

In the past, some embassies have gotten around such bans by not ā€œflying a flag over the embassyā€ but rather, painting portions of the embassy in rainbow colors or draping flags on the side of buildings.

News of the defeat of the most impactful anti-trans and anti-LGBTQ riders comes after a significant push from Equality Caucus Democrats and the Biden administration against the riders. ā€œAs you negotiate government funding for Fiscal Year 2024 (FY24), we write to strongly urge you to reject any attempts to include anti-LGBTQ+ provisions in any final FY24 funding agreement,ā€ said a letter signed by 163 representatives on behalf of the Congressional Equality Caucus to the Biden administration.

However, Republicans also pushed hard for their inclusion. In a shutdown threat issued Feb. 21 from the House Freedom Caucus, Republicans indicated that bans on gender affirming care and trans participation in sports were necessary to prevent a potential shutdown.

Previously, U.S. Dan Crenshaw (R-Texas) stated that such bans are the “hill we will die on.” In a report published by Axios, one Republican lawmaker stated, ā€œPeople are predicting a shutdown even if it’s just for a few days.ā€ Others concurred, citing gender affirming care riders as one of the potential reasons for such a shutdown.

Many anti-LGBTQ leaders in the Republican Party reacted negatively to the bill. U.S. Rep. Matt Gaetz (R-Fla.)Ā expressed angerĀ at funding for the New Jersey Garden State Equality in Education Fund, calling it ā€œforce feeding the LGBT agenda in schoolsā€ and stating that it enables ā€œgender mutilation surgeries in minors,ā€ ā€œbiological menā€ in womenā€™s bathrooms and trans participation in sports.

U.S. Rep. Marjorie Taylor Greene (R-Ga.) decried the lack of a DEI ban. U.S. Rep. Andrew Clyde (R-Ga.) stated that Republicans ā€œsurrenderedā€ to Democrats on hormone therapy. The House Freedom Caucus published a lengthy list of healthcare and equality centers that the budget would fund, urging the GOP to vote ā€œnoā€ and to shut down the government.

In a press release published by House Appropriations Democrats, they stated that the bill rejected over a hundred poison-pill riders, many of which targeted LGBTQ people. For example, the Labor-HHS-Education portion of the bill blocked provisions around gender affirming care, sports bans and nondiscrimination.

See the House Appropriations Democrats statement:

Press release, House Appropriations Democrats on Labor-HHS-Education

The bill must pass by Friday evening to avert a government shutdown, though the impacts of such a shutdown would likely not be felt until Monday. If passed, the bill would keep the government funded through September, at which point all of the riders could resurface during the peak of the 2024 presidential election.

However, for the next several months, LGBTQ riders will not pose a significant threat in a year where trans and queer individuals have faced attacks at historic levels.

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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.

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The preceding article was first published at Erin In The Morning and is republished with permission.

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Congress

Padilla, FCC introduce measure to improve 988 Suicide and Crisis Lifeline

HHS launched effort in 2022

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U.S. Sen. Alex Padilla (D-Calif.) (Screen capture: YouTube)

U.S. Sens. Alex Padilla (D-Calif.) and Thom Tillis (R-N.C.), joined by U.S. Rep. Tony CƔrdenas (D-Calif.), Federal Communications Commission Chairwoman Jessica Rosenworcel and U.S. Secretary of Health and Human Services Xavier Becerra, introduced a measure on Thursday to improve the 988 Suicide and Crisis Lifeline.

Calls are currently routed to mental health professionals and local public safety officials based on the caller’s area code ā€” even though, as the lawmakers and officials noted during their announcement ā€” in many cases, the area code, especially for cell phone numbers, does not match the location from which they are calling.

Under the new proposal, Padilla said, “We’re going to be in a position to be able to provide care as quickly and as safely as possible.”

“In the same way that 911 calls in the case of an emergency are routed to local providers, local first responders, so ambulances can come out and help quickly when you call 911, 988 should be tied to a caller’s location, not their area code,” he said.

Calling Padilla, Tillis, and CĆ”rdenas “great champions of mental health,” Rosenworcel noted, “that’s not our stock and trade” at the FCC.

“We are people who deal with technology and communications,” she said, “but we came to realize that we could work with Congress to make sure that everyone in this country who’s going through a crisis has someone to call and someone who can listen ā€” and that’s why in 2022, we set up 988, the easy-to-remember three digit number for anyone who is in crisis.”

A press release from Padilla’s office explains the details for how the update to the 988 Suicide and Crisis Lifeline will work:

“The Notice of Proposed Rulemaking (NPRM) announced today seeks to address the discrepancies and inefficiencies of the current system by proposing the adoption of a rule that would require a georouting solution to be implemented for all wireless calls to the 9-8-8 Lifeline while balancing the privacy needs of individuals in crisis. 

Georouting refers to technical solutions that enable calls to be directed based on the location of the caller without transmitting the callerā€™s precise location information.Ā These solutions would permit wireless calls to the 9-8-8 Lifeline to be directed to nearby crisis centers based on factors such as the cell tower that originated the call rather than the area code of the wireless device used to place the call.”

The 988 Suicide and Crisis Lifeline offers LGBTQ-affirming counseling, which is accessible by pressing three.

A 2023 survey by the Trevor Project, which included more than 28,000 LGBTQ participants aged 13-24, found that 41 percent had seriously considered suicide within the past year and 56 percent wanted ā€” but were unable to get ā€” mental health care within the last year.

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