One week after a discharge petition was filed to advance the Employment Non-Discrimination Act, progress seems to have stalled after 190 House Democrats penned their name to the document.
Rep. Jared Polis (D-Colo.), who’s gay and chief sponsor of ENDA, filed Discharge Petition 0011 in the U.S. House last week amid House Speaker John Boehner (R-Ohio)’s continued refusal to bring up ENDA, despite passage in the Senate on a bipartisan basis 10 months ago. If a bare majority of 218 House members sign it, the discharge petition would force a vote on ENDA.
Filed just two months before Election Day, the discharge petition is likely intended to highlight the distinction between Democrats and Republicans on LGBT rights. Discharge petitions rarely work as a legislative maneuver; the last one to succeed forced a vote on McCain-Feingold campaign finance reform legislation.
After the Senate passed ENDA, the immediate goal on the House side was to gather more co-sponsors for ENDA — particularly Republicans — to convince leadership it should be brought to a vote. Over the course of several months, the bill won modest bipartisan support. The bill has a total of 206 co-sponsors consisting of 198 Democrats and eight Republicans.
But the bill never came up and Boehner reportedly told the LGBT Equality Caucus in a closed-door meeting there’s “no way” it would come for a vote this year. At a news conference last week, Polis said the focus is now on the discharge petition and that he’s going to “throw down the gauntlet” to challenge ENDA co-sponsors to support the legislative maneuver.
Despite the immediate growth in signatures for the discharge petition within the week it was filed, no one has penned their name this week as of Tuesday now that lawmakers have left for fall recess, and even the names of some ENDA co-sponsors aren’t on the document.
Four Democrats who co-sponsor ENDA and are able to vote on the floor — Reps. Linda Sanchez (Calif.), Collin Peterson (Minn.), Peter Visclosky (Ind.), Jim Matheson (Utah) — haven’t signed the discharge petition.
For at least of two of these Democrats, the issue may be the narrowed religious exemption in this version of ENDA. Matheson represents a portion of Utah in the U.S. House that has Mormon-affiliated businesses; Visclosky is a Catholic. The offices of Peterson, Visclosky and Matheson didn’t respond to the Blade’s request to comment.
The version of ENDA associated with the discharge petition has a religious exemption along the lines of Title VII of the Civil Rights Act of 1964, which would prohibit religious-affiliated organizations from discriminating against LGBT workers in non-ministeral positions. That’s narrower than the carve out in the bill these House Democrats co-sponsor along the lines of the Senate-passed legislation, which would allow such religious-based discrimination to continue even if ENDA were law.
In a statement to the Blade, Polis insisted objected no House member objected to narrowed religious exemption in the latest version of ENDA.
“Not a single member voiced any concerns about the religious exemption language,” Polis said. “In fact, the members who were aware of it were glad the protections for LGBT Americans would be in line with those for race and gender.”
But the absence of Sanchez is striking because she’s considered a champion of LGBT rights. She’s introduced legislation that would ensure same-sex couples in civil unions would be eligible for Social Security benefits, and even spoke at a forum in Los Angeles hosted by the LGBT group Freedom to Work on the importance of LGBT workplace non-discrimination protections.
In the same week the ENDA discharge petition was filed, Sanchez didn’t vote on a series of initiatives on the House floor. Her absence from floor votes and the absence of her name from the discharge petition may be related.
Mattie Munoz, a Sanchez spokesperson, said her boss supports the ENDA discharge petition and plans to sign her name as soon as lawmakers return from fall recess.
Another five Democrats absent from the petition also aren’t co-sponsors of ENDA, so haven’t articulated support for the bill in any capacity. They are Reps. Dan Lipinski (Ill.), John Barrow (Ga.), Pete Gallego (Texas), Nick Rahall (W.Va.) and Mike McIntyre (N.C.).
Other Democrats who co-sponsor ENDA and are absent from the petition are the five non-voting Democrats in the U.S. House, including Del. Eleanor Holmes Norton (D-D.C.). These delegates are ineligible to sign a discharge petition, according to the House clerk’s office. Three Democrats designated as ENDA co-sponsors – Rob Andrews, Ed Markey and Melvin Watt — have since left the House, so can’t sign the petition.
Notably, three Democrats who don’t co-sponsor ENDA — Reps. Gene Green (Texas), Henry Cuellar (Texas) and Bennie Thompson (Miss.) — have nonetheless signed the discharge petition.
On the day the discharge petition was filed, House Minority Leader Steny Hoyer (D-Md.) issued a “whip alert” email blast — which was later obtained by the Washington Blade — saying Democrats “are urged to sign the Polis discharge petition on the House Floor.”
“Too often, employees are terminated, not promoted, or looked over based solely on their gender identity,” Hoyer writes. “They often face discrimination and harassment and can be mistreated. Discrimination is an economically unwise business practice because it reduces the talent pool for hiring or recruiting employees and can hurt workplace morale.”
On the other side of the aisle, none of the Republicans have signed the discharge petition, even the eight who co-sponsor ENDA: Reps. Ileana Ros-Lehtinen (R-Fla.), Richard Hanna (R-N.Y.), Charlie Dent (R-Pa.), Chris Gibson (R-N.Y.), Mike Coffman (R-Colo.), Frank LoBiondo (R-N.J.), Michael Grimm (R-N.Y.) and Jon Runyan (R-N.J.).
In a statement to the Blade on Tuesday, Ros-Lehtinen, who had earlier indicated she wouldn’t sign the discharge petition even before it was filed, explained her refusal to sign was part of her general policy.
“While I have been a supporter of ENDA and its goals for many years, I do not sign discharge petitions on any topic,” Ros-Lehtinen said. “Congress has made significant bipartisan progress on this bill and I will continue to work with my colleagues on both sides of the aisle so that we can pass this important legislation that would keep LGBT Americans from being treated unjustly at the workplace.”
Although the discharge petition is the most visible effort in recent months to advance ENDA, sources close to the legislation have said a more serious effort is under consideration that isn’t as public.
The strategy entails attaching the bill as an amendment in the Senate to the fiscal year 2015 defense authorization bill, or another larger vehicle, in the lame-duck session of Congress for the House to pass as a complete package. However, the bill would likely be the version with the broader religious exemption to ensure passage in the Senate.
In a statement to the Blade on Tuesday, Dent said he hasn’t signed the petition because he wants to pursue other legislative strategies, such as amending another bill with ENDA.
“My preference is to amend the ENDA language into some other suitable legislative vehicle rather than resorting to a divisive procedural tactic that is unlikely to succeed,” Dent said.
Tico Almeida, president of Freedom to Work, said his organization supports efforts to get ENDA to President Obama’s desk through a discharge petition, but is also among the groups pushing passage of ENDA as an amendment in the Senate.
“We applaud Leader Pelosi and Rep. Polis for their impressive efforts to get House members to support this petition for LGBT workplace protections, and we’re also currently working to build support on the Senate side for attaching LGBT workplace protections to must-pass legislation like the defense bill,” Almeida said. “We’ve had some good meetings with Republican Senate offices about this strategy for achieving LGBT workplace fairness.”
NOTE: This article has been updated with a statement from Polis and information about Sanchez’ absence from House floor votes during the week the discharge petition was filed.