The vote this week on the Equality Act will be a historic moment marking the first-time a chamber of Congress has approved the comprehensive LGBT legislation, but that will be the easy part in getting it to become law.
With 240 co-sponsors, the Democratic-controlled House is set to approve the Equality Act with no problem, but with Republicans enjoying a majority in the Senate, supporters will need to pick up 13 GOP votes to reach the 60-vote threshold to overcome a filibuster (assuming the entire Democratic caucus is united, which is not the case with West Virginia Sen. Joe Manchin against the bill).
Then there’s President Trump, who came out in opposition to the Equality Act via comments from a senior administration official to the Blade on the basis of unspecified “poison pill” amendments in the bill, and opposition from religious groups like the U.S. Conference of Catholic Bishops and the Church of Latter-day Saints.
Overcoming all these odds would require a Herculean effort and be an unprecedented achievement of legislative strategy, to say the least.
LGBT rights advocates familiar with the strategy for the Equality Act, however, told the Blade they weren’t willing to say die after the vote and are seeking paths to enshrine the Equality Act’s prohibition on anti-LGBT discrimination into law this Congress.
The Blade solicited comments from LGBT advocates working on the legislation on condition of anonymity so they could speak more candidly about the strategy.
One LGBT advocate said the campaign for the Equality Act is “not just an effort to win a resounding as possible House vote, although that certainly is…one the biggest hurdles.”
The advocate said “there’s a fair amount of energy” in working with the Senate on the Equality Act among its business supporters, which includes 200 businesses, the U.S. Chamber of Congress and the National Association of Manufacturers.
“I don’t have a conversation with these companies that stops at ‘What are we doing for the House vote?’” the advocate said. “They all say, ‘This is really exciting. We want to also work on X, Y, Z senators when we get to the point after the House vote.’”
Following passage of the Equality Act in the House, one advocate said “we’re going to see if we can have a test vote in the Senate,” which will be mostly be an amendment introduced by Sen. Jeff Merkley (D-Ore.), the sponsor of the bill, to another legislative vehicle pending before the Senate floor.
“If they do bring bills to the floor and allow amendments, we will very much be looking for an opportunity to get a test vote on the Equality Act,” the advocate said.
But being in a position to offer the Equality Act as an amendment is no small task. With Republicans in the majority, it would require consent from Senate Majority Leader Mitch McConnell (R-Ky.), who isn’t exactly known as a supporter of LGBT rights.
Moreover, the Senate at this time is almost exclusively focused on confirming Trump’s judicial nominees and rarely takes up legislation, let alone a bill approved by the Democratic-controlled House.
A McConnell spokesperson told the Blade Wednesday via email Senate Republican leadership had “no scheduling announcement regarding Senate action” at this time on the Equality Act.
Once an agreement is reached for a vote, the next part is the extraordinary heavy lift of finding 14 senators who aren’t co-sponsors of the Equality Act to vote for the bill. As of right now, the only Republican co-sponsor is Sen. Susan Collins (Maine).
The first tier of likely Republicans votes, one LGBT advocate said, would be Sen. Lisa Murkowski (Alaska), who has a reputation for bucking the Republican caucus and said last year she voted against the Anchorage anti-transgender measure at the ballot, and Sen. Rob Portman (Ohio), who has a gay son. Both Republicans support same-sex marriage and voted for the Employment Non-Discrimination Act in 2013.
The next tier is Republicans, the advocate said, from traditionally “blue” states, which includes Sens. Pat Toomey (R-Pa.) and Ron Johnson (R-Wis.), as well as Sen. Cory Gardner (R-Colo.), who represents an increasingly “blue” state and is behind in the polls as he faces a re-election bid this year.
Although Manchin — the lone Democrat in the Senate not to co-sponsor the Equality Act — has stated opposition to the legislation, citing concerns with having “sufficient guidance to the local [education] officials who will be responsible for implementing,” the West Virginian would likely also vote for the Equality Act if enough Republicans came on board, one LGBT advocate said.
The next tranche of senators is harder. Top of the list is Sen. Mitt Romney (R-Utah), who said in 1994 while seeking to defeat the late Sen. Ted Kennedy in Massachusetts he’d co-sponsor ENDA and “if possible broaden [it] to include housing and credit.” (He remained silent on LGBT non-discrimination during his 2012 presidential campaign and his latest run for the Senate.)
Others would be the Republicans from Florida — Sens. Rick Scott and Marco Rubio — although one advocate snidely said Rubio would have to “decide he wasn’t running for president” as a Republican for him to be in play. Sens. Lamar Alexander (R-Tenn.) and Todd Young (R-Ind.) were also mentioned, but one advocate acknowledged that was “stretching” things a bit.
One LGBT advocate expressed an openness to “changes that could be made to attract additional balance” to the Equality Act, such as an amendment to make clear religious liberty under the First Amendment is upheld under the legislation.
“We weren’t particularly interested in doing that to satisfy people who were still going to vote against the bill, but we could provide clarity…for people who are actually planning to vote for the bill and want to be able to point to clarity on certain areas,” the advocate said. “That would not be problematic because we think the bill strikes the right balance in a whole host of ways.”
But even the number of senators listed there doesn’t get to 60. One LGBT advocate said he “could count to 60, eventually,” but a vote in the Senate would probably fall short of that number.
“We probably would not hit 60, but I feel pretty confident we could get a vote that shows we have a majority in the U.S. Senate, and potentially even a sizable majority of the U.S. Senate,” the advocate said.
A shakeup in the Senate after the 2020 election, the advocate said, would be the more likely route to victory in the chamber for the Equality Act.
“It’s awfully hard to do it in this Congress, with the current composition of the Senate,” the advocate said. “I do think we have to pick up a few more Democratic seats, or pick up a few more pro-equality Republicans.”
The past might provide guidance for the Equality Act. In 2013, LGBT advocates faced a similar situation in efforts to pass the Employment Non-Discrimination Act, legislation that sought to ban anti-LGBT discrimination in the workforce. ENDA was similar in this respect to the Equality Act, although was more limited in scope because it didn’t address other aspects of civil rights law.
The LGBT group Freedom to Work formed with the exclusive purpose of guiding ENDA into law. A $2 million grassroots campaign known as the Americans for Workplace Opportunity was also formed to engage legislators seen as moveable on the legislation.
Although a House vote on ENDA never took place, the Senate approved the legislation with 10 Republican votes and the number of Republican co-sponsors in the House gradually grew before LGBT advocates essentially pulled the plug based on concerns over an overly broad religious exemption in the bill.
One LGBT advocate said he expected “a grassroots campaign to put pressure on the Senate,” but he “can’t put a price tag” on that at this time.
“This is a campaign that we’re going to take our time in ramping up,” the advocate said. “It’s going to look different, I think, in different states. When we look at who the targets are, they really are all in battleground, presidential states, almost to the person.”
In the miraculous event the Equality Act is approved in the Senate, the legislation would head to Trump, who made his opposition to the legislation clear this week via comments from a senior administration official to the Blade.
“The Trump administration absolutely opposes discrimination of any kind and supports the equal treatment of all; however, this bill in its current form is filled with poison pills that threaten to undermine parental and conscience rights,” the senior administration official said.
But the response from the anonymous official isn’t binding, and Trump would be under enormous pressure to the sign the Equality Act in the hypothetical event of a bipartisan vote in the Senate with 14 Republicans in favor of the bill.
One advocate speculated Trump’s decision on the Equality Act in that event “depends on whom he watches on Fox News the moment before it’s put on his desk.”
“He’s president of his base, and he’s going to have the vice president saying into his ear he can’t sign this, and if you do, social conservatives will get mad at you, and therefore he will probably veto it,” the advocate said. “But I don’t think that’s a smart move. I think it would be a tremendous move for him sign it and reposition himself for his re-elect saying he’s not a prisoner of his base.”
At the end of the day, the House vote on the Equality Act will likely be the end of the road for this legislation. But that alone would be an achievement and would build the legislative record for the future.
Looking back, the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act obtained 14 separate votes in either chamber of Congress before former President Barack Obama finally signed the measure into law in 2009.
“Getting the first one done is really, really important, and it sets the tone for the rest,” the advocate said. “Getting the vote in the House sets the stage for how we begin to build our case in the Senate for passage of the Equality Act eventually.”