Dr. Jillian T. Weiss

Washington Blade: There IS a Path to 60 in the Senate (Pt. 2)

Filed By Dr. Jillian T. Weiss | May 03, 2010 9:30 AM | comments

Filed in: Politics, Politics
Tags: employment discrimination, Employment Non-Discrimination Act, ENDA

This is Part 2 of a 2-part series.

We counted to 49 with the help of the Washington Blade in Part 1 of this series last Friday.

Can you count to 60?

Senate ENDA status 4-29-10.jpg

On April 22, the Blade's Lou Chibbaro published a second article on the ENDA Senate position. Unfortunately, the information given was a bit, well, misleading. I don't fault Chibbaro, because I made the same mistakes myself when I first started covering ENDA last year. But I do want to correct the record.

Also, as I was reminded by Projector Phineas in the comments of Part I on Friday, the Blade article was incorrect in starting the count at 45 co-sponsors. The list on THOMAS, Library of Congress website that lists bills, does not remove co-sponsors when their seats are vacated. The late Senator Kennedy and the former Senator Kirk of Massaschusetts are still listed in their count. It's really 43 co-sponsors plus one original co-sponsor (Sen. Merkley of Oregon). So our count should have started at 44.

Factor in Carper, McCaskill, and Pryor, as I explained in Part I, and we're up to 47.

Counting is tricky business!

The Blade's April 22 Article

On April 22, the Blade had a second article discussing the Senate positioning on ENDA.

At least three highly influential Democratic senators who became embroiled in the contentious fight over President Obama's health care reform bill have yet to co-sponsor for the Employment Non-Discrimination Act.

But Senate Majority Leader Harry Reid (D-Nev.) and Sens. Max Baucus (D-Mont.) and Ben Nelson (D-Neb.) -- each considered battled scarred over the health care fight -- have expressed general support for legislation to ban employment discrimination based on sexual orientation.

Reid and Baucus voted for an earlier version of ENDA in 1996, when it lost in a close Senate vote, prompting LGBT lobbyists to express optimism over the two senators' votes should ENDA come before the Senate this year.

Reid and Baucus have not taken a public stand on the gender identity provision in the current version of the bill, which would ban employment discrimination against transgender people.

I was hoping that Blade reporter Lou Chibbaro would have information from state organizations on their Senators, as he did in his first article. That was very useful. Not here, unfortunately.

Most important about the article is the fact that Chibbaro did not cast doubt on the likelihood of the Senators voting in favor of ENDA. Rather, he emphasized that they have not taken a public stand.

First and most important, Senator Reid, because he is the Majority Leader, rarely co-sponsors legislation. Here's my post explaning how that works. However, he has taken a public stand in support of ENDA.

In September 2009, he made a public statement of support for ENDA at a Human Rights Campaign fundraising dinner in Las Vegas. Here's what he said:

The Senate will soon outlaw discrimination in the workplace by making it illegal to fire, refuse to hire or refuse to promote anyone simply based on his or her sexual orientation or gender identity. It's called the Employment Non-Discrimination Act, and I am committed to passing it out of the Senate and sending it to President Obama for his signature.

So that's 47+1=48 Senators in support of ENDA.

The Blade story is correct in stating that Senator Max Baucus of Montana has not made a public statement on ENDA. However, one of his constituents is a Projector here at The Bilerico Project, who has corresponded with him about it. He has stated his support for ENDA.

This happened back in September of 2009, when I named Senator Baucus as the "Legislator of the Day" for September 16, 2009. Projector Roberta had written to Senator Baucus, asking him to support ENDA. He had responded, stating that he "supports this extension of civil rights provisions." She placed the letter into the comments section of my post featuring Max Baucus as the legislator of the day. You can read it there. As you will note in reading it, it is a bit mixed up, so there is some doubt as to Baucus's understanding of ENDA. He gets the bill number wrong, and incorrectly states that it passed the House. In fact, what passed the House was the 2007 version, which contained sexual orientation only.

Would Senator Baucus be uncomfortable with language including gender identity? He did vote for the hate crimes bill, which contained gender identity language, and he voted against the motion to strip out gender identity. That gives me some comfort on the gender identity language. Of course, because of the uncertainty with regard to Senator Baucus's understanding of the bill, I would call this a prediction, rather than a report. There's many a slip twixt the cup and the lip. But my prediction is a yes vote from Baucus.

If that's right, then it's 48 + 1 = 49 Senate yes votes.

The Blade article also mentioned Senator Ben Nelson (D-Neb.). It's true that Senator Nelson has not publicly commented on ENDA, but there are a number of active LGBT organizations in Nebraska. I have learned that Senator Nelson has said in a number of private meetings that he is supportive of the current ENDA bill. Of course, this is exactly the problem we had in 2007 - private support and then folding at crunch time. Will Senator Nelson be supportive of gender identity inclusion?

I think he will. He voted for the Hate Crimes Act and against the motion to strip gender identity from the bill. That's obviously not a major sticking point for him. He's also been open to communication with the Nebraska LGBT community. Again, a prediction, and not a report: I believe Senator Nelson will vote for ENDA.

If that's right, then it's 49 + 1 = 50 Senate yes votes.

The Blade's April 29 Article

In his April 29 article, Blade reporter Lou Chibbaro analyzed Senators in four different states.

All but one of the Democratic senators from North Dakota, South Dakota, Virginia and West Virginia who are uncommitted on the Employment Non-Discrimination Act appear to be leaning toward voting for the bill, according to LGBT activists.

Chibbaro did speak to a number of state organization people on these Senators, and they were very informative.

He quoted Joshua Boschee, a member of the North Dakota Human Rights Coalition, who said that he was fairly confident that North Dakota Sens. Kent Conrad and Byron Dorgan, both Democrats would vote for ENDA.

50+2 = 52

The article cited advocates from South Dakota, Virginia and West Virginia, who felt that Senators Tim Johnson (D-S.D.), Mark Warner (D-Va.) and John Rockefeller (D-W.Va.) are good candidates to vote for ENDA.


The other South Dakota Senator, John Thune, a Republican, voted against the hate crimes bill. The other Virginia Senator, Jim Webb, a Democrat, is already a co-sponsor of the bill. Activists from West Virginia said they were less certain about Sen. Robert Byrd who has declined to say how he will vote on the bill. They indicated that he might vote to break a filibuster, but abstain from the bill. I will note that there is hope for Senator Byrd as a yes vote. He voted for ending the filibuster on the hate crimes bill, and voted for the bill itself.

The Path From 55 to 60

While the Blade did not itself say that there is a path to 60, such an inference is strongly implied by the Blade's reporting. Among the Senators who were not mentioned by the Blade are several who bear similar characteristics to the Senators the Blade counted among its likely yes votes

There is Senator Evan Bayh of Indiana, who voted for the hate crimes bill and against stripping gender identity from the bill. Bayh is stepping down at the end of his term, so he will not be experiencing the pressure of electoral politics, and will be more free to do the right thing.

There is Senator Bill Nelson of Florida, who also voted for the hate crimes bill and against stripping gender identity from the bill. Nelson has been friendly to GLBT issues in the past.

There is Senator Jon Tester of Montana. He confirmed his vote for ENDA in a letter to a Projector, and a similar letter was received by another person from Montana. He also voted for the hate crimes bill

There is Senator Kay Hagan of North Carolina. She also voted for the hate crimes bill. In fact, during her time in the North Carolina legislature, she twice sponsored inclusive state ENDA bills. She's indicated she's undecided, but advocates from North Carolina that I have spoken to feel that she will vote yes.

There are also three Republicans who might vote yes on ENDA: Lisa Murkowski of Alaska, Richard Lugar of Indiana, and George Voinovich of Ohio.

Senator Murkowski crossed party lines to vote for ending the filibuster on the hate crimes bill, and voted for the bill itself. She had also voted for earlier 09 hate crimes bill.

Senator Lugar also crossed party lines to vote for ending the filibuster on hate crimes, and voted for the hate crimes bill. He has indicated that he has concerns about the effect of ENDA on small businesses. However, as I pointed out in my post entitled "Tell IN Senator Lugar: No Small Business Will Be Harmed In The Making of This Law," that argument is rather easily overcome.

Senator Voinovich also crossed party lines and voted for ending the filibuster on hate crimes, and voted for the bill itself. He also cosponsored LGBT-friendly bills in the 106th and 107th Congress. In fact, his support for ENDA has been suggested by conservatives. He's also stepping down at the end of his term, and the effects of electoral politics will be lessened.

There is a path to 60 in the Senate. Is it surefire? Nope.

But if the Administration and the Democratic Party get serious about passing ENDA, and the stars line up, and we all call and write and demand our civil rights, ENDA could pass the Senate and be on President Obama's desk for signature this year.

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Evan Bayh has his sights on the White House. That will play into his decision - if it ever gets to a vote.

There's a lot of rumor that he'll run for Governor of Indiana again, but I can't see how that'll really help his career much. He applied to be the head of the NCAA (based in Indy) but got passed over.

So we can see 60 with two pairs of rose-colored glasses and a serious squint. But an equally credible opposite argument would produce something around 46. Plus the article all-too-coyly implies that inclusive/non-inclusive wouldn't affect the 60 number. Sadly, I feel this exercise argues nothing more compelling than dump the T to preserve a witheringly small chance of success.

Frankly I'm meh on the cloture vote odds-making. I prefer focus on Senate committee and floor votes on the (inclusive) bill itself. Merely triggering filibuster is a reasonable hope--which would push some moderates away from the dark-side and burn a few more Log Cabins ;)

Not to mention, obsessive focus on the last hurdle before the first one has been cleared is a touch odd.

Thank you for your kind comment, Aislin. I'm curious to hear your argument for 46, based on the specific facts of the Senators' track records. Who do you think is mostly likely to fall by the wayside?

I'm not sure what you mean when you say "merely triggering filibuster is a reasonable hope." It's unclear.

As far as being a touch odd, I've been accused of worse. My reason for the focus on the Senate is because many of those who argue against an inclusive ENDA do so because they say there is no hope of ENDA passing the Senate. It's important for us as supporters and for Representatives to know that there is a path to 60 in the Senate, so that their efforts are not in vain.

I don't think it will be allowed to come to a vote... but if it is, 60 is possible, over 55 very likely.

The reason I say that, is because we're now facing yet another indefinite delay in the House Education and Labor committee.

Barney Frank must have been very confident to finally get off the fence and say it would definitely be moved out "this week or next". But that was over 2 weeks ago, and there's no sign on the website of any movement. Somewhere, somehow, the wheels fell off. Given delays, I think a month from now is the earliest we can hope for. Not expect mind you, that's the best case.

They're running out the clock. A vote in the House may indeed happen soon after it clears the committee - say within a month or two. So we're looking at August.

Movement in the Senate committee won't happen until it's been passed by the House. So say another 3 months and OOPS, so sorry, run out of time, too bad.

It's already too late without heroic measures being taken. That's a possibility mind you, and not all that improbable. But the odds are against.

Worst case - it doesn't make it out of committee, because it's regarded as already too late for a Senate vote, and they don't want "anything controversial" before November. I think we can take it as given that that means a 14 year delay.

I understand your skepticism, Zoe, and have felt it myself. However, I am getting a lot of signals that this is taking longer than expected because there are so many other things on the plate that the whip count is moving slower than expected. That could be a cover for running out the clock, but I do believe there is political will on ENDA, now that DADT has been stalled. The Obama Administration has been prevented from moving to the right to attract indepdendents, its original plan on the midterms. I believe it's moving to the left because of the events of the past month: the Arizona law and the oil spill. It has to lock up its base to avert disaster, and wants something good to show for the 7 million gay voters in this country by the midterms. It's not surefire, but it makes sense to me. I won't stop working for ENDA now.

By the way Jillian - You owe me a dollar.

However, it appeared, after comparing statements made when the bill was introduced with later statements, that the House vote, initially thought to be in October or November, was now being discussed in a "December or February" timeframe. That would put the bill up before the Senate during midterm election campaigns, which could make it more difficult to gain support among conservative Democrats and liberal Republicans.
Who would have believed back then in November, that ENDA would still be stuck in committee in May, 2010?
I think it is possible, barely, but possible, that the stars will line up and they'll kick this out of Committee without any crazy bathroom amendments by the end of January, vote on it in the House in the first two weeks of Februrary, and then the Senate attaches it to the jobs bill and it passes by the end of March. I'm willing to bet on it. A dollar. A U.S. dollar to an Australian dollar. But not more. You on?
Of course... all that means is that we're just going to have to make darn sure that Heroic Measures are taken. And the only way we can do that is to phone, fax, write, e-mail, every freaking day if need be, every senator or representative we can. Rather than your work being hopeless, it's now our only hope.

We've accomplished harder things, you and I, have we not? Care to bet that dollar that we'll get at least a vote in the Senate? This time I'll be the optimist, and say that if the stars are in the right conjunction, we'll get ENDA through. I really believe we probably have the votes if we can just get it to a vote.

You are correct. I owe you one Dollar U.S., which is on its way to you. You won fair and square.

So what's the new bet? That we get a vote in the Senate, or that we pass the Senate? And we need a date certain to make it a valid wager.

I think if we get a vote, we'll win.

So this time, the bet is "Zoe Brain bets $1 Australian vs $1 US that the Senate will pass ENDA before January 1st 2011"

Keep the dollar till then. I hope you send me two, and it will save postage. I think YOU hope you send me two as well.

If - no, WHEN you do - I'll frame them. But I want them autographed by the one woman who did more than anyone else to make it happen.

Had any word from Diego recently BTW?


If I thought the situation was hopeless, I wouldn't be pointing out that the HELC is on the critical path (sorry, once a project manager, always a project manager).


I've heard from Diego. Situation looks good and moving along. I agree that the hellions of HELC are on the critical path. But let's hope we never get to T minus one.