Antidiscrimination Bill Will Pass, but Without the ‘Bandwagon’ Effect

WASHINGTON, DC - JANUARY 23: Sen. Dean Heller (R-NV) (L) and Sen. Joe Manchin (D-WV) speak about the ''No Budget No Pay'' legislation during a news conference on Capitol Hill, January 23, 2013 in Washington, DC. The bipartisan legislation would require members of Congress to pass a budget in order to receive their pay.
National Journal
Elahe Izad and Fawn Johnson
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Elahe Izad Fawn Johnson
Nov. 4, 2013, 3:23 p.m.

While the Em­ploy­ment Non-Dis­crim­in­a­tion Act is now headed to­ward fi­nal pas­sage in the Sen­ate, don’t ex­pect a surge of sup­port from law­makers. It’s a safe bet that in the end the meas­ure will be sup­por­ted by less than 70 sen­at­ors.

The bill, which bans work­place dis­crim­in­a­tion based on gender iden­tity or sexu­al ori­ent­a­tion, has not cre­ated the “band­wag­on ef­fect” some­times seen in ma­jor le­gis­la­tion, in which a slew of sup­port­ers piles on once a bill is cer­tain to pass.

In fact, it took last-minute wrangling Monday — par­tially due to the ab­sence of sen­at­ors ex­pec­ted to vote “aye” — to se­cure enough votes on the mo­tion to pro­ceed to the bill, which passed 61-30. A fi­nal vote could come as early as Wed­nes­day.

Pas­sage had been all but locked in by Monday morn­ing, with Sen. Dean Heller, R-Nev., an­noun­cing his sup­port. He be­came the 60th sen­at­or ex­pec­ted to vote for the bill, with all 55 Demo­crats and in­de­pend­ents in­dic­at­ing their back­ing.

Oth­er Re­pub­lic­an sen­at­ors in fa­vor of the bill are Sens. Susan Collins of Maine and Mark Kirk of Illinois, who are co­spon­sors. Sens. Lisa Murkowski of Alaska, who wasn’t present for Monday’s vote, and Or­rin Hatch of Utah voted for the bill in com­mit­tee. Re­pub­lic­ans Kelly Ayotte of New Hamp­shire, Pat Toomey of Pennsylvania, and Rob Port­man of Ohio — who had been pub­licly un­de­cided on the le­gis­la­tion — are those be­ing eyed as pos­sible “yes” votes. They sup­por­ted the mo­tion to pro­ceed after lob­by­ing from Collins. At one point, Sen­ate Ma­jor­ity Lead­er Harry Re­id and the No. 3 Demo­crat in the Sen­ate, Chuck Schu­mer, entered the Re­pub­lic­an cloak­room as part of the ef­fort and struck an agree­ment to put up ad­di­tion­al amend­ments for votes.

As part of the deal, an amend­ment from Ayotte and Port­man that pre­vents loc­al and state gov­ern­ment from re­tali­at­ing against those ex­empt from ENDA will have to reach just a 50-vote threshold for pas­sage. An­oth­er vote will be held on an amend­ment from Toomey that broadens the defin­i­tion of a re­li­gious or­gan­iz­a­tion un­der ENDA. That will need 60 for pas­sage.

The bill won’t likely be­come law in this Con­gress. House Re­pub­lic­an lead­ers say the pro­tec­tions af­forded un­der ENDA are already covered by ex­ist­ing law. “The speak­er be­lieves this le­gis­la­tion will in­crease frivol­ous lit­ig­a­tion and cost Amer­ic­an jobs, es­pe­cially small-busi­ness jobs,” said Mi­chael Steel, a spokes­man for House Speak­er John Boehner.

Des­pite that, pas­sage in the Sen­ate is a ma­jor vic­tory for the gay-rights com­munity, which has seen a surge in polit­ic­al “wins” over the last year, in­clud­ing the Su­preme Court’s land­mark de­cision strik­ing down the De­fense of Mar­riage Act and New Jer­sey be­com­ing the 14th state to em­brace same-sex mar­riage.

“In the 44 years since Stone­wall, this has been the gay­est year in his­tory,” said Fred Sainz, vice pres­id­ent for com­mu­nic­a­tions at the Hu­man Rights Cam­paign. “With the Sen­ate pro­spect­ively join­ing the trend, that really tells you that we are on an up­ward tra­ject­ory.”

But law­makers’ sup­port lags be­hind pub­lic opin­ion. The bill def­in­itely has 60 votes and may get a few more. But the na­tion is far more sup­port­ive. About three-quar­ters of Amer­ic­ans be­lieve dis­crim­in­a­tion in the work­place against gays, les­bi­ans, or trans­sexu­als should be il­leg­al, in­clud­ing 60 per­cent of Re­pub­lic­ans and 59 per­cent of white evan­gel­ic­al Prot­est­ants, ac­cord­ing to the Pub­lic Re­li­gion Re­search In­sti­tute, a non­par­tis­an think tank.

Yet the is­sue still seems to make law­makers squeam­ish, even though ad­voc­ates have done their best to por­tray the nondis­crim­in­a­tion bill as a lo­gist­ic­al ho-hum for em­ploy­ers. (Many of the largest em­ploy­ers already have policies in place pro­hib­it­ing dis­crim­in­a­tion based on sexu­al ori­ent­a­tion.)

“About some of the Re­pub­lic­an reti­cence on the is­sue — I just think they may not have fully got­ten the memo that their con­stitu­ents have moved, even in very re­cent time,” said PRRI CEO Robert Jones. “This is an area where the ground has been shift­ing re­mark­ably quickly.”

Sen. Jeff Flake, R-Ar­iz., sup­por­ted a sim­il­ar an­ti­discrim­in­a­tion bill in the House, which failed in 2007. But he ap­pears to be a “no” this time around. He told Na­tion­al Journ­al Daily that he sup­ports the House ver­sion, not the Sen­ate ver­sion. The main dif­fer­ence between the two bills is that the Sen­ate ver­sion cov­ers trans­gender in­di­vidu­als, and the House bill did not.

Port­man has said he is “in­clined” to sup­port the bill. He has already pub­licly stated his sup­port for same-sex mar­riage.

Even some Sen­ate Demo­crats wer­en’t an easy sell on the bill. Ad­voc­ates as­sumed all along that every Demo­crat would get on board with the bill, but they had a hard time ex­plain­ing why some, like Sen. Bill Nel­son of Flor­ida, held out un­til the last minute. Nel­son, un­like the oth­er Demo­crat­ic late­comers, Sens. Joe Manchin of West Vir­gin­ia and Mark Pry­or of Arkan­sas, didn’t have a polit­ic­al reas­on for stay­ing si­lent. Nel­son’s seat is safe, he isn’t up for reelec­tion un­til 2018, and Flor­ida is gen­er­ally fa­vor­able to­ward gay rights. Chalk up Nel­son’s foot-drag­ging to in­di­vidu­al quirks, the ad­voc­ates say.

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