by on December 17, 2010  •  In Congress, ENDA

Kudos to Chris Geidner, who has published an in-depth examination of the political moves that led to ENDA's legislative death this year. It's Rashomon-style history, which we've seen before – dispiriting, no matter whose story you believe. The piece is long, so I have excerpted it:

…As the members of Congress put in place the final priorities for the lame-duck session of the 111th Congress, nary a word has been heard about [ENDA] – the longest-standing piece of legislation, in one form or another, sought by LGBT advocates.

''It's dead for now,'' the bill's blunt House sponsor, Rep. Barney Frank (D-Mass.), said on Dec. 14. And things had started so well.

The bill had a hearing in the House Education and Labor Committee, with supportive testimony from the Obama administration. Then, Chairman George Miller (D-Calif.) slated ENDA for a mark-up in the House Education and Labor Committee in November 2009.

But Miller canceled the mark-up and that was, more or less, the last that was heard of the bill, which would prohibit employment discrimination on the basis of sexual orientation and gender identity for most employers with 15 or more employees.

Soon enough, ''Don't Ask, Don't Tell'' moved to the fore – both in Congress and in the public's consciousness. By January of this year, it already appeared that the employment measure … had taken a back seat to ending the 1993 law banning openly gay or lesbian military service.

Even the spokesman for House Speaker Nancy Pelosi (D-Calif.) acknowledged this week, ''The long-agreed-upon order was hate crimes; ENDA; 'Don't Ask, Don't Tell.''' But, speaking with Metro Weekly, Pelosi spokesman Drew Hammill said, ''We then went into health care, and obviously that took much longer than anticipated.'' As Frank acknowledged, ''One of the things that delayed [ENDA] was the health bill – because it was in the same committee.''

Then, Hammill said, ''There were issues with the motion to recommit…Everyone thought we had the votes on the underlying measure, but it depended on what language the GOP [brought up] on the motion to recommit. 'Many felt it would be a troublesome sign to take it to the floor and not to be able to overcome the motion to recommit.''

Frank [clarified], ''What they were worried about was a motion to recommit, like saying that an elementary school teacher can't transition in the middle of the year.''

But, as Rep. Tammy Baldwin (D-Wisc.) explained, ''[O]ur vote counts – for two sessions in a row – we didn't reach the same conclusion [as the House Democratic leadership] about the confidence in, not so much passage, but being able to defeat a motion to recommit.''

A House Democratic leadership aide, who asked not to be named to present an open assessment of the whip process, criticized the count of members or the advocacy organizations, saying, ''You'd have the whip check it or the speaker check it, and it wasn't there. At the end of the day, there were serious problems with the motion to recommit. People who they had on the list, people who signed on as co-sponsors because they never thought it would come to the floor…. The 'yes' was not there.''

Baldwin said, however, [that] "there's a reason why there wasn't a complete match-up. The conversation that individual has with the leadership whip team may not end up with his revealing how he's going to vote. He may simply say, 'I'm asking you, as leaders, don't bring this up. Don't make me take this vote. You're the ones who decide.''' But, when she or other members press them for how they would vote, she said, they get an answer, and she had a good deal of confidence in the ability to defeat a motion to recommit related to the gender-identity protections.

Frank was not as sure, saying, ''I'm not confident how it would have turned out. I think people in the community underestimate the opposition.'' He added that, without the gender-identity provisions, ''We clearly have the votes for that.''

Baldwin concluded, though, ''I certainly articulated, both sessions, that I felt we should move forward. I know others shared that.'' Frank, despite his reservations, agreed. ''I wanted to go to the floor,'' he said. ''I agreed with Tammy.''

[According to Hammill,] ''Everyone wanted to go forward. I don't think I disagree with that at all.'' But, he added, ''As you well know, and [Speaker Pelosi has] said this a number of times, moving on two priorities at the same time would be problematic and could endanger the outcome of both.''

…Hammill said, ''There was a decision made with some of the groups – some of them wanted to move forward with 'Don't Ask, Don't Tell.''' National Center for Transgender Equality Executive Director Mara Keisling said that, if such a decision was made, that was unacceptable. ''The problem,'' she said, ''is that they were signaled that it was okay to pick one over the other.''…

[Spokespersons for both HRC and the Task Force denied pushing DADT repeal in front of ENDA.]

As to the specter of a lame-duck vote on ENDA, which had been floated as a possibility throughout the summer and fall, Baldwin said, ''If I were to give you my best opinion on this, [chances of a lame-duck ENDA vote] disappeared when it became clear that if we had any chance of repealing 'Don't Ask, Don't Tell,' that that would happen in the lame duck.''…

''[The delay] had to do with there being staff members in leadership who were afraid of the trans part,'' [Keisling] said. ''And leadership stalled on it. They stalled and they stalled.''

Other LGBT advocates concurred, with different advocates pointing to varying members of the Democratic leadership team as the individuals most responsible for holding back the bill from a vote. All, though, acknowledged that the motion to recommit was the main concern and that, because of that, Pelosi was unwilling to bring the bill to a vote.

Hammill, however, also noted another major concern for the speaker's office, saying, ''Possibly we could get it out of the House, but I don't think anyone sees a path in the Senate.''…

Despite Obama's ''continue[d] support'' of the legislation, White House spokesman Shin Inouye did not sound hopeful about passage of the bill in the near future, telling Metro Weekly of the president's view, ''As the public continues to learn about the need for this legislation, he hopes that Congress will take on this issue to help bring fairness and equality to our nation's laws.''

As to that education, Frank had a message for LGBT advocates, saying, ''In the interim what the community needs to do is educate on the transgender issue.'' The point was echoed by the Democratic leadership aide, who said ''there has not been the work done by the community in the Senate'' to ensure the passage of an inclusive ENDA.

As Frank said, ''I would point out to you that they still have not been able to get transgender protections in liberal places. If you can't do it in Massachusetts, New York and Maryland, it doesn't get easier when you add in South Dakota, Oklahoma and Utah.''


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