Is ENDA Dead?  Missing In Action?  Or merely a Prisoner Of the Filibuster? Depending on whom you believe, it's any of the above, or all of the above. But one thing's for certain.  It's not moving.

Here is as a status summary for ENDA (the Employment Non-Discrimination Act, barring discrimination against gay, lesbian, bisexual and transgender individuals in the workplace) as complete as I could pull together. Taken from a conversation with Representative Jared Polis at Netroots Nation (a cosponsor, active supporter, and member of the House committee which has responsibility for the bill) and some digging around on my own; judge for yourself.Outline:

  • ENDA status in the House
  • ENDA status in the Senate
  • Why the Senate sucks
  • What about next year?
  • This year: the only realistic path for ENDA
  • Next year: Filibuster reform may be the only hope
  • Actions
  • Contact info

Broken and not quite broken promises:

ENDA has been the subject of so many broken promises on the part of legislators that it is impossible to keep track of them all. Here are references to four: Two by Barney Frank, one by unnamed legislators in a conference call, and one (not quite broken yet) by Nancy Pelosi.

ENDA status in the House of Representatives:

  • According to Representative Polis, the votes are definitely there to pass the legislation.
  • Polis believes it is 70% likely for the legislation to survive a Motion to Recommit which would quite likely try to undermine transgender protections and do other damage to the bill (here's an example of a successful Republican MtR)
  • There is no desire on the part of the House membership to vote on the legislation, nor any incentive for the House leadership to bring the legislation to a vote, at least as long as the likelihood that the Senate will take up the legislation is as low as it is (which, currently, is about as low as it gets).
  • The bill is currently the responsibility of the House Committee on Education and Labor, which has more than enough co-sponsors of ENDA on the committee for a favorable vote to bring it out and onto the House floor

ENDA status in the Senate:

According to the Act on Principles Senate whip count:

  • Sponsors: 44
  • Known Yes: 7
  • Leaning Yes: 9
  • Undecided: 1
  • Unknown: 1

Total Yes: 51

Total Yes or Potential Yes: 62

Therefore, while there are in fact enough votes to pass the bill, getting ENDA through the Senate has two problems:

  • The 60 votes are not yet there to insure the success of a cloture motion (to end debate)
  • Time is running out on this Congress

As Harry Reid explained at Netroots Nation, every single piece of legislation takes at least 10 days to get through the Senate because of Republicans' ability to use the rules to stall. And because of these same rules, no other legislation can be moved through the process at the same time. Because the Senate is only actually in session 3-4 days a week, and takes long vacations (as in the entire month of August, and likely all of October in deference to the November election), this severely constrains the legislation that can even conceivably be considered by this Senate.

Nonetheless, if it could be demonstrated that 60 votes exist to vote for cloture there's some chance Reid would act on the bill, and hence there is still some chance that ENDA could become law before this Congress ends.

What about next year? What of the prospect of passing ENDA next year, with a new Congress? Glad you asked, but please don't kill the messenger. The prospect of passing ENDA next year, with a new Congress, is at best unlikely, and at worst, nil. In order for ENDA to pass next year (or the year after that):

  • Republicans must not win control of the House, AND
  • Enough supporters of ENDA must survive in the House, even assuming Democrats retain control, both to pass the legislation and derail a Motion to Recommit, AND
  • Republicans must not win control of the Senate, AND
  • Enough supporters of ENDA must survive in the Senate, even assuming Democrats retain control, to both defeat a filibuster (extremely unlikely) and to pass the legislation, OR, with respect to the Senate
  • The filibuster must be reformed or eliminated, along with maintaining at least 50 votes for ENDA

Looking at all this information, it seems that:

  • The only plausible path to ENDA this year is to have the Senate pass the legislation this year, then send it to the House
  • there is almost no chance of ENDA passing in the next Congress, barring filibuster reform.
  • If ENDA is not signed into law this year, the only plausible path for ENDA (and DOMA, and other LGBT legislation) in the next Congress is filibuster reform.

We can conclude the first point because, as discussed, the House is unlikely to take ENDA legislation up unless the Senate has passed it; and even if the House were willing to take it up and pass it, such would be a hollow, merely symbolic victory without a path to victory in the Senate.

This year: the only realistic path to ENDA is to produce those 60 votes in the Senate, and do it within a month or two. As both Nancy Pelosi and Harry Reid made clear at their Netroots talks, the only way ENDA has any chance of being taken up this year is via the 'make me do it' approach: concerted, unrelenting pressure from the grassroots. And not just the LGBT grassroots.

Jared Polis stated the obvious to me in our conversation: LGBT groups alone don't have anywhere near the numbers or the ability to organize and deliver such pressure on members of Congress. Either organizations like MoveOn (5,000,000+ members), Democracy For America (1,000,000+), and the Courage Campaign (700,000+), are willing to join in the fight for equal rights, or nothing is going to happen this year. (DFA and the Courage Campaign did, to their credit, in fact join the fight for DADT repeal in the last few weeks leading up to the vote in the Senate Armed Services Committee).

We can conclude the second point because it is extremely unlikely that the Senate will have as many Democrats next year as it does this year, and it will be basically impossible to get enough Republicans to get to 60 votes. There is no reason to believe Republicans will not continue the same tactics they used this year, only with much greater success because of their larger numbers. If you thought it was hard to get to 60 with 59 or 60 Democrats, imagine how much harder it will be with 55, or 53, or 51…

Next year: Filibuster reform may be the only hope: If and when this Congress terminates with or without passing ENDA, if the LGBT community is interested in pursuing equality via further legislative solutions, almost 100% of its effort should be directed towards filibuster reform. Otherwise, those laboring on individual issues might as well be tilting at windmills. And the effort to generate filibuster reform must take place before January, 2011, because there is only one shot at it — the day the new Senate convenes and decides on its rules.

That's the stark reality. That's the way it is. That's the Straight Dope.

Actions:

What can you do? If you are comfortable with the above analysis, and unless you want to give up, here are some steps you can take. The most critical thing right now to do is convince enough Senators to support a cloture vote on ENDA. And then to keep the pressure on the leadership via calls, protests and civil disobedience. (Contact information for all of this is below):

  • If you live in a state represented by the ENDA Eleven (the 11 Senators representing potential YES votes, of which nine are needed) — Indiana, West Virginia, Delaware, North Dakota, North Carolina, South Dakota, Alaska, Florida, Arkansas, Ohio and Massachusetts — contact them and demand that they come out in support of ENDA, or at least in support of cloture. And if you find out that someone is willing to go on record one way or another, let the community know!
  • Contact the Chairman of the Senate HELP committee, Senator Tom Harkin of Indiana and urge him to move the ENDA bill out of committee.
  • Support GetEqual, the people who are willing to go to jail to keep ENDA in the public eye and to keep the pressure on Congress.
  • Contact the Chairman of the House Committee on Education and Labor, George Miller, and ask him to vote ENDA out of committee.
  • Contact Nancy Pelosi in her role as Speaker of the House and urge her to bring ENDA to a floor vote
  • If you are LGBT, convince leaders of the LGBT Community that you know or who head organizations that you belong to that they must come together quickly, and must reach out to the larger Progressive Community, to have everyone start pressuring Congress for ENDA to have any chance of passing
  • Make sure everyone you know understands the critical need for filibuster reform. Most people haven't a clue. Even if ENDA were to pass, other legislation (e.g., DOMA, or for that matter, any other progressive legislation) stands nary a chance with a 60 vote threshold

Senate HELP Committee Chairman:

TOM HARKIN, IOWA 202-224-3254 email 319-365-4504 563-322-1338 515-284-4574 563-582-2130 606 Brady Street Suite 323, Davenport, IA 52803

House Committee on Education and Labor Chairman: GEORGE MILLER, CALIFORNIA CD 07 202-225-2095 email 510-262-6500, 707-645-1888

Office of the Speaker of the House: NANCY PELOSI SPEAKER OF THE HOUSE 202-225-0100 email

The ENDA Eleven:

Evan Bayh D-IN Undecided
Carte Goodwin D-WV Unknown
Tom Carper D-DE Lean Yes
Kent Conrad D-ND Lean Yes
Kay Hagan D-NC Lean Yes
Tim Johnson D-SD Lean Yes
Lisa Murkowski R-AK Lean Yes
Bill Nelson D-FL Lean Yes
Mark Pryor D-AR Lean Yes
Jay Rockefeller D-WV Lean Yes
George Voinovich R-OH

Lean Yes

 

Long Shots:

Blanche Lincoln D-AR Likely No
Scott Brown R-MA No (as of January 2010)

 

Contact information for the ENDA Eleven and Long Shots:

MARK PRYOR, ARKANSAS 202-224-2353 email 501-324-6336 The River Market, 500 Clinton Ave Ste 401, Little Rock, AR 72201

BLANCHE LINCOLN, ARKANSAS 202-224-4843 email 501-375-2993 870-382-1023 870-910-6896 479-251-1224 912 West Fourth Street, Little Rock, AR 72201

TOM CARPER, DELAWARE 202-224-2441 email 302-573-6291 302-674-3308 302-856-7690 301 North Walnut Street Suite 102L-1, Wilmington, DE 19801

BILL NELSON, FLORIDA 202-224-5274 email 1-888-671-4091 305-536-5999 813-225-7040 850-942-8415 US Court House Annex 111, North Adams Street, Tallahassee, Florida 32301

EVAN BAYH, INDIANA 202-224-5623 email 317-554-0750 812-465-6500 260-426-3151 219-852-2763 1650 Market Tower, 10 West Market St., Indianapolis, IN 46204

KAY HAGAN, NORTH CAROLINA 202-224-6342 email 1-877-852-9462 336-333-5311 919-856-4630 704-334-2448 701 Green Valley Rd, Suite 201, Greensboro, NC 27408

KENT CONRAD, NORTH DAKOTA 202-224-2043 email 701-258-4648 701-852-0703 701-775-9601 U.S. Federal Building, Room 228, 220 East Rosser Avenue, Bismarck, ND 58501

TIM JOHNSON, SOUTH DAKOTA 202-224-5842 email 605-226-3440 605-332-8896 605-341-3990 405 E. Omaha St., Suite B, Rapid City, SD 57701

JAY ROCKEFELLER, WEST VIRGINIA 202-224-6472 email 304-253-9704 304-347-5372 304-367-0122 304-262-9285 405 Capitol Street Suite 508, Charleston, WV 25301-1749

CARTE GOODWIN, WEST VIRGINIA 202-224-3954 no known email or website 304-367-0122, 304-262-9285, 304-347-5372 188 Russell Senate Office Building, Washington, D.C. 20510-4801

SCOTT BROWN, MASSACHUSETTS 202-224-4543 email 617-565-3170 2400 JFK Federal Bldg, Boston, MA 02203

GEORGE VOINOVICH, OHIO 202-224-3353 email 216-522-7095, 513-684-3265, 419-259-3895 1240 East 9th Street, Room 3061, Cleveland, OH 44199

LISA MURKOWSKI, ALASKA 202-224-6665 email 907-456-0233, 907-271-3735 101 12th Ave, Room 216, Fairbanks, AK 99701

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