Drafting ENDA's Battle Plan in the House

Nearly 200 members of the House of Representatives support the Employment Non-Discrimination Act, but the man who controls that chamber appears poised to block even debate of that bill on the House floor.

A spokesman for House Speaker John Boehner (R-Ohio) confirmed last week that Boehner opposes ENDA, which would prohibit discrimination on the basis of sexual orientation and gender identity, because he believes it will lead to frivolous lawsuits and hurt small businesses.

The news was not entirely unexpected - Boehner voted against ENDA the last time a similar bill was considered and approved by the Democratically controlled House in 2007 - but it proved a blow for advocates. Without Boehner's support, it becomes increasingly less likely that House leadership will even allow ENDA to be brought to the floor for a vote.

Boehner's opposition is indicative of the uphill battle advocates have always known they would face on ENDA in the House with its current composition.

ENDA has seen substantial movement in recent months for a piece of legislation that has languished in Congress for decades. A Senate committee approved ENDA with a bipartisan vote in about 15 minutes this past June. On Nov. 4, ENDA cleared a major Senate hurdle when a procedural vote on ENDA cleared the full Senate 61-30, with the support of seven Republican senators. Although not a final vote on the bill, which is expected to come later today, the support of Republican Sens. Rob Portman, Kelly Ayotte, Pat Toomey, Dean Heller and Orrin Hatch, along with the bill's two Republican co-sponsors - Sens. Mark Kirk (Ill.) and Susan Collins (Maine) - sent a significant message to Republicans in the Senate, but also the House.

"The fact that some previously unannounced senators supported cloture - namely Ayotte and Toomey - shows me that there is wider support for ENDA than was first thought. I think the same holds true in the House," said Gregory T. Angelo, executive director of Log Cabin Republicans, which has been lobbying on behalf of ENDA. "The growing number of GOP co-sponsors and supporters of ENDA in the House announced just in the last week bears that out."

ENDA gained its fifth Republican and 194th co-sponsor in the House after Rep. Chris Gibson (N.Y.), who is being challenged for re-election by out candidate Sean Eldridge, attached his name to the bill Oct. 30. Despite support that only seems to be growing, ENDA backers have voiced frustration with House leadership.

"As the Senate places our nation on the doorstep of history, the House Republican leadership is standing in the way of progress," said Minority Leader Nancy Pelosi (D-Calif.), who as speaker in 2007 passed a version of ENDA through the House. "Even with 193 co-sponsors in the House, including five Republicans, Speaker Boehner has indicated that he will block a simple up-or-down vote on ENDA."

Speaking on the Senate floor, Majority Leader Harry Reid (D-Nev.) blasted Boehner's opposition to ENDA as "fail[ing] to take into account the heartbreak and suffering - not to mention lost wages and productivity - that workplace discrimination causes each year."

"I was disappointed to read that Speaker Boehner opposes the Employment Non-Discrimination Act because he believes it will lead to frivolous lawsuits. But coming from the man whose caucus spent $3 million in taxpayer dollars defending the unconstitutional law the Defense of Marriage Act in court, that is pretty rich," Reid stated.

Citing a study by the Government Accountability Office of the 21 states prohibiting LGBT workplace discrimination, Reid said fewer than 10 lawsuits have been filed between 2007 and 2012. "Not only is Speaker Boehner's claim that ENDA would hurt businesses untrue, it's also callous," Reid said.

Without Boehner's support, advocates are charting a different path forward. Pelosi herself pointed to tactics used to force the House leadership's hand to bring the Violence Against Women Act (VAWA), which included LGBT protections, to the floor earlier this year as a potential strategy on ENDA. Stating Democrats made the issue "too hot to handle" in public, Pelosi told reporters she would hope a similar situation would play out with ENDA.

"I would think it would be 'once burned, twice learned,' and that they would, shall we say, save some time by taking it right to our committee and to the floor," Pelosi said. "Ending discrimination is what we are all about as Americans, and we should not have discrimination in the workplace because of gender identity."

Pelosi is not alone in looking to the reauthorization of VAWA in February as providing a potential path forward. As Angelo notes, "VAWA's passage marked the first time in history a Republican-controlled House passed pro-LGBT legislation, and showed me that if the pressure is there from members in Congress and grassroots coalitions, an ENDA vote isn't out of the question."

"GOP leadership brought VAWA to the floor and allowed members to vote their conscience, and it passed with the votes of 87 Republicans. The VAWA vote has given us a roadmap for ENDA," Angelo said. "I'm not saying all Republicans who voted for VAWA will vote for ENDA, but at the very least LGBT protections are not a poison pill for those members."

Reid and Sen. Tammy Baldwin (D-Wis.), the chamber's first out member and who previously served in the House, have both said they are confident ENDA would pass the House if leadership allowed a vote.

"The question is how do you get it to the floor to receive that up or down vote," Baldwin said, floating the possibility of a discharge petition or a package sent over by the Senate. "There are certainly other [possibilities], but those are the main vehicles and we've got to push to have one of those be the way it gets before the body."

According to Human Rights Campaign Vice President Fred Sainz and Freedom to Work founder and President Tico Almeida, a possible route could be to attach ENDA to the Defense Authorization bill, much as was done with hate-crime legislation.

"There's no denying that the speaker is very powerful," Sainz said. "He's said that he's not prepared to bring ENDA to a floor vote so we'll have to figure out other ways to get it there."

But while lawmakers and advocates continue to explore strategies for the House, a focus remains on how dynamics could change after a successful Senate vote.

"Should we be successful that would be a huge factor in enhancing the conversation in the House," said Sen. Jeff Merkley (D-Ore.), ENDA's lead Senate sponsor. "At this moment it's a theoretical conversation and I don't think the House is likely to take this up unless they feel there is a pathway for enactment. And once the Senate has acted, there is such a pathway and I think the conversation will intensify in the House."