Risk of another ENDA failure indicates imperfections in US political system

In the first edition of The Miscellany News this fall, I wrote an article implicating the Senate in passing a critical piece of workplace equity legislation, the Employment Non-Discrimination Act of 2013 (ENDA), that had floundered in Congress for almost as long as I have been alive. Then, last Thursday, it appeared as though I witnessed the realization of my goal: ENDA passed the Senate with a vote of 64-32. (The Huffington Post, “ENDA Vote: Senate Votes To Outlaw LGBT Workplace Discrimination,” 11.07.2013). However, as quickly as the story broke, I saw this bill fall victim to one of the greatest and most insidious courses of action taken by this Congress.

For those who do not know, ENDA mandates that all non-religiously affiliated businesses with over 15 employees cannot discriminate against an applicant or employee based upon the perceived or actual sexual orientation or gender identity. Based on current state regulations, 34 states fail to provide transgender employees any form of recourse against termination, while 29 states do not protect workers from being fired for their sexual orientation.

The great tragedy of this latest permutation of ENDA will not be that it fails to reach President Obama’s desk to be signed into law, but that the bill will most likely fail to be voted on in the House of Representatives at all; thus, this revolutionary and bipartisan bill will go out with a whimper and not a bang.

Just hours after ENDA passed the Senate,  something that has only been done on one previous occasion, Speaker John Boehner’s office told reporters that the bill would, most likely, never even reach the House floor. Speaker Boehner’s spokesman Michael Steel wrote in an email, “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.” (“Spokesman: John Boehner against the Employment Non-Discrimination Act,” 11.04.2013). According to senior aides to Republicans in the House, this version of ENDA will most likely never even be voted on.

The reality is this: ENDA is not a perfect bill in the eyes of people on both sides of the aisle. Conservatives battle against the bill on the grounds that it violates an individual’s right to free speech and represents an unjust encroachment of government into business. Meanwhile, some LGBTQ advocates argue that this bill does not go far enough, as it allows small businesses, the military and religiously-affiliated groups to continue using sexual orientation and gender identity as grounds for termination.

However, in spite of these criticisms, ENDA’s failure should concern all Americans, not just for what this specific bill could do to improve the lives of millions of Americans, but also because of how Congress will kill this bill.

In order to see the tragedy of ENDA’s anticipated defeat, it is necessary to understand just how popular the principles espoused in the bill are. According to a 2011 poll commissioned by the Center for American Progress and completed by Greenberg Quinlan Rosner Research, “nearly three-fourths of voters (73 percent) support protecting gay and transgender people from workplace discrimination.” (Center for American Progress, “Polls Show Huge Public Support for Gay and Transgender Workplace Protections,” 06.02.2011). The poll also shows that this support comes from Democrats and Republicans alike. Also, of the surveyed individuals, 9 out of 10 believed that the federal government already mandated such workplace protections. The statistics show that Americans, regardless of political affiliation, want the federal government to protect LGBTQ employees from discrimination in the workplace.

In all likelihood, this version of ENDA will join its predecessors in the category of fizzled-out legislation, not because it failed to garner enough support from legislators or because the vast majority of Americans oppose the bill’s principles. Instead, ENDA will fail because politicians are too afraid to vote on pieces of legislation they disagree with, on the off-chance that the bills pass. This trend of avoiding seemingly unfavorable votes is not new to either house of Congress, or even unexpected by anyone who has worked in the Capitol; rather, ENDA’s fate illuminates a pattern that has long plagued Washington without much criticism.

The fact is that ENDA does not serve as “frivolous legislation,” as more than half of states do not uphold the standards of ENDA, but that does not make a difference. Moreover, the cries from numerous members of Congress like Senate Majority Leader Harry Reid (D-Nev.) who said “If it came up for a vote in the House, it would pass,” (The Huffington Post, “Harry Reid Predicts House Passage of ENDA If John Boehner Stops Blocking It,” 11.05.2013) will do little to alter the narrative ENDA seems to be living out. Once Speaker Boehner and other influential Republican Congressmen decided to block a vote on the bill, no amount of fact-checking will save it.

Such behavior from politicians threatens the entire fabric of our representative government. We are watching governing transform from the means through which people are listened to and protected to one that preserves the status quo and keeps the powerful in control.

Think about the furor that engulfed Congress when it failed to pass the almost universally supported gun legislation that required background checks and limited the sales of semi-automatic weapons in spite of the fact that polls showed roughly 90 percent of Americans supported the policy. The public watched in horror as Senators voted against a bill their constituents wanted.

Now consider ENDA; this bill, with its popular support, will not even be voted on. Congress has not learned its lesson and has shown that its members will simply ignore the opinions of their constituents.

If we believe that our government is one truly designed to represent the American people, then if the majority of Congressmen, and especially if the majority of Americans, support a piece of legislation, a small minority should not feel free to ignore this trend. The probable failure of ENDA will not mark the end of this fear-based immobility in Congress, not unless we as voters and constituents demand truly the bare minimum of our elected officials—that they listen to the people.

ENDA’s story is merely an anecdote in a much larger, and much more tragic, story of American politics, and the moral of the story is that politics based in fear is dangerous for everyone involved.


—Bethan Johnson ’15 is an English and history major.

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