By Lisa Keen
The Obama administration revealed a political calculation last week: Now is not a good time to sign an executive order prohibiting discrimination against LGBT people who work for federal contractors.
There has been more than the usual expression of “disappointment” from various quarters, but not much more. The general tenor of comments reacting to the news on various gay and gay friendly news sites has been been “no one really gets everything they want,” “Rome wasn’t built in a day,” and “the President will probably have the same position as Mr. Romney.”
All four openly gay members of Congress signed a letter to the president April 3, urging him to sign an executive order, but they made no fuss when White House officials announced he would not do so. The only one to issue a statement, Rep. Tammy Baldwin (D-Wisc.), essentially stood behind the decision, saying, “President Obama has advanced protections for the LGBT community significantly, but there’s no substitute for having a bill for the President to sign. We have to focus on the importance of passing an inclusive Employment Non-Discrimination Act (ENDA) in Congress.”
That was the White House’s message April 11 when senior Obama administration officials informed five LGBT leaders that the president would not sign an executive order “at this time” and, instead, wants to work on a strategy to pass ENDA through Congress.
ENDA, the Employment Non-Discrimination Act, is more comprehensive than the proposed executive order. ENDA would prohibit discrimination based on sexual orientation and gender identity in both public and private employment. The sought after executive order would prohibit such discrimination for people employed by federal contractors.
But the executive order could be activated with a signature from President Obama and ENDA requires approval of both chambers of Congress, one of which is currently controlled by Republicans who will not allow the bill to advance. And, in 2009 and 2010, when President Obama was in the White House and both chambers of Congress were run by Democrats, ENDA still didn’t move.
There was consternation over the no executive order announcement. Rea Carey, head of the National Gay and Lesbian Task Force, said she was “extremely disappointed” and that NGLTF members “strongly disagree” with President Obama’s strategy. Tico Almeida, head of a group dedicated to fighting discrimination against LGBT people in the workplace, Freedom to Work, said the administration gave not “one single valid reason” for not signing an executive order. Joe Solmonese, president of the Human Rights Campaign, issued a statement saying HRC was “extremely disappointed.” And former HRC official Winnie Stachelberg, now with the Center for American Progress, said the executive order was the “best chance” of ending workplace discrimination and she was “disappointed” the White House has a different timetable for seeing it done. Former counsel to Rep. Frank, Robert Raben, was the fifth LGBT leader at the meeting but could not be reached by deadline for comment.
“The reality,” said Stachelberg, “is we’ve been working on ENDA for 18 years and only in two of those years was there what I would call a pro-ENDA Congress and we still couldn’t get it done. It’s an enormous challenge to pass any kind of civil rights legislation, so our best chance is to have an executive order first….Suggesting that an executive order needs to wait for passage of a piece of legislation is not a good strategy.”
Stachelberg and the others promised to keep pressing for an executive order despite the White House’s decision.
But few expressed surprise at the decision.
Election year challenge
Obama is running for re-election this year. Everything he says and does will be used against him in a court of public opinion. And anything LGBT seems inherently vulnerable to manipulation in the political arena. Efforts to prohibit discrimination based on transgender identity are routinely characterized as threats to women and children in public restrooms. Opposition to same-sex couples obtaining marriage licenses is often stoked by the fear that children will easily cast off hard-wired genetics and decide to become gay.
And given the media frenzy that erupted this month around lesbian CNN commentator Hilary Rosen’s barb that Ann Romney “actually never worked a day in her life,” it’s not hard to imagine the campaign of Republican nominee-apparent Mitt Romney attacking an LGBT executive order as another burden on businesses struggling to recover in a still rocky economy.
It’s also interesting to note that the White House staff – senior advisor Valerie Jarrett, openly gay OPM director John Berry, and others – who met with LGBT leaders April 11 to deliver the bad news, made clear that the president’s “I’m not going to sign” message, included a “not at this time” qualifier. That’s not a promise to sign later, but according to accounts from several attending that meeting, the phrase was used repeatedly. And that’s at least as meaningful as the president’s overheard comment to the Russians that he’ll have “more flexibility” after the election to negotiate their disagreements over a European missile shield.
It’s easy to see how “not at this time” comments, while frustrating for those on the waiting end, could come back to haunt the president. One of the chief weaknesses of his apparent GOP opponent, Mitt Romney, is that Romney has often seemed to say what his audience wants to hear. The Romney camp will almost certainly try to argue that the president does the same thing. And given that Romney has stated explicitly that he is against discrimination against gays, Obama’s “no” on the executive order will give Romney some power to hang onto the one in four gay votes that went to the Republican presidential candidate in 2008.
So, there are consequences for President Obama’s decision to decline, or defer, the LGBT executive order on federal contractors. And his campaign has, no doubt, done the math and figured either that they have no chance of persuading those gay Republican voters to vote for Obama or that their numbers are too small to offset the potential fallout an executive order would cause.
Post November strategy
The unanswered question for the LGBT community is whether President Obama will sign an executive order after the election (assuming he wins) or whether he really intends, as some reports have suggested, to require such protection to come through Congress.
In a rare moment of being prepared to answer a gay-related question during a routine White House briefing, Press Secretary Jay Carney said April 12: “The President is dedicated to securing equal rights for all LGBT Americans. And that is why he has long supported an inclusive (ENDA) which would prohibit employers across the country from discriminating on the basis of sexual orientation and gender identity. The President is committed to lasting and comprehensive non-discrimination protections, and we plan to pursue a number of strategies to attain that goal. Our hope is these efforts will result in the passage of ENDA, the Employment Non-Discrimination Act, which is a legislative solution to LGBT employment discrimination. And I would make the comparison here that pursuing that strategy, the passage of ENDA, is very similar to the approach the President took for the legislative repeal of “don’t ask, don’t tell.”
This administration doesn’t say anything on gay issues that isn’t highly scripted ahead of time, and Carney’s statement was not an off-the-cuff ramble. It said the president plans to pursue “a number of strategies” to attain “lasting and comprehensive” protection; and remember “Don’t Ask, Don’t Tell.”
The LGBT community clamored for an executive order to dismiss DADT, but President Obama didn’t sign one. Instead, his administration brought together all interested parties – including opponents of DADT repeal – and constructed a legislative repeal measure that opponents could not say no to without voicing blatant bigotry. Even so, it was a nail-biter that required three cloture votes in the Senate to get to the floor and six moderate Republicans to abandon their party’s line. And it passed in the House largely because it was attached to a defense spending bill, which Congress had to approve.
The LGBT community is left hoping for three other things: that Obama is re-elected, that the House will be won back by Democrats, and that the Senate remain in Democratic hands.
Romney is against discrimination of gays, but he’s a fierce advocate for business. It seems unlikely that, if elected president, he would push Congress to approve ENDA.
In the House, DADT repeal was approved largely because it was attached to a defense spending measure. ENDA won’t have that advantage. There is no equivalent spending bill that Republicans will feel compelled to approve.
And, in the Senate, DADT repeal could not have happened in the Democratic-controlled Senate without those six moderate Republicans. Two-thirds of the Senate seats up for re-election this year are Democratic seats. Democrats have a tough fight on their hands to hang onto the Senate majority this year.