As we have noted, ENDA will finally see committee action in the House of Representative this next Tuesday, November 18. This action is called a markup. So what is that?
A markup is a session in which a Congressional committee does its work. It is called a markup because, basically, the committee takes a proposed piece of legislation and marks it up, thus amending it. (Marking up used to mean that they actually wrote the amendments on it—they don’t do that anymore.) Members of the particular Committee make statements, consider and vote on amendments and then refer the bill to the full House for debate and a final vote.
I’ll walk you through what that means, using ENDA and the House Education and Labor Committee as examples. Here is what to expect.
Next Tuesday at 10 AM in Room 2175 in the Rayburn House Office Building, The Ed & Labor Committee will mark up ENDA (HR3017). To watch a live webcast of the markup, go here. I doubt it will be shown on C-SPAN, but we do not know.
Chairman George Miller (D-CA), who is a very strong LGBT supporter from the Northern East Bay in California, will chair the meeting. He will be joined by a shifting group of between 10 and 40 other members of Congress who sit on the Ed and Labor Committee. A list of Committee members is available here. I say “shifting” because, these days, members come and go during markups and hearings and meetings and probably lunches. Because they have Blackberrys, they can move between meetings, coming to markup when they must or can, but leaving for other business. Many of them will be there most of the time, but others will just fly in to vote and leave.
There will also be quite a few staffers who sit or stand behind the members. There will also be tables off to the side for staffers and sometimes a table for media.
The committee has 30 Democrats and 19 Republicans. It is actually a pretty good committee for equality legislation. Chairman Miller and most of the committee are very supportive of ENDA. In fact three Republicans on the committee (Reps. Judy Biggert (R-IL), Michael Castle (R-DE) and Todd Platts(R-PA)) are co-sponsors of ENDA, and all but three Democrats are co-sponsors, except for Reps. Jason Altmire (D-PA), Marcia Fudge (D-OH) and Dina Titus (D-NV). Jared Polis (D-CO) is the only openly LGBT member of the committee, but there are many other really strong supporters including fourteen members of the Congressional LGBT Equality Caucus. There is one Independent on the Committee, Delegate Gregorio Sablan from the Mariana Islands. He is a co-sponsor and supporter of ENDA and caucuses with the Democrats.
Here is an interesting sidenote: there are two delegates (representing non-states) on the Ed & Labor Committee. In addition to Mr. Sablan (I-MP), the Puerto Rican Delegate, Pedro Pierluisi (D-PR), sits on the Committee and is also a co-sponsor of ENDA. Though they Delegates from non-states do not have a vote in the full House, they are treated as pretty much full members of committees for speaking and voting in committee. Mr. Pierluisi is technically called, not a Delegate, but the Resident Commissioner from Puerto Rico. The rest of them are Delegates, though.
Another interesting sidenote is that five of the six delegates from non-states are ENDA co-sponsors. Only the Delegate from Guam, Madeleine Bordallo (R-GU), is not (yet?). But we have DC, American Samoa, U.S Virgin Islands, Mariana Islands and Puerto Rico. These Delegates do not get to vote on the final passage of ENDA in the full House, but Sablan and Pieriluisi do get to vote in the Ed and Labor Committee next Wednesday. To see a full list of 189 ENDA co-sponsors, go here.
Once Mr. Miller convenes the markup, he will make an opening statement and then allow an opening statement from the ranking member (most senior Republican on the committee) John Kline (R-MN). Kline will talk about how ENDA is not necessary and it is vague and it violates religious organizations’ rights to discriminate against LGBT people. If you have read ENDA, you will wonder if he has. He will likely use the phrase “chilling effect.” Other members will make short opening statements. In committee, statements, voting and even seating is all done by seniority and party.
All the Democrats will sit on one side of the room and the Republicans on the other. These days, though, there are so many more Democrats than Republicans (30-19) that some of the more junior Democrats need to sit on the Republican side.
The committee will consider amendments and there are likely to be quite a few. Some are likely to be useful and will make the bill better, either substantively or politically; others are likely to be bad ideas that are either offered in good faith or as a way to obstruct the process. For instance, opponents of ENDA are likely to propose quite a few amendments that they say will make ENDA better and then admit that they won’t vote for ENDA even if the changes are made. There will also be typical opposition amendments designed only to make a political statement, such as unborn, undocumented transgender immigrant children are allowed to possess automatic weapons while they are drilling for oil in national parks as long as they don’t send text messages while voting.
Each amendment that is called is briefly debated and voted on. When a vote is called on an amendment, at first there will be a lot of absent members, but they will quickly show up, say how they vote and then leave for other business. I stay away from doors during votes. Sometimes they vote on amendments one by one, other times they debate in batches and then vote in batches. Each time there will be a voice vote (“All in favor say aye . . . ” ), and then each time equality opponents will insist on a rollcall vote in order to waste time and to say in a hypothetical later campaign that the ENDA supporter voted 17 trillion times to support LGBT people—except they won’t call us LGBT people.
It is possible that the committee will consider every offered amendment; it is also possible that opponents will offer so many obstructionist and redundant amendments that eventually the Committee will decide to stop hearing amendments.
I should note here that the markup in the House Judiciary Committee Hate Crime bill earlier this year was spread over two days because there were so many amendments. I’m not saying that will or even can happen with ENDA, but don’t be surprised.
Finally, a vote will be held on whether to send the bill with amendments to the full House of Representatives for a vote. We are very optimistic that there will be sufficient votes in the committee. Generally, on a bill like ENDA, committee chairs will not schedule markup until they are pretty certain the bill can at least pass out of committee.
NCTE staff will be attending the hearing and will be Twittering as @transequality and as @marakeisling. If you do not twitter, you can follow our twitter posts on our main webpage at www.transequality.org.
I hope this was informative and interesting. If you really want to learn more, here is a Congressional Research Service document that describes the markup process in gripping detail.
Please keep up the contacts with your members of Congress. It’s ENDA time.