Monday evening, the Senate is scheduled to vote on the Employment Nondiscrimination Act (ENDA), which would make it illegal to discriminate in hiring and employment on the basis of sexual orientation or gender identity. ENDA was last brought to a vote in the Senate in 1996, failing by only a single vote (49-50).
This time around, success will require the proponents of LGBT rights to secure the votes of at least 60 senators, enough to overcome a likely Republican filibuster. As of this week, ENDA has the support of the entire 55-member Democratic caucus. It also has the public support of four Republican senators: Susan Collins (Maine) and Mark Kirk (Ill.) are co-sponsors of the measure, while Lisa Murkowski (Alaska) and Orrin Hatch (Utah) both voted in favor of it in committee. That again leaves ENDA one vote shy of success, though Republican Sen. Bob Portman (Ohio) says he is leaning toward a “yes” vote.
Will ENDA receive the necessary votes? If senators listened to their constituents, the bill would pass overwhelmingly. Nearly all recent opinion polls indicate that a large majority of the American public — more than 70 percent — supports efforts to make employment discrimination against gay men and and lesbians illegal. Of course, these national numbers are not what the senators are likely to care about. However, when we use national polls to estimate opinion by state, we find that majorities in all 50 states support ENDA-like legislation (note that in 1996, majorities in only 36 states supported ENDA). Today, public support ranges from a low of 63 percent in Mississippi to a high of 81 percent in Massachusetts. Here’s the graph of the approximate numbers based on our estimates from survey responses:
Intensity of opinion also favors ENDA — people who “strongly favor” a ban on employment discrimination outnumber those who “strongly oppose” it in every state, usually by 20 percentage points or more.
Despite such high levels of public support, we do not expect ENDA to pass the Senate overwhelmingly (though it will probably pass). Our research [“Gay Rights in Congress: Public Opinion and (Mis)Representation," by Katherine Krimmel, Jeffrey Lax and Justin Phillips] finds that constituent support for gay rights does not easily translate into votes for gay rights legislation in Congress, especially among Republican lawmakers. Historically, for male Republicans, constituent support for LGBT rights needs to reach 66 percent before the lawmaker even has a 50 percent probability of casting a pro-gay vote. While the level of public support needed to generate a pro-gay vote among Republican women is somewhat smaller (58 percent), men constitute nearly 90 percent of the Republican Senate caucus.
Whom should the proponents of ENDA target for the 60th vote? Our opinion estimates suggest that the top target should be Sen. Kelly Ayotte (R-N.H.). Estimated support for ENDA in New Hampshire is at a whopping 77 percent and strong opposition at only about 5 percent. Of all the Republican senators who are not already committed to supporting the bill, Ayotte’s constituents would be most supportive of a “yes” vote. Other top targets (based entirely on constituent opinion) ought to be Sens. Pat Toomey of Pennsylvania, Ron Johnson of Wisconsin and John McCain and Jeff Flake of Arizona. Support for ENDA is at 74 percent in each of these states. According to coverage of the upcoming vote, Sens. Portman and Dean Heller (Nevada) are also being heavily lobbied. Their constituents support ENDA at levels of 71 percent and 72 percent respectively.
Ultimately, however, even if ENDA passes the Senate, it faces a very uncertain future in the House of Representatives, where many believe that Speaker John Boehner (R-Ohio) will not allow the bill to come up for a vote.