ENDA finds no support among Nebraska senators

Debate continues in the Senate this week on the Employment Non-Discrimination Act  — the first major gay rights legislation considered in Washington during the past three years.

Six Republicans joined all 55 members of the Democratic caucus to remove a procedural hurdle and allow debate to continue.

Nebraska Sens. Mike Johanns and Deb Fischer were not among the handful of Republicans who supported the measure. Johanns has a long history of being non-gay friendly while in the Senate, as mayor of Lincoln and governor of Nebraska.

Voting with the Democratic majority were Republican Sens. Ayotte of New Hampshire, Collins of Maine, Hatch of Utah, Heller of Nevada, Kirk of Illinois, and Toomey of Pennsylvania.

Exempted from ENDA are religious organizations. It also would not apply to businesses with less than 15 employees.

ENDA could pass the Senate by the end of the week, but House Speaker John Boehner said Monday he does not support ENDA, so it will face much stiffer opposition in the House.

The last major gay-rights legislation passed by Congress was the repeal of the Don’t Ask, Don’t Tell policy in 2010. All three of Nebraska’s congressmen, Reps. Terry, Smith and Fortenberry, voted to allow gays to serve openly in the military. Nebraska Sen. Ben Nelson also voted in favor of the measure; Sen. Mike Johanns did not.

Only 21 states have laws prohibiting employment discrimination based on sexual orientation or gender identity, and Nebraska is not among them.

Neighboring states Colorado and Iowa have employment protections. Kansas and Wyoming have laws or regulations that protect gay public employees.  Missouri offers protection only to gay employees of the state’s executive branch.

It was not immediately clear how ENDA would affect Nebraska because it is an at-will employment state. Employees may be fired for any reason or no reason at all.

Nebraska also doesn’t recognize same-sex marriages, civil partnerships or domestic partnerships because of an amendment to the state constitution voters approved in 2000.

Nonetheless, gay rights issues are heating up in the state as it tries to cope with the realities of the U.S. Supreme Court’s June ruling that threw out parts of the federal Defense of Marriage Act, clearing the way for same-sex couples to receive federal tax, health, and pension benefits.

Nebraska is also having to deal with a growing number of  same-sex couples wed in one of the 14 states that recognize gay marriage but now live in Nebraska, and the repeal of Don’t Ask, Don’t Tell. Three gay couples recently sued the state for the right to adopt or become foster parents. Nebraska also prohibits same-sex couples from adopting their partner’s children, and it requires couples legally married in other states to file state income taxes as single people.

State legislators are talking about remedying the matter by allowing civil unions, which would seem to be the most palatable to Nebraska voters.

For the record, Nebraska is not one of the states Secretary of Defense Chuck Hagel called out last week for refusing to issue ID cards to the spouses and children of gay members of the National Guard. The IDs allow them access to bases and commissaries.

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Update: The Employment Nondiscrimination Act of 2013 passed the Senate on Thursday Nov. 7 on a vote of 64-32. Nebraska Sens. Johanns and Fischer voted against it. The bill now moves to the House, where Speaker John Boehner is not expected to bring it up for debate.

Neither Nebraska senator has posted anything on their Senate website about ENDA or gay rights, but Joe Morton at the Omaha World-Herald caught up with both of them.  (Midlands Republicans in Senate to vote against workplace gay bias bill, published Nov. 7, 2013.)

Johanns said in a statement released after the earlier vote:  “I firmly believe every person deserves to be treated with dignity and respect, but I have serious concerns about the impact this legislation would have on religious organizations and private business owners with deeply-held religious beliefs.”

Fischer said she would have wanted greater protection for religious organizations, but the rest of her comments were somewhat confusing.

“I don’t like the fact that we carve out all these special privileges. That has always, always bothered me,” Fischer told Morton. “I don’t think anybody, anybody should be discriminated against. As a woman I shouldn’t be discriminated against. I don’t think it’s helpful to always carve this out, though, saying women shouldn’t be discriminated against.”

The confusing aspect of her comment is that women do have legal protections from discrimination in the workplace.

No problem saying no

Senate Republicans, including Nebraska Sens. Fischer and Johanns,, opposed the nomination Thursday of  Rep. Mel Watts(R-NC).

On Thursday, Senate Republicans, including Nebraska Sens. Fischer and Johanns, held up the nomination of Rep. Mel Watts (D-NC).

The refusal of Senate Republicans to allow  a vote on two of President Obama’s nominees Thursday may or may not signal the  end a truce hammered out months ago to avoid the “nuclear option.”

What’s  certain, though, is that neither Sens. Deb Fischer nor Mike Johanns have any problem voting against Obama’s nominees.  This year has brought a long stream of  “nay” votes on presidential nominees from the two Nebraskans.

Both voted to block the nominations of  U.S. Rep. Mel Watt to be director of the Federal Housing Finance Agency and Patricia Millett to be a judge on the D.C. Circuit Court of Appeals.

During her freshman year in the Senate, Fischer also voted against the otherwise successful nominations of:

Chuck Hagel as secretary of Defense, Jacob Lew as secretary of the Treasury, John Brennan as CIA director,  Richard Cordray as director of the Bureau of Consumer Financial Protection, Thomas Perez as secretary of Labor, Regina McCarthy as EPA administrator, Bryon T. Jones as director of Alcohol, Tobacco, Firearms and Explosives, Elaine Kaplan as a judge on the U.S. Court of Federal Claims, plus all four of Obama’s nominees to the National Labor Relations Board.

Johanns, meanwhile, has been only slightly more disposed to vote in favor of the president’s nominees. He supported the nominations of Lew and fellow Nebraskan Hagel, but voted with Fischer against the rest.

Notice a theme? Most of these people were appointed to a body with a GOP hot-button word in their names: firearms, labor, consumer protection, environment.

Standing out from this list is John Kerry, president Obama’s choice to replace Hillary Clinton as secretary of State. Fischer and Johanns both supported the choice of Kerry, but it is rare for a nominee who is a sitting member of Congress not to be confirmed for a presidential appointment.

It is so rare, in fact, that Mel Watt on Thursday became the first member of Congress to be blocked from a presidential appointment since the Civil War. The two Republican senators who broke ranks to vote for Watt were Rob Portman of Ohio and Richard Burr of Watt’s home state of North Carolina.

Watt has represented North Carolina in the House since 1992. He is a graduate of Yale University’s law school and a veteran member of the House Financial Services Committee. The Federal Housing Finance Agency oversees the mortgage giants Fannie Mae and Freddie Mac.

Republicans said Watt was too political, but Senate Republicans also blocked President Obama’s last nominee to run the same agency. There were no explanations for the votes on the Senate websites of either Fischer or Johanns on Thursday.

Democrats currently have only 55 members, meaning they need the votes of at least five Republican votes to reach the 60-vote threshold to break a filibuster or pass a measure requiring a two-thirds majority.

Thursday’s votes might motivate Senate Democrats to reconsider the “nuclear option” rules change that would allow nominations to be confirmed with only 51 votes.  Vice President Joe Biden, who was in the Senate on Thursday to swear in its newest member, Democratic Sen. Cory Booker of New Jersey, said he supported the change.

In a statement after the votes, Majority Leader Harry Reid also seemed to signal a willingness to reconsider the rules change.

Last summer, Democrats were so frustrated with the inability to advance executive branch nominees, that they began considering the nuclear option. It was dropped when Senate Republicans agreed not to block non-judicial appointees and then voted on several Obama nominees.

“I will exercise my right as Majority Leader to reconsider these nominations at some point in the very near future,” Reid said in his statement Thursday. “I hope my Republican colleagues will reconsider their continued run of unprecedented obstructionism. Something has to change, an I hope we can make the changes necessary through cooperation.”

Republicans wasted no time repudiating the idea of a rules change, generally describing the possibility as an unprecedented power grab.

Update: In the Nov. 1, 2013, edition of the Omaha-World Herald, Joseph Morton quoted Johanns as saying that the D.C. court’s workload did not justify another judge and that Watt was not qualified for the job.

“The level of sophistication in terms of working with the financial sector — I just didn’t see it,” Johanns was quoted as saying. ” This is one of the most complex jobs in the federal government, it truly is, and it deals with trillions of dollars. Personally, I wouldn’t be qualified for such a job.” (See: Senators derail two Obama nominees, Nov. 1, 2013, omaha.com)