Back in September of 1996, when the ideological sorting of the country's two major political parties wasn't as complete as it is today, the Employment Non-Discrimination Act, a bill which would have prohibited hiring and firing on the basis of sexual orientation, got 49 votes in the Senate -- 42 from Democrats, seven from Republicans.
That was before Republicans had destroyed long-standing Senate norms governing the deployment of filibusters, so the bill actually came within a single vote of passage, and would have won the day had Sen. David Pryor, D-Ark, not been home attending to his son (and successor) Mark, who was undergoing cancer surgery at the time.
On Thursday, a more expansive ENDA overcame the filibuster it didn't face 17 years ago and cleared the Senate with 64 votes -- a testament to the fact that the country's social liberalization has coincided with increasing revanchism on the American right. In this way, the fight over ENDA tells the entire story of American social politics in the early 21st century.
Yesterday, as in 1996, most Senate Republicans, including party leaders, voted against ENDA. This time, though, they protested the inevitable by imposing a supermajority requirement on it. And of the eight current Republicans who were in office in 1996, and had a chance to take a mulligan, only two did: Sens. John McCain, R-Ariz and Orrin Hatch, R-Utah.
The bill passed, yes. But the majority of Republicans continue to support the proposition that employers should be allowed to fire (or refuse to hire) people on the basis of their sexual orientations. And all but two Senate Republicans voted for an amendment that would have created a loophole in the bill big enough to drive the Westboro Baptist Church through. After it failed, only ten broke ranks to help pass the final Senate legislation. Eight of them were among the same members of the GOP conference who helped pass immigration reform legislation earlier this year.
This splinter group of Senate Republicans recognizes that the right can't fight the changing demographic tide any longer. But they haven't won that argument with the rest of the party. In fact, they are House Speaker John Boehner's second biggest problem. Every politically potent piece of legislation they help Democrats pass paints him deeper into a corner. It clarifies that he, and House Republicans generally, stand alone in the way of efforts to improve the lives of constituencies that Republicans know they can't keep alienating -- minorities, women, immigrants, the LGBT community.
Bills addressing each of these issues would likely pass if Boehner would agree to give them votes. But as more of them clear the Senate, it actually becomes harder for him and the House leadership to make special exceptions for particular ones. If they agree to give ENDA a vote and it passes (which it would) it would deepen the quagmire they've created for themselves by refusing to give immigration reform a vote of its own.
That creates a conundrum for some of Boehner's members (though Boehner himself opposes ENDA). In the past, top House Republicans, including Rep. Paul Ryan, R-Wisc, and NRCC chairman Greg Walden, R-Ore, have backed less expansive versions of the bill. House Majority Leader Eric Cantor, R-Va. -- the only Jewish Republican in Congress -- has spoken and written convincingly about his support for the principle of equality. But internal GOP politics are overwhelming the moral imperative. After ENDA passed in the Senate on Thursday, Cantor's spokesman Rory Cooper gave voice to this tension.
"The bill is currently not scheduled in the House," he said. "I hope Majority Leader Reid soon addresses the dozens of House-passed bills that have been ignored in the do-nothing Senate that create jobs, improve education and create opportunity while Americans struggle to find a good-paying job."
GOP leaders haven't categorically refused to put the bill on the floor. Perhaps they will at some point. But what, then, will they say to Latinos and other immigrant groups, who want the same basic treatment?
The tension wouldn't necessarily end there, either. In addition to immigration reform and ENDA, Democrats want bills pertaining to minority voting rights and equal pay for women on Boehner's desk before election season. So far this Congress, Boehner has refused to break the Hastert Rule unless clear exigencies have required him to. But if the dam were to break, and he decided to put ENDA on the floor, what argument would he make for not getting out of the way entirely. By what principle would he deny some of these constituencies votes but not others?
It would be difficult for him to sustain such arbitrariness. But it's even harder to envision the lower chamber suddenly becoming a clearinghouse for major pieces of progressive legislation. At least not while Boehner's obsessively guarding his own hide. It's much easier to imagine him keeping these bills bottled up and letting voters sort it out.
That's immensely frustrating for liberals. But it should be a reminder to them that all elections -- even midterms -- matter tremendously. This one could be a referendum on the proposition that the United States is quickly becoming a more tolerant country, and the Republican party isn't keeping pace.