With the mayhem of the election and a legacy of Republican obstruction, it can be hard to remember that Congress still exists and is a functional institution. It still has business to get done before 2016 is over, including passing the National Defense Authorization Act (NDAA) — the must-pass bill that funds the military. Currently, there’s still a massive anti-LGBT amendment attached to the NDAA that doesn’t have anything to do with the military, and Sen. John McCain (R-AZ) is in a position to decide its fate.
How did we get here?
Back in May, Rep. Steve Russell (R-OK) proposed an amendment to the NDAA that Republicans on the House Armed Services Committee approved in a post-midnight session without holding any public hearing. The simple-sounding amendment requires that the federal government grant religious exemptions to any corporation that it contracts with. One of the immediately obvious consequences would be that it would override President Obama’s 2014 executive order protecting the LGBT employees of federal contractors from discrimination.
As a coalition of groups opposed to the amendment described the amendment, it “would authorize taxpayer-funded discrimination in each and every federal contract and grant.” And because it doesn’t just specify LGBT people, the religious exemption would indeed be so broad that it could also be used to justify taxpayer-funded discrimination against employees who use birth control, who have had an abortion, who have had premarital sex, who are pregnant but not married, or who simply have any different religious view than their employer.
And the exemption wouldn’t just impact federal contractors, but also every grant, cooperative agreement, subcontract, and purchase order awarded by any federal agency. Its license to discriminate could thus extend, for example, to many hospitals and universities.
The Russell Amendment prompted a number of skirmishes in the House, particularly when Republican leadership refused to reconsider removing the provision on the House floor. Democrats tried to retaliate in other bills, which led to a particularly chaotic moment when an amendment from Rep. Sean Patrick Maloney (D-NY) cancelling out the Russell Amendment almost passed. Though the vote clock had run out, Republican leadership kept whipping votes until it flipped enough to defeat Maloney’s amendment, prompting cries of “Shame! Shame! Shame!” from the Democrats.
House Republicans like Rep. Steve King (R-IA) even taunted Democrats by proposing additional anti-LGBT provisions to other legislation. When the dust from all the sparring settled, however, the only LGBT-related amendment that was left on the table was the original Russell Amendment attached to the NDAA.
Both the House and the Senate passed the NDAA, but the Senate’s version did not include a parallel to the Russell Amendment. That brings the situation to today, where the bill remains in conference between the chambers, with the Russell Amendment one of the only conflicts remaining between the two versions. Also a source of conflict stemming from NDAA riders and provisions: a dispute over whether the sage grouse should be removed from the endangered species list.
The conference committee
The conference process on the bill is overseen by the “Big 4,” the chairs and ranking members of the House and Senate Armed Services Committees. That means it’s up to Sens. John McCain (R-AZ) and Jack Reed (D-RI) and Reps. Mac Thornberry (R-TX) and Adam Smith (D-WA) to decide how to resolve the inconsistencies between the two bills
ThinkProgress reached out to all four lawmakers seeking comment on the Russell Amendment and the conference process. Only Congressman Smith originally offered a comment for the record. “This kind of discriminatory language is inappropriate anywhere, but it’s especially wrong to put unrelated anti-LGBT language in a national security bill,” he told ThinkProgress. Highlighting how the provision is so divisive it almost lost to Maloney’s amendment, he remarked, “Why we’d keep in a provision like that when we’re trying to pass the NDAA is beyond me.”
Shortly after this post was published, ThinkProgress also received a comment from Sen. Reed’s press secretary, Chip Unruh. “Senator Reed supports protecting religious liberty and opposes provisions that would discriminate against American servicemen and women based on their gender or sexual orientation,” Unruh said. “This particular provision has nothing to do with national defense and it could undermine existing federal nondiscrimination rules.” The Human Rights Campaign (HRC) has awarded Reed a 100 percent score for the positions he has taken on LGBT issues, including support for the Equality Act, which would prohibit the exact kind of discrimination that the Russell Amendment allows for.
Rep. Thornberry refused to comment on the negotiations, but his position is quite clear. He voted for the Russell Amendment when it was in committee, and has a score of 0 from HRC.
That’s two against and one for, leaving Sen. McCain as the deciding vote. It seems that he alone has the power to decide whether the Russell Amendment remains in the conference bill that the Republican-controlled House and Senate will have to approve in the “lame duck” session after the election.
Though McCain refused to respond to ThinkProgress’ inquiry, he has commented on the bill. Back in September, the negotiations stalled, leaving McCain to conclude, “I think it’s pretty obvious that we’re going to have to go to lame duck,” he said, but he blamed the stalled negotiations on the bird, not the discrimination. “Sage grouse! It’s the major impediment. It’s terribly frustrating.” But the Russell Amendment hasn’t been resolved yet either, and if McCain supports keeping it in, it would be a blatant act of hypocrisy.
That’s because in 2014, McCain’s home state of Arizona considered SB 1062, a nearly identical provision that would have allowed for any kind of discrimination for religious reasons, including anti-LGBT discrimination. Like the similar bill that followed in Indiana in 2015, there was nationwide backlash against the Arizona legislature and pressure for then-Gov. Jan Brewer (R) to veto the bill. Among those encouraging her veto was McCain.
I hope Governor Brewer will veto #SB1062
— John McCain (@SenJohnMcCain) February 24, 2014
And when she did eventually veto it, McCain applauded.
— John McCain (@SenJohnMcCain) February 27, 2014
“I hope that we can now move on from this controversy and assure the American people that everyone is welcome to live, work and enjoy our beautiful State of Arizona,” he said in a statement at the time.
McCain, who is up for re-election, is also trying to navigate his appeal to conservatives while distancing himself from Donald Trump, who he called “a bigot and a racist” who is “unfit” to serve as Commander In Chief. When recordings emerged of Trump bragging about groping women, McCain said it would be impossible to offer him even conditional support. This week, he attacked Trump again for being unwilling to concede the election if he loses.
But among the forms of bigotry Trump supports is religious discrimination against LGBT people. Last month, Trump told social conservatives that he would sign the First Amendment Defense Act (FADA) if lawmakers sent it to his desk. FADA, which has not advanced in either the House or Senate, is basically a more narrowly tailored Russell Amendment that allows for anti-LGBT discrimination for religious reasons. By supporting the Russell Amendment, McCain would be contradicting his own past position on such measures in order to do something that would actually move him closer to Trump.
The fate of the bill
The results of the closed-door negotiations likely won’t be known for several more weeks. Congress returns for its lame-duck session on November 14 and will have about four weeks to consider the NDAA and all its other pending business for the year.
If McCain allows the Russell Amendment to advance, President Obama could still veto the NDAA. Indeed, back in May, the White House issued a Statement of Administration Policy on the House NDAA, which included a veto threat concerning many of its provisions, including the Russell Amendment. “The Administration strongly objects to section 1094,” the statement read, “which would undermine important protections put in place by the President to ensure that Federal contractors and subcontractors do not engage in discriminatory employment practices.”
But if McCain remains consistent with his past position on the issue, the only thing he’ll have to worry about is that sage grouse.
UPDATE: This post has been updated to include a comment from Sen. Reed’s office.