President Joe Biden’s agenda for his first 100 days can’t be criticized for a lack of ambition. But as key components of his policy priorities, from raising the national minimum wage to wage discrimination against workers with disabilities, have fallen victim to the filibuster, stakeholders in the Equality Act—one of his key legislative goals—grew increasingly frustrated with the White House’s white-knuckle commitment to an item that never appeared on his long list of commitments to voters during the campaign: confirming Neera Tanden as director of the Office of Management and Budget.
For reasons both high-minded and mundane, Tanden’s nomination to the position hung by little more than a single thread, pinched in the ambivalent fingers of Sen. Lisa Murkowski (R-AK) after nearly every moderate Republican in the Senate, as well as Sen. Joe Manchin (D-WV), said that they wouldn’t vote to confirm her. On Tuesday, Tanden announced that she was withdrawing her nomination, despite White House Chief of Staff Ron Klain’s promise that the administration was “fighting our guts out” for Tanden’s confirmation, no matter the vanishingly long odds.
Outside the administration, however, advocates for more popular priorities—and, arguably, more important ones—are concerned that their agenda items were left to buckle under the weight of the now-foiled efforts to bring Tanden across the finish line.
The Equality Act is a landmark piece of legislation that would make it illegal to discriminate in employment, housing, public accommodations and services on the basis of sexual orientation or gender identity. The bill, which Biden steadfastly supports and has been introduced in some form or another in every congressional session since the mid-1970s, faces its best chance at passage in decades this year, and is the most important single item on the LGBTQ political agenda.
“I will make enactment of the Equality Act a top legislative priority during my first 100 days,” Biden said in the final week of the presidential campaign. “This is essential to ensuring that no future president can ever again roll back civil rights and protections for LGBTQ+ individuals.”
The act passed through the House of Representatives last week, albeit by a narrower margin than it passed in 2019, and now faces stiff headwinds in the U.S. Senate, where a filibuster appears near-certain unless Democrats can bring over ten Republican senators. Now, LGBTQ stakeholders are concerned that the Biden administration threw too much of its heft behind the doomed venture of Tanden’s nomination.
“Neera’s confirmation is sucking the air out of the actual legislative Biden agenda,” one major—and majorly frustrated—backer of the Equality Act told The Daily Beast hours before Tanden withdrew. “Eighty percent of America supports the Equality Act. Eighty percent of America has no idea who the fuck Neera Tanden is.”
Initial concerns were raised when the Biden administration rolled out the U.S. Citizenship Act, a sweeping immigration package that would reshape the naturalization process, on the same day that the Equality Act was reintroduced in the House of Representatives. The Citizenship Act was greeted by a blitz of press calls, briefings, and was framed by Biden’s signing of three immigration-related executive orders. The Equality Act, however, received no such P.R. push from the White House—no handouts, no briefing calls for reporters, and little guidance about legislative strategy beyond a statement from the president that he urged Congress “to swiftly pass this historic legislation.”
“Every person should be treated with dignity and respect, and this bill represents a critical step toward ensuring that America lives up to our foundational values of equality and freedom for all,” Biden said in the statement.
Biden worked hard to woo LGBTQ voters during the Democratic presidential primary by noting his own historic commitment to expanding civil rights—particularly during the battle for marriage equality. His first five weeks in office have seen a number of major victories for the movement, from ending the ban on transgender troops in the military to instructing foreign service officials to promote and protect the rights of LGBTQ people overseas.
“President Biden has demonstrated a strong commitment to transgender Americans, beginning on his first day in office,” said Rodrigo Heng-Lehtinen, deputy executive director for the National Center for Transgender Equality. “Both the president and vice president have made clear their support for the Equality Act and for ending discrimination against LGBTQ people.”
But the legislative history of LGBTQ equality is one defined largely by disappointment, with policy victories coming years or even decades after public consensus has settled in the movement’s favor. The Equality Act is no outlier: Gallup polls over the decades have found that a solid majority of Americans have believed that gays and lesbians should have the same job opportunities as heterosexuals since 1977.
“This bill enjoys enormous public support,” said Liz Seaton, the policy director of the National LGBTQ Task Force. “Discrimination is the problem, and the Equality Act is the answer. I think we expect a full-court press by everyone who cares about ending discrimination, including the White House.”
“The Biden-Harris team campaigned across the country on this legislation—they said they would make it their top legislative priority,” Seaton said. “They have a fresh chance to bring the full power of the White House behind this legislation, and as far as we know, the best information that I have is that their support for this legislation is strong.”
Biden’s allies in the Senate are equally confident in Biden’s support—and in his understanding that his campaign’s promise to a key Democratic constituency is borderline unbreakable.
“The president of the United States has made clear he wants to pass this bill in the first 100 days,” said Martina McLennan, a spokesperson for Sen. Jeff Merkley (D-OR), the bill’s lead sponsor in the Senate. “This White House has shown every indication that they understand that President Biden will be judged on results, so the senator is confident that we can find a pathway to pass this bill and that the White House will help get it done.”
Ten Republican votes is still an extremely tall order, even for a hugely popular bill, and there have been concerns that some LGBTQ organizations hampered their ability to work both sides of the aisles when they went back on past endorsements of LGBTQ-friendly Republicans to support Democrats who failed to win. The Equality Act, which passed the House with eight Republican votes in 2019, garnered only three this time around, and has lost Sen. Susan Collins (R-ME) as its lone Republican co-sponsor in the Senate. Other moderate Republicans seen as possible supporters, including Sens. Mitt Romney of Utah, Rob Portman of Ohio and Murkowski, have either declined to weigh in on the bill or have implied that it would need revision in order to win their support.
The White House has pushed back hard against the notion that its continued support for Tanden’s nomination, and the nearly all-encompassing effort to pass the American Rescue Plan, have in any way distracted from its other legislative priorities. Asked by a reporter whether the Tanden nomination was getting more force than other waylaid administration priorities like the minimum wage, White House press secretary Jen Psaki said on Monday that the question was “mixing a few things kind of irresponsibly.”
Asked about those concerns as they relate to the Equality Act, a White House spokesperson directed The Daily Beast to the president’s statement released on the day of its introduction, “which makes our commitment clear.”
But even Tanden, in a statement released on Tuesday evening, expressed concern that the continued consideration of her nomination could be “a distraction from your other priorities.”
The question of confirming Tanden and passing filibuster-proof legislation were, of course, not totally symmetrical. It’s easier to win over one Republican senator to vote for Tanden than 10 to vote for the Equality Act, after all, and insistence that the administration walk and chew gum at the same time can be grating when the gum in question is a $1.9 trillion relief plan in the midst of a pandemic.
But the American Rescue Plan, slimmed down or not, still appears likely to pass in one form or another—whereas the growing consensus in Washington was that when it came to the Tanden nomination, it was all over but the crying weeks ago.
“Shalanda Young did an excellent job today,” said one aide on the Senate Budget Committee, regarding the confirmation hearing of the woman who was intended to be Tanden’s deputy at OMB but who has been seen as a likely replacement. “She didn’t have to apologize to Bernie Sanders for being a Russian sleeper or anything.”