Barney Frank

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Yes.

Mr. FRANK of Massachusetts. I thank you, Mr. Speaker. I was confused, Mr. Speaker, because I had to go up to the Rules Committee and I came back and I heard the gentleman from California saying stop throwing money at the problem, that's not the way to solve the problem. And when I think about what we're throwing money at, I assumed we were talking about the Defense bill and Iraq and reconstruction, because so much money has been thrown at that, none of us can keep track of it. Then it turns out he's talking about a relatively small increase in CDBG. I certainly agree we should not solve problems by throwing money at them. That, however, led me to think we must be talking about the bill that spends so much more money than anything else and that has had more documented waste and abuse and fraud, the Defense bill and the Iraq spending, than all the other appropriations bills put together. As to this bill, now that I know what we're talking about, not to be taken for granted on the floor of this House, I want to be congratulate the gentleman from Massachusetts for doing an excellent job with the limited resources he was given, far too limited. There is an increase in here for the Community Development Block Grant program. The President apparently wanted to continue his path of reducing Community Development Block Grants, having them be lower than they were years ago when he came into office. In fact, that is a very important program for our municipalities, and I am very pleased to see that it is not being reduced. As to section 8, every year when the Republicans were in power, we would approach the point when we were running out of section 8s. And as a member of the committee that has the authorization role here, we would hear from Members, Democratic and Republican, about the importance of keeping this going. Now, I agree it should be improved. And what we have done here in this House, we began something last year but we finished it this year and sent it to the Senate. We passed a bill we called SEVRA, the Section 8 Voucher Reform Act. So, yes, we think there should be reform. This House has passed on a bipartisan basis, support from everybody in the authorizing committee, a bill to improve it. So we are trying to make things better. And I guarantee you that you will not find anywhere under HUD, and I know a lot about that department, anything like the wanton expenditure waste that we have seen in Iraq and elsewhere. What the gentleman from Massachusetts has done in the housing area is sensibly to respond to important needs. I particularly want to say earlier this year, the Secretary of HUD, Secretary Jackson, asked me to meet with a group called ADAPT. These are people who represent people with disabilities. They were concerned about the availability of section 8 vouchers for people with disabilities, particularly those who may have been turned away from public housing projects. In response to that, in collaboration, the bill we have today increases that pool of vouchers. Now, they're not earmarked for that group, and we will have further conversations about how to deal with that, but there are additional vouchers here that the Secretary of HUD came to me and said, look, will you listen to this group and try to respond? And these are vouchers that respond to their needs. I thank the gentleman from Massachusetts. I wish he was able to throw money at the problem. I wish we had a set of priorities in this country that were more respectful of genuine human needs. But given the limited resources he has, he and his subcommittee have done an excellent job.

Mr. FRANK of Massachusetts. Is the subject matter of that HUD or Defense?

Mr. FRANK of Massachusetts. Prior to my speaking, Mr. Speaker, I have a parliamentary inquiry.

Mr. FRANK of Massachusetts. Are we debating the Defense appropriations bill here?

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Madam Speaker, during the debate on the Employment Non-Discrimination Act, critics of the bill--both those who objected that it did too little and those who claimed that it did too much--made a number of arguments about the bill that were flatly wrong. Fortunately, under the leadership of the chairman of the committee, the gentleman from California Mr. Miller, and the Chairman of the subcommittee, the gentleman from New Jersey Mr. Andrews, the staff of that committee did a first-rate report rebutting those inaccurate criticisms. Often, reports of this sort, while reflecting a great deal of work, are ignored. In this case, Professor Dale Carpenter, a law professor who has been an excellent source of accurate information about the true meaning of the legislation, called attention to the committee staffs work in a recent internet posting. Madam Speaker, as Professor Carpenter points out, ``This sort of legislative history does not dispose of controversies over the meaning of ENDA. But it does offer a reasonable and persuasive interpretation of the bill that will likely play a role in future litigation. The committee legal counsel who worked on this report anticipated many of the objections to ENDA from President Bush's advisors and from transgender and gay activists . . . They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive.'' Madam Speaker, in the interest of disseminating in the widest possible way the accurate interpretation of ENDA that is reflected in this report, the importance of which is underlined by Professor Carpenter, I ask that the part of Professor Carpenter's posting dealing with the report be printed here. Excerpt from Professor Dale Carpenter's internet posting: Little noticed in the run-up to the House vote was the Labor Committee report that accompanied the bill. The report was prepared by attorneys who work for the committee. Much of the report is devoted to recounting the history of the numerous attempts over the past 33 years--beginning with the first bill introduced by Bella Abzug in 1974--to get Congress to deal with anti-gay employment discrimination. That history tells a story of painfully slow political progress made in each session of Congress, with more co-sponsors backing an anti-discrimination bill in every session. Other parts of the report document the prevalence of anti-gay job discrimination, as well as the economic and psychological impact of such discrimination. In the section-by-section analysis of the committee report, I noticed a couple of passages relevant to the recent controversy over adding ``gender identity'' to the bill. On p. 31, the report notes that ENDA forbids discrimination based on ``actual or perceived sexual orientation.'' Thus, ``ENDA creates a cause of action for any individual--whether actually homosexual or heterosexual--who is discriminated against because that individual is `perceived' as homosexual due to the fact that the individual does not conform to the sex or gender stereotypes associated with the individual's sex.'' Obviously, this interpretation of ENDA offers some protection to those employees whose gender nonconformity leads others to assume they're gay or lesbian and then suffer discrimination on that basis. It doesn't protect transsexuals or crossdressers as fully as adding ``gender identity'' to the bill would have, but the bill moves in that direction. Additionally, on p. 33, the report puts to rest any fears that stripping ``gender identity'' from the bill would lead federal courts to conclude that Congress meant to impliedly reverse Price Waterhouse v. Hopkins, a 1989 case in which the Supreme Court held that sex stereotyping violates Title VII. The report concludes that Section 15 of ENDA, entitled ``Relationship to Other Laws'': Preserves provisions in other Federal, state, or local laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any other way affect any U.S. Supreme Court or other federal court opinion that has interpreted Title VII in such a way that protects individuals who are discriminated against because they do not conform to sex or gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female plaintiff brought successful Title VII claim after she was denied partnership in an accounting firm because she did not conform to female sex stereotype); Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff brought successful Title VII claim after he was subjected to a hostile work environment because he failed to conform to a male stereotype).'' This sort of legislative history does not dispose of controversies over the meaning of ENDA. But it does offer a reasonable and persuasive interpretation of the bill that will likely play a role in future litigation. The committee legal counsel who worked on this report anticipated many of the objections to ENDA from President Bush's advisors and from transgender and gay activists disappointed that the bill isn't more comprehensive. They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive. ENDA is the product of decades of work by gay advocates whose efforts once seemed quixotic. In 1974, Abzug's bill had only four co-sponsors and was completely ignored by the House Judiciary Committee. Yesterday 235 members of the House backed the same basic idea.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, everybody wants to deal with the problem of the AMT, but only some of us are prepared to deal with it responsibly and realistically, namely, by an alternative revenue source. You look at the taxes that are being reduced here and the offsetting taxes that are being raised, and it is the most extraordinary piece of tax fairness I have ever seen. The one argument is that we can't afford that fairness because if we raise taxes to the normal level that people pay on income on the wealthiest people in the history of the world that they will stop doing what they do. Now, I do not criticize these people. I think they perform a useful economic function. But they are the wealthiest people in the country and in the history of the world on the whole. The notion that they have to pay somewhat more tax up to the level that most of us pay on income, they will somehow go on an economic strike and stop doing these things is badly flawed. They are not engaging in this activity as a favor to us so that they can quit if we offend them. They are doing it because it's a way for them to make money, as they have a right to do. They'll still be making enough money to keep doing it.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. I yield to the gentlewoman from Florida (Ms. Brown-Waite).

Mr. FRANK of Massachusetts. I rise in opposition to the motion to recommit.

Mr. FRANK of Massachusetts. Mr. Speaker, first my friend from West Virginia said, well, we would be displacing the private insurance market. We have fellow citizens represented here who are trying desperately to find that private insurance market. This is hardly a case of our intruding in a perfectly functioning market. And then the amendment bans cross-subsidies; it bans cross-subsidies that do not exist. The CBO report: ``Assuming the appropriation of the specified amount CBO estimated in implementing this provision would cost $75 million over the next 5 years.'' That's the total on one provision. On the other provision: ``CBO estimates that loans made under the bill would have an insignificant cost over the next 5 years. Enacting H.R. 3355 would not affect direct spending or revenue.'' So there is no taxpayer expenditure; so there is no subsidy. Then as to cross-subsidy, it is very carefully worded. It says: ``No cross-subsidizing in any geographic region.'' It doesn't say across State lines because that could not happen. No State is in this program unless it volunteers to get in. So now, apparently, the worry is that north Florida will subsidize south Florida. I think we leave that to Florida. One last point. Many of my colleagues have had this button, article I. This does not attempt to change the program substantively. It does not try to deal with the subsidies because they're nonexistent. It says: ``The Secretary of the Treasury has to certify.'' It is a very disturbing provision. It gives to a Secretary of the Treasury, who might be ideologically opposed to this, the power to kill the program voted by both Houses of Congress. If it said the Secretary could make a report and we would consider it, that would be one thing. But there is no taxpayer subsidy, according to CBO. There is no interstate involvement unless the States have volunteered to get in. And then it says that these nonexistent hazards will stop the program. And it doesn't say, by the way, that the Secretary stops it if he certifies it's causing a problem. He has to certify the negative. He has to certify that it's not causing the problem. To give that kind of power to the Secretary on a carefully drafted bill that already says no subsidy, that bans any interstate involvement unless the States want to, is just a way to kill the bill. I do not think that it's fair to our colleagues from Florida on both sides of the aisle who have brought this forward and colleagues from other States who may want to join. The worst thing about this is the title: ``Prohibiting Cross- Subsidization from Middle America.'' Well, the gentlewoman left out apple pie and the flag, but all of them are irrelevant to this bill. If Middle America doesn't want to be in this bill, it simply stays out of it. There is nothing here that would coerce any State to be involved. So Members can safely vote against this recommittal and know that Middle America will sleep soundly tonight without having to subsidize the State of Florida. Mr. Speaker, I yield back the balance of my time.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. I want to express my appreciation to the gentleman, both for the cogency of the points he raised, because we want this to work well, and he has helped us both previously and today in refining this. I also appreciate his courtesy in helping us move this. I thank the gentleman from Illinois.

Mr. FRANK of Massachusetts. I appreciate it and I appreciate the gentleman's cooperation. I would just say, to move this along, as the gentleman from Florida responds, he will be speaking for the committee leadership. These are matters on which we have some general agreement that work needs to be done. I won't have to say this every time, but when the gentleman from Florida gives you that assurance, it comes from the committee leadership as well.

Mr. FRANK of Massachusetts. I appreciate that. I also appreciate the fact that today no Republicans object to you withdrawing the amendment.

Mr. FRANK of Massachusetts. I thank the gentlewoman. I appreciate the initiative, and she's clearly right in concept. We would say that this bill, we hope, will pass today, but it's not going to pass the Senate until we come back early next year. We do obviously hope to get this bill in place before the next hurricane season so we could get started. But that would give us time to work on this before our final passage was done. And as the gentlewoman understands, because she's been involved herself, the State-Federal issue can become complicated. So while we very much agree on the substance, we don't want to engender a kind of State-Federal issue which could go beyond Florida. This is obviously something for all the States. So with that in mind, it's a common objective, indeed. We think the gentleman from Connecticut's amendment goes in that general direction. But we really want to be very careful about the State-Federal-local interactions here. So if the gentlewoman is agreeable, we would be working with her between now and some time in March or April when we finally hope to get this bill done so we can improve these kinds of requirements, but in a way that isn't going to jeopardize the whole thing by a big Federal- State dispute.

Mr. FRANK of Massachusetts. Mr. Chairman, will the gentlewoman yield?

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, I want to apologize to Dawn Dawson. Ms. Dawson is a thoughtful young woman who was engaged in a lawsuit involving a charge of discrimination based on sexual orientation. An organization in the dispute we had about the scope of the Employment Non-Discrimination Act, in my judgment, misquoted the holding in that lawsuit. In the course of refuting that, I quoted some passages which reflected somewhat negatively on Ms. Dawson. I should not have done that. There is no reason to make any negative inference about her. It was in a legal context which does not support factually any negative response. Ms. Dawson called me after that, came to see me. I was impressed by her grace, by her thoughtfulness, and by her commitment to working for a better America for all of us. So I want to express my regret that I brought this young woman into this dispute for no good reason. She deserves much better from me, as she deserves from all who are concerned about fairness in this country. And as I said, I apologize to Ms. Dawson. I continue to believe that the organization with which I was disputing misinterpreted her lawsuit, but that was not her fault.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. The response is ``no.'' I was ready to yield to make this ``forthwith'' so this extra language which does nothing could be added. But if you don't do that, as they won't, and you vote for this, you are killing this bill. Understand that. Nine days later it is too late for this bill and we are out of this. So I will close with this. Yes, this is personal. There are people who are your fellow citizens being discriminated against. We have a simple bill that says you can go to work and be judged on how you work and not be penalized. Please don't turn your back on them.

Mr. FRANK of Massachusetts. I asked the gentleman a simple question.

Mr. FRANK of Massachusetts. Before I begin, I have an inquiry: If I could yield to the gentleman from Virginia, the proponent of the motion, would he consider my making a unanimous consent request to change this to a ``motion of forthwith,'' so the House could simply adopt this ``forthwith'' and go to dinner?

Mr. FRANK of Massachusetts. Well, this is now clear. This is a motion to do this promptly. ``Promptly'' means at the speediest nine calendar days, because it does not, as the Parliamentarian has informed us in writing, waive any of the rules for committee meetings, for Rules Committee, et cetera. So the purpose here, the intent, perhaps not the purpose, but the unmistakable intent would be to put this off until after we are due to adjourn November 16. And for what purpose? For the purpose of restating what has already been stated. It is interesting, Mr. Speaker, and I take some encouragement from this, that opponents of the principle of nondiscrimination don't want to debate it on its merits. We haven't heard any defense of discrimination. We just have a parliamentary maneuver to protect it. This is not about marriage. In fact, this is not a recommit. It is a statement. It says ``nothing in this act may be construed.'' Correct. No one who reads English could think to the contrary. But, just to make sure, the gentleman from California offered a motion, and the minority tried to have it not be roll-called, and you voted for it, Members of the House. It says, ``As used in this act, the terms `married' or `marry' refer to marriage as defined in section 7, title I of the U.S. Code, the Defense of Marriage Act.'' The Members of the House just voted overwhelmingly to reaffirm that definition. So what do we have? A motion now simply to delay by reaffirming the last vote. The gentleman from Indiana thought there was some other language that might lead to a marriage problem, so we adopted that. So this is the third effort to say the same thing. It is not to say the same thing, but to defeat it. I would say this. I would recommend to my friend from California, who has done such a good job on this, once we have concluded this, report this out as a separate bill, this third reiteration, if it gives people some comfort. I asked the gentleman to make it ``forthwith.'' If there was a real need to do this, it would be now part of the law and we would be voting. It is ``promptly'' because it adds nothing to the bill, nothing, literally nothing; it subtracts nothing. It is simply a motion to delay. I now want to address that. I want to address the motion to delay. Mr. Speaker, we say here that we don't take things personally, and usually that is true. Members, Mr. Speaker, will have to forgive me. I take it a little personally. Thirty-five years ago, I filed a bill to try to get rid of discrimination based on sexual orientation. As we sit here today, there are millions of Americans in States where this is not the law. By the way, 19 States have such a law. In no case has it led to that decision. The Massachusetts law passed in 1989, that did not lead to the decision in 2004. Unrelated. But here is the deal. I used to be someone subject to this prejudice, and, through luck, circumstance, I got to be a big shot. I am now above that prejudice. But I feel an obligation to 15-year-olds dreading to go to school because of the torments, to people afraid that they will lose their job in a gas station if someone finds out who they love. I feel an obligation to use the status I have been lucky enough to get to help them. I want to ask my colleagues here, Mr. Speaker, on a personal basis, please, don't fall for this sham. Don't send me out of here having failed to help those people. We have already today twice voted overwhelmingly to repudiate any suggestion that this had anything to do with marriage. What you have is a ploy by people who want to keep discrimination on the books, who want to deny protection to so many vulnerable victims of discrimination, but they at least understand that is not something you can say explicitly. So they give us this sham. I ask, I ask again, would the gentleman allow us to adopt this forthwith? I would yield to the gentleman for that purpose so we can make that forthwith.

Mr. FRANK of Massachusetts. Is it in order to demand a roll call before the Chair has put the voice vote?

Mr. FRANK of Massachusetts. Parliamentary inquiry.

Mr. FRANK of Massachusetts. Mr. Speaker, I rise in opposition to the motion to recommit.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Will the gentleman yield?

Mr. FRANK of Massachusetts. Yes. The rule gives the opportunity to the supporters of including transgender inclusion the right to make that decision, not its opponents.