White House Intent on Accentuating the Positive

Melody C. Barnes, one of President Barack Obama’s top advisors, doesn’t do politics. She does policy.

That point was made several times at a rare meeting between a top administration official and nine reporters from the LGBT print and online media, held July 1 in the Eisenhower Executive Office Building, immediately adjacent to the White House.

Barnes, who heads up the president’s Domestic Policy Council, did not attend a critical meeting held shortly after Obama reiterated his pledge to end the military’s Don’t Ask, Don’t Tell policy during his January 27 State of the Union speech — a gathering at which deputy chief of staff Jim Messina reportedly disappointed advocates by laying it on the line that repeal would not be taken up in the annual Defense appropriations process. Her absence means she can’t speak to the politics at play in that meeting.

Nor was Barnes comfortable addressing the question of why LGBT voters should feel motivated to turn out for this November’s midterm congressional elections.

But Barnes, whose portfolio contains a broad swath of domestic policy concerns, certainly keeps a calendar — and knows how few days Congress will be in session prior to the fall elections.

Probably enough for the full Senate to approve the compromise incorporating contingent Don’t Ask, Don’t Tell repeal language into the Pentagon budget authorization bill already approved by the full House and the Senate Armed Services Committee. But likely not enough for the two houses to take up the long-stalled Employment Non-Discrimination Act, widely thought to be bogged down in uncertainty about whether there are sufficient votes to beat back a Senate filibuster, particularly over the inclusion of gender identity protections.

Keenly aware of what she obliquely referred to as “the time that’s left,” it’s not surprising that Barnes’ comments, in a roundtable that lasted almost exactly one hour, provide a telling roadmap for what Obama partisans and Democrats generally are going to be emphasizing in gay fundraisers, LGBT Democratic clubs, handbills circulated in select neighborhoods, and targeted email messages as November approaches.

The shorthand will go something like this: The progress already achieved through unilateral executive branch action is unprecedented in American history. The enactment of hate crimes legislation in 2009 — eleven years after the nation was staggered by the murders of James Byrd, Jr., an African-American man in Texas, and Mathew Shepard, a gay man in Wyoming — ought not be discounted. Even if congressional action on Don’t Ask, Don’t Tell has not yet delivered an unambiguous end of the policy, the gay ban has certainly been set on a smooth glide path toward repeal. And, don’t worry, we won’t let up in 2011 in our commitment to enact ENDA. Or whatever exactly it is that we’ve promised you on family equality, either.

Barnes’ comments on ENDA, in fact, may have been the most revealing moments in the session. Pressed on how Obama will be able to advance issues the LGBT community is increasingly making noise about with just four months until the midterms, Barnes began her answer in the same way the administration often does when asked about its priorities — by pointing to the other end of Pennsylvania Avenue.

“The leadership will have to decide what they’re… how they’re going to be able to use floor time to move things forward,” she said of Congress’ top Democrats, before essentially conceding the unlikelihood that ENDA will move soon: “But one thing I would also say — none of us are naïve, but the end of the Congress also doesn’t reflect the fact that bills are never going to move and never going to pass… We will continue to work and continue to push on this.”

The comments made by Barnes about hate crimes also suggested that the White House is eager to end up on the right side of the glass half-full/ half-empty divide this fall, whatever the disappointments over progress.

“I’ll be honest on this one,” she said. “I think a lot of people have kind of banked that one, and said, ‘Oh that’s nice that we’ve gotten that one done,’ and moved along.” Then, noting that she served as chief counsel to the late Senator Ted Kennedy when he first introduced hate crimes legislation in the 1990s, she added, “That one is kind of personal to me.” She acknowledged that when she and other Kennedy staffers worked on both hate crimes and ENDA, they were somewhat “naïve,” thinking that hate crimes “would be the easy one.”

In brief introductory remarks made prior to taking questions, Barnes emphasized the administration’s record in having “advance[d] the ball through executive action… what we have control over” — and in so doing, having “taken more steps and made more progress in regards to the LGBT community than past administrations have.”

Among the achievements she noted were the end of the ban on HIV-positive travelers from other countries entering the US (though that process was in motion by the end of the Bush administration); a change in federal policy working its way through the public rule-making traps that will open up same-sex partner visitation rights at nearly all American hospitals; a reform eliminating evidence of sex reassignment surgery from the list of required documentation for transgender passport holders seeking to change the gender indicated; new efforts by the Department of Housing and Urban Development to investigate and combat discrimination, including treating gender identity bias as sex discrimination, already covered by federal law; and the extension of some partnership benefits to federal employees in same-sex relationships.

The president, she said, had instructed all agency and department heads to “scrub their authority” to enhance what could be achieved through administrative action.

Having emphasized executive branch initiatives, Barnes faced her toughest questioning over complaints that Obama has failed to exert sufficient leadership to ensure forward momentum on the community’s agenda in Congress. Asked about the widely shared narrative that the president was pulled reluctantly into addressing Don’t Ask, Don’t Tell in the Pentagon budget process only in the final week of May, Barnes said of Messina’s edict on that score nearly four months before, “I wasn’t a part of the conversation that was had with the president regarding the politics around Don’t Ask, Don’t Tell. I have been part of the conversations with the president sitting in the Roosevelt Room behind closed doors with just my colleagues, and he has said there what he’s also said publicly, that Don’t Ask, Don’t Tell is discriminatory, we’re doing a disservice to our military… [that] we need to repeal Don’t Ask, Don’t Tell, and [he] has directed his senior staff to move forward consistent with that belief.”

On ENDA, Barnes was asked whether Obama was willing to call congressional leaders out for inaction in the next several months.

“Well, if he were doing that,” she responded, “there would be a whole laundry list of things that the House and Senate are not moving on.” Nobody doubts that the president faces enormous challenges and that prioritizing goals is essential. Still, few LGBT advocates would be energized by hearing as curiously passive a formulation of the administration’s posture toward Congress as, “When they are talking about moving forward with ENDA, they are also getting an indication from us that we support it.”

Given that stance, repeal of the Defense of Marriage Act, a step that the president supports, even as he steadfastly refuses to endorse marriage equality, certainly seems well down the road in this administration’s thinking. Barnes, in fact, paraphrased comments by New York Democratic Congressman Jerrold Nadler, the sponsor of repeal legislation in the House, to the effect that “there’s more education and more work that needs to be done to move this forward.”

On the HIV epidemic, Barnes said the administration would be rolling out its promised National AIDS Strategy, developed in part through 14 outreach meetings held across the country over the past year, “in the very near future.” That effort, she said, “would be reflective of the promise that the president made during the campaign that we would have a domestic focus on this issue, [that] far too many times in the past, the focus has been only on the international, without recognition of how serious this issue is in the United States.”

With waiting lists nationwide for the AIDS Drug Assistance Programs administered by each of the states for the benefit of low-income Americans typically not eligible for Medicaid or Medicare reaching a record level of nearly 1,800 (due largely to shortfalls in state budgets), Barnes noted that the administration is recommending an additional $20 million in funding next year, on top of an increase of $20 million in the current fiscal year. Total expenditures next year of roughly $855 million will allow ADAP programs to serve an additional 3,389 over the existing client base that Barnes estimated at 150,000.

As of press time, however, the White House had not provided specifics on what the administration might be planning in terms of closing the existing gap prior to a new federal budget being approved.

[Editor’s note: Subsequent to the publication and posting of this story, Health and Human Services Secretary Kathleen Sebelius, on July 9, announced that $25 million in reallocated funds would be made available to the ADAP program beginning on August 16. Tara Broido, a spokesperson for the HHS Office of Public Health and Science, confirmed that the $25 million is in addition to the $20 million dollar increase in the current fiscal year and the proposed hike in next year’s budget.]

Although Barnes conceded that the administration had to accept the continuation of some federal funding of abstinence-only HIV prevention efforts as part of finalizing a deal on health care legislation, she emphasized, “This president has been very clear from the beginning of this administration, actually during the campaign and prior to that, that he is supportive of evidence-based sex education, that abstinence-only programs have not been proven to be effective, and what we want to do is to put federal funding and federal support behind what is effective.”

To the extent that the questions posed to Barnes betrayed exasperation on the part of the assembled LGBT journalists, it was clearest on the issue of the administration’s defense of DOMA and Don’t Ask, Don’t Tell in the federal courts. Asked about the positions taken by the Department of Justice in court filings and also about its failure to give community advocates better notice when such bad news is in the offing, she explained, “The president believes that given his office he has to defend the law,” but acknowledged that in the wake of criticism of an early DOJ filing on DOMA, the administration had doubled down in its next brief in expressing the view that the law is discriminatory.

Barnes argued that if Obama cherry-picked which laws to defend, a future administration could well choose not to go to court to battle a challenge to the hate crimes statute.

As she emphasized the president’s view that DOMA and Don’t Ask, Don’t Tell are discriminatory, Barnes was asked if he thought they were constitutional. She declined to answer, but an aide later followed up to say that the president had not “spoken to” that question. However, in explaining why the administration feels compelled to defend those laws in court, Barnes said, “We believe it is our obligation to defend a law if Congress had a rational basis for passing a law.” If the Department of Justice is making the case that the correct standard of judicial review for such laws is the rational basis test, Barnes probably delivered the administration’s answer, even if she did not say so.