LGBTQ+ INTEREST GROUPS

One question that should be asked first is why examine LGBTQ+ groups specifically over other groups? These groups and the community more broadly are a growing portion of the population as well as both historically and currently a politically significant group that will be affected by policy issues actively being debated on by politicians. Transgender Americans face constant attacks, and the relationship between LGBTQ+ rights and morality politics on the right make these groups particularly salient (Cigler, Loomis, and Nownes Reference Cigler, Loomis and Nownes2015; Haider-Markel and Meier Reference Haider‐Markel and Meier2003; Jones Reference Jones2022; Nownes Reference Nownes2010).

Although similar to other groups in terms of how they seek to achieve goals and the benefits they can provide to members, LGBTQ+ interests do have some particularities that make them slightly different. Historically, these groups have relied on two venues to pass favorable legislation: the courts and the states. They have relied on the courts to such a great degree that 57% of LGBTQ interest groups file amicus briefs, which is higher than almost every other organized interest (Schlozman, Verba, and Brady Reference Schlozman, Verba and Brady2012). This is understandable, as the goal of these interests is to always look for forums where there is the greatest likelihood of victory and there is an expectation that court decisions will not be altered, making it the safest path for these groups (Collins Reference Collins2013). The judiciary provides the greatest lasting benefit without the risks that come with legislation (can be altered or fail to be passed) or with executive orders (can be removed by the next president hostile to their interests), so historically the courts were one of the more attractive options.

At the state level, although LGBTQ+ groups have been able to slowly gain ground over time, the process produces mixed results. The slow march toward acceptance of gay marriage across states was drawn out and only brought to an end when the Supreme Court stepped in (Obergefell v. Hodges 2015). Some states were early trend setters for LGBTQ rights, states like Massachusetts, Vermont, and Hawaii for example, whereas others lagged behind and did not allow the acceptance of gay marriage until the Supreme Court’s ruling in Obergefell (Haider-Markel Reference Haider-Markel2001). Even today, although the focus has shifted away from the gay marriage debate, the rights of transgender Americans are under attack in some states while being protected in others. States, although able to provide victories in some cases, can be very hit-or-miss when it comes to advancing LGBTQ+ rights.

Although queer interests have found the most success in the courts and at the state level, it does not mean that have completely ignored the role of Congress. The relationship between campaign donations and voting behavior is contested within the literature (Canes-Wrone and Gibson Reference Canes-Wrone and Gibson2019; Fleisher Reference Fleisher1993; Gordon Reference Gordon2001), but LGBTQ+ interests still have some of the highest spending out of any interest group. Like other interests, they want to reward friends who already favor their preferred policy outcomes as well as lend support to the political party that has polarized in their favor (Brunell Reference Brunell2005; Hall and Wayman Reference Hall and Wayman1990). It should be noted that the literature points out there still has been a noticeable absence of favorable LGBTQ+ legislation for nearly two decades despite publicly increasing support (Bishin, Freebourn, and Teten Reference Bishin, Freebourn and Tetan2021). This anti-LGBTQ+ success in Congress may have slowly eroded, leading to some of the success we see later due in the 2020s due to turnover within Congress (Karol Reference Karol2012).

Although states and courts have been the most successful venues, LGBTQ+ interest groups have not always been in agreement as to which venue they would find the most success in. Organizations like the National Gay and Lesbian Task Force failed to maintain a presence on the federal level in the 1990s during the height of successful anti-LGBTQ+ policy being passed in Congress in Don’t Ask Don’t Tell and the Defense of Marriage Acts. Instead, this organization turned toward changing policy at the state level, working in state courts and state legislatures (Engel Reference Engel2007).

THEORY AND HYPOTHESES

LGBTQ+ groups have not historically gone through Congress and instead have relied on other venues for victories. When these groups do feel it is necessary to switch venues, whether it be due to inconsistencies in success or perceived growing hostility by a previous venue, how likely is it for these groups to find success in their new venue of choice? In the case of LGBTQ+ groups it is the growing hostility of the federal courts due to new judicial appointments that are marking the end of their use of the courts as the venue of their choice. Yet, shifting to the venue of Congress, it is unlikely that LGBTQ+ groups will find success there either. The existence of unfavorable constituencies already operating and influencing other members of Congress as well as the existence of unfavorable institutional structures will make it unlikely that they can leverage much influence on members of Congress.

I theorize that donations to politicians will have less of an effect because partisanship already explains how these legislators will vote regardless of how much money LGBTQ+ interest groups spend on them, and with no history of convincing opposing legislators of the merits of their interest, they have few relationships on the other side to start out with, making it that much more difficult. When issues as politically salient as the ones surrounding the LGBTQ+ community come before Congress, party and ideology will explain votes in favor.

I argue that the perceived hostility in the previous venue is marked by 2018, in particular the retirement of Anthony Kennedy from the Supreme Court. Despite the court being composed of a majority of members appointed by a party hostile to LGBTQ+ rights, Kennedy was a key swing vote in favor of them (Smith Reference Smith2018). Upon his leaving office and the appointment of Justice Kavanaugh, the Supreme Court could no longer be relied on as a potential avenue for the advancement of queer rights. I expect to see an increase in donations to members of Congress following this but not necessarily an increase in significance. Although I expect there to be some correlation between party and vote choice at any period surrounding LGBTQ+ rights, I would expect there to be a large jump in correlation following the forced change because the new venue is the only venue open to success.

Contributions, once used largely to reflect members who already supported LGBTQ+ interests, will matter significantly less in later bills because regardless of whether these groups are donating to members of Congress, as long as that member of Congress is a Democrat they will vote in favor of LBGTQ+ interests. As this issue has become more polarized, Democrats will not be willing to break ranks and vote against LGBTQ+ interests. These interests might still donate, but their donations will not matter relative to party. Adding variables for party identification among members of Congress will reflect that donations explain very little as to why voters cast votes in favor of LGBTQ+ rights. Instead, partisanship and ideology will explain why votes in favor of these interests occur. The nature of highly polarizing issues like LGBTQ+ rights will make these party-line votes.

The last hypothesis I am drawing focuses on whether each member of Congress voting on these bills is a member of the LGBTQ+ community. I would assume that if they are an open part of this community, they will be more likely to vote in favor of these bills regardless of partisan affiliation.

VARIABLES AND DATA

The data used within the models relies on several legislative votes in Congress over about a 30-year span, from 1993 to 2022 (Anstett Reference Anstett2024). Congress was not typically the venue for queer issues; instead, it was largely left up to the courts and the states to make determinations. (Bishin, Freebourn, and Teten Reference Bishin, Freebourn and Tetan2021; Taylor, Lewis, and Haider-Markel Reference Taylor, Lewis and Haider-Markel2020). Although nine bills may seem like a small collection, this legislation marks nearly the entire extent of major flagship queer legislation Congress has taken up over the past three decades. Included is the Defense Authorization Act for 1994, the Defense of Marriage Act of 1996, Local Enforcement Hate Crimes Prevention Act of 2009 (and the Shepard/Byrd Hate Crimes Act that was done through Senate cloture), Don’t Ask Don’t Tell Repeal of 2010, the Employment Non-Discrimination Act of 2013, the Equality Act of 2021, Respect for Marriage Act of 2022, and the Global Respect Act of 2022.

All the above legislation passed at least one chamber of Congress. Although pro- or anti-LGBTQ+ legislation that failed to pass either chamber or got stuck in different committees may provide additional insight, the goal was to focus on the most prominent pieces of legislation. In many cases, proposed pro- or anti-LGBTQ legislation may simply be position taking on the part of the member of congress. Only a very small portion of bills are passed into law, and very few are seriously considered (Lazarus Reference Lazarus2013). They may never receive a vote by the full chamber or even by the committee the bill was sent to, and that proposed legislation would fail to have any congressional votes attached to it.

For the early bills, the DADT and DOMA were the two that became law in the 1990s and, in response, the eventual repeal of DADT (Snell Reference Snell, Brettschneider, Burgess and Keating2017). The Shepard/Byrd cloture motion in 2009 and the Employment Non-Discrimination Act of 2013 are the two pieces of legislation that only passed the Senate. The Local Law Enforcement Act of 2009, Equality Act of 2021, and Global Respect Act of 2022 are the only ones to pass just the House. All other pieces of legislation passed both chambers of Congress.

The data gathered include members of Congress, their registered party, how they voted on specific legislation (either pro- or anti-queer) from the Congressional record. Voting for pro-LGBTQ+ legislation does not always correlate with voting yes on a bill; in 1993 and 1996 voting against the bill correlates with pro-queer sentiment (see figure 1). The data also includes the amount of donations they received from LGBTQ+ interest groups within the Congress the legislation passed in (gathered from Opensecrets.org). These donations are from contributions from PACs and individuals to federal candidates for Congress. They include organizations like the Human Rights Campaign, Gay & Lesbian Victory Fund, Log Cabin Republicans, and the Arcus Foundation (see table A4 in the Appendix for summary statistics). It should be noted that donations are both measured toward inflation, and the most common amount donated from these groups was 0 dollars in every piece of legislation. Their ideological score is from that given Congress (from Voteview) and whether they are a part of the LGBTQ+ community.

Figure 1 Breakdown of Pro and Anti-LGBTQ Votes by Bill and Party

For finding out whether a member of Congress was a member of the LGBTQ+ community, I gathered more recent data from the Congressional LGBTQ+ Equality Caucus page and historical records. This is of course, a complicated process for measuring open members within Congress. Some members have chosen not to come out while serving in Congress, instead waiting until afterward, and some have not come out at all until after they passed away and it became open knowledge. Some members never openly come out, making it hard to measure true LGBTQ+ legislation support among members who would be included within the community. Regardless, using what data is available I compiled a list and included it within the data set.

There are two variables, one labeled as LGBTQMember and another labeled as OUTLGBTQ. The first includes all recorded members of the LGBTQ+ community in Congress, and the second is a variable that only includes members of Congress who were out at the time of voting on that specific piece of legislation. Members of Congress who came out after voting on a piece of legislation or even after they retired from Congress completely are not categorized with the openly queer members within this second variable.

A notable comment, there are only 41 votes on LGBTQ+ legislation from LGBTQ+ members. Of these 41 votes, 40 are from Democratic members, and the one Republican vote is from Representative Gunderson (R-WI), who was publicly outed by his colleague (Casey Reference Casey2019). The only two votes of the 41 against LGBTQ+ rights came from the Defense Authorization Act of 1994. Of the 15 members who make up the 41 votes, they come from only 10 states (Appendix, table A2).

MODEL AND RESULTS

The models I am using to analyze my results use fixed effects for bills and standardized coefficients to make judgements across time. The final model is as follows:

$$ {\displaystyle \begin{array}{l}\hskip-3.12em ProLGBTQ={\unicode{x03B2}}_0+{\unicode{x03B2}}_1\mathrm{Donations}+{\unicode{x03B2}}_2\mathrm{Party}+{\unicode{x03B2}}_3\mathrm{DW}\\ {}\hskip6.12em +{\unicode{x03B2}}_4\mathrm{LGBTQMember}+{\unicode{x03B2}}_5\mathrm{Gender}+{\unicode{x03B2}}_6\mathrm{Race}\\ {}\hskip6.12em +{\unicode{x03B2}}_7\mathrm{BillFE}.\end{array}} $$

Where voting in favor of LGBTQ+ legislation can be determined by the effect donations have (measured to inflation of most recent bill and rounded to whole integer), whether they are a member of the Republican or Democratic party (binary variable), their ideological score on a left-to-right scale, whether they are openly a member of the LGBTQ+ community when voting, if they are a woman (binary variable), if the member of Congress is a minority (binary variable), and specific fixed effects of individual pieces of legislation.

The model below (table 1) shows results split into two distinct regressions. One for all LGBTQ+ bills before 2018 and the perceived necessity to switch venues and one for all bills after. There are some noticeable results on display. First, concerning donations, although central in explaining why a member of Congress may have voted in favor of LGBTQ+ rights pre-2018, it completely falls off post-2018. Party becomes a major explanation for pro-LGBTQ votes. It is significant in the bills pre-2018 but becomes an even greater factor in bills post-2018.

Table 1 Model Results

Note: Standard errors in parentheses.

^***p<0.01; ^**p<0.05; *p<0.1.

Ideology through the DW Nominate scores also provides some interesting results. In bills post-2018, there is a decrease in how liberal a member of Congress has to be to vote in favor of LGBTQ+ rights, which coincides with a growth of the importance of party. What is also noticeable is that being an openly queer member of Congress is not a statistically significant factor in explaining pro-LGBTQ votes. The race of the member of Congress is never a significant predictor and while gender initially is, it completely disappears in later legislation.