Fair brokers in both parties and both chambers are at the table, working in good faith to forge a consensus on police reform. It’s heartening, and their efforts are as impressive as they are necessary to advance new rules for law enforcement that a majority of Americans say are badly needed. Yet step back and picture a bill 10 Republican senators would support — and that would be good enough for the left of the Democratic Party — and that picture is clearly … blank.
On Wednesday, President Biden will elevate this issue to millions in prime time during his first joint address to Congress, in the majestic setting of the House of Representatives, likely his largest audience since his inauguration. Behind the scenes, the administration is scrambling to assuage stakeholders as the sensitive negotiations continue against steep odds — Black Lives Matter activists don’t even support the Democrats’ bill while Congress’ most liberal members have already scoffed at the GOP compromise on the measure’s most controversial provision.
Since Jan. 20, President Biden and his fellow Democrats have forged ahead without Republicans, and without the bipartisan results Biden had promised. He and his party are now in go-for-broke mode on every legislative priority. First COVID relief was passed only by Democrats using a special process, known as reconciliation, allowing them to bypass the Senate filibuster. Then the administration announced two massive, costly initiatives it calls infrastructure that could pass late this summer, again, by reconciliation. Those process tricks will be possible only because the proposed transportation projects and social welfare programs are budgetary matters, and since Congress failed to produce both a 2020 and 2021 budget, this is a rare year when the party in power can use reconciliation twice. But Democrats are fighting internally about whether or not to blow up the filibuster since they cannot pass voting reforms or immigration fixes or gun safety legislation with reconciliation. Police reform faces the same challenge.
For now, the ambitious goal of passing the George Floyd Justice in Policing Act is being met with an earnest push for a breakthrough that party leaders are blessing with their distance. Neither House Speaker Nancy Pelosi nor Senate Minority Leader Mitch McConnell is weighing in on negotiations that GOP Sen. Tim Scott has undertaken with Democratic Sen. Cory Booker and his House colleague Rep. Karen Bass. Last week Pelosi expressed her support for Bass’ efforts: “I trust her to keep on the table what can be accomplished,” she said. “I trust whatever they decide.” McConnell said Scott has his full support and added, “I’m hopeful that we’ll find a way forward.”
Democrats filibustered Scott’s bill last year, which would have provided incentives to states that took action against chokeholds and excessive force. Last month only one Republican supported the Democrats’ bill. The Justice in Policing Act creates a national registry for police misconduct, lowers the threshold for prosecution of officers from willfulness to recklessness, and bans no-knock warrants and chokeholds by tying federal funding for local and state police departments to the outlawing of such practices. The major sticking point between the parties remains qualified immunity, the protections afforded police officers from civil lawsuits, which reform proponents say permits them to kill with impunity.
Scott has amended his bill and has now proposed that police departments, and not individual officers, be held accountable in civil suit for incidents of excessive force. Sen. Dick Durbin called it “movement in the right direction,” Booker wouldn’t comment and Bass did not reject it outright. But liberal freshman Rep. Jamaal Bowman did. “Individual police officers absolutely should be held accountable,” he said. Another liberal freshman also said she won’t support Scott’s idea. ”I didn’t come to Congress to compromise on what could keep us alive,” Rep. Cori Bush told CNN Sunday. The president of the NAACP has called the Democrats’ position on qualified immunity “non-negotiable.”
Scott thinks there is enough overlap and agreement that a reform bill can pass. He told CNN, “The two bills are very much similar, in a lot of ways, so why not get what you can get, and fight over what you can’t later?”
But Democrats are already under pressure from reform activists who don’t like their original bill. A group of 150 organizations, which aligned in 2014 as The Movement for Black Lives, argues the Justice in Policing Act is merely a set of incremental changes that doesn’t “address the root causes of police violence and terror.” In a letter to House Judiciary Democrats, the movement stated that the bill, “in its very name, centers investments in policing rather than what should be front and center — upfront investments in communities and people.”
In a new ABC News/Washington Post poll, six in 10 Americans say more must be done to hold police accountable for mistreating black people. The survey found 63% of respondents say black Americans and other minorities are not treated equally to white Americans in the criminal justice system. While it’s conceivable that Scott’s bill could attract nine Republicans to get a consensus measure past a Senate filibuster, it doesn’t mean all 50 Democratic senators will support it and liberal House members seem to have already drawn red lines.
Biden appreciates the urgency of his party’s demands for reform, and has technically moved up the timetable for action. During the presidential campaign, he promised a commission on police reform would commence during his first 100 days. That has been scratched; the commission was quietly killed off last month. Stakeholders expressed concerns to the administration that a commission would delay a push for legislation and could harm prospects for passage.
A bipartisan plan, if Democrats supported one, would help the party mitigate a political liability Biden worries about. Left-wing calls to “defund the police” cost Democrats in down-ballot 2020 races. Political data scientist David Shor reported losses for Democrats among Hispanic and black voters in last year’s election as a result of being tagged as “socialists” who wanted to defund the police. Biden was recorded at a meeting in December saying Republicans “beat the hell out of us across the country” with the issue. Rep. James Clyburn — the highest ranking African American leader in the Congress who is credited with salvaging Biden’s primary campaign and helping him become the party’s nominee — has been explicit in his concerns about such rhetoric. After the election he said that being tagged with “defunding the police” was “killing our party and we’ve got to stop it.”
Last week, after 20-year-old Daunte Wright was shot and killed by police during a traffic stop in Minnesota, House Democratic “Squad” member Rashida Tlaib tweeted, “I am done with those who condone government funded murder. No more policing, incarceration and militarization. It can’t be reformed.”
Biden and Clyburn are keenly aware that Tlaib’s tweet is likely already a part of GOP fundraising letters and will be included in advertisements against Democrats in next year’s midterms. They know Democrats need to pass a bill before then if they expect their voters to return to the polls, and that a bipartisan bill will not be good enough for the left.
Meanwhile, just because Republicans are cheering on Scott doesn’t mean they will vote for his bill. GOP pollster Neil Newhouse told CNN that Republicans will need the issue in the midterm elections more than they need to compromise on a bipartisan bill. “There may be bite-sized pieces that Republicans can go for, but 2022 is probably going to be a lower turnout election — a typical midterm election, which makes it a ‘base’ election,” he said. “It’s hard to see how moving toward a compromise helps motivate your base or even helps win you crossover votes. … Whatever bill the Democrats are pushing forward is probably going to go too far for most moderate Republicans.”
The likelihood is that Scott and his Democratic negotiating partners will fail to convince their parties to compromise – and that too many Republicans and Democrats would rather fight about it now and fight about it later.
A.B. Stoddard is associate editor of RealClearPolitics and a columnist.