By their own admission, the Senate Republican conference didn’t fully grasp the widespread problems of racial profiling and abuse in policing until their colleague Tim Scott of South Carolina—the only black Republican in the chamber—told them about the numerous instances, even as a sitting United States senator, when he’s been pulled over for “driving while black.”
That—and an only very, very recent polling spike in support of police reform—might be why the JUSTICE Act, Senate Republicans’ tame opening offer on police reform legislation that’s spearheaded by Scott himself, reads as if this is a relatively new concern area in public policy. The bill focuses on implementing studies, collecting more data, augmenting officer training, and instituting additional reporting requirements to the federal government. Currently there is genuine, bipartisan interest in police reform legislation. But making that happen depends first on whether Democrats decide the bill is workable enough to bother engaging with.
The JUSTICE Act and Democrats’ more expansive counterproposal, the Justice in Policing Act—which the House intends to pass as soon as next week—overlap, at least, on some of the issues.
The Republican bill, like the Democratic bill, ties federal grants for state and local law enforcement to their implementation of chokehold bans. The Republican proposal, though, only applies to holds that cut off airflow; the Democratic bill goes further to include a ban on carotid holds that cut off blood supply to the brain. (Republicans’ language also includes a lawyer-able exception that allows police to use chokeholds “when deadly force is authorized.”) The Democratic bill creates a national database to track misconduct by abusive officers who might try to get a job with a new department; Republicans’ bill incentivizes state-based records retention and appropriate sharing between departments. Both bills would make lynching a federal crime; both would expand the use of officer body cameras; both would require use-of-force reporting from state and local law enforcement agencies.
From there, though, the paths diverge. Democrats’ bill—though considered too lukewarm by many activists and reformers—does offer some meaty reforms in policy spaces where the Republican bill, while meandering off into the nebulous world of commissions for further study and best-practices research, is silent. Republicans offer nothing on restricting qualified immunity for police officers, the legal doctrine that shields abusive cops from civil penalties for violating constitutional rights. Democrats’ bill would eliminate it. Democrats’ bill would also ban “no-knock warrants” in federal drug cases; Republicans’ bill would require more reporting on its uses. Democrats’ bill prohibits racial, religious, and discriminatory profiling; Republicans’ does not. And Democrats’ bill limits transfers of military equipment to state and local police departments, which Republicans’ does not.
In general, Democrats’ bill is both more expansive in its scope and more forceful in addressing problems with federal mandates than Republicans’ bill. That’s exactly what everyone on planet Earth with a rudimentary understanding of American politics would expect. Early reviews from Democratic leaders in Congress of their opponents’ bill were also predictable. Senate Democratic leader Chuck Schumer said that the “Senate Republican proposal on policing does not rise to the moment” and questioned whether Republicans were ready to “vote for a bill that actually solves the problem,” while House Speaker Nancy Pelosi said “the Senate’s so-called Justice Act is not action.” New Jersey Sen. Cory Booker, a co-author of the Democratic bill, described the Republican bill as “heavy on gestures, light on real reforms.”
What Democrats hadn’t done by Wednesday afternoon, though, was shut the door on working to improve Republicans’ bill. “We expect our Republican colleagues to work with us to make significant improvements to any legislation in order for it to pass,” Schumer said on the Senate floor. “We take this very seriously. And as we continue to review the Republican legislation, I will be talking to my caucus about the best way to strengthen it.”
McConnell has queued up a decision point for Democrats on whether they want, in his framing, to “make a law” or “make a point.” The majority leader said Wednesday that the chamber will vote next week on whether to open debate on the Scott bill, a procedural move that will require 60 votes—and, thus, bipartisan cooperation. “I hope [the Democrats] will join us in getting on the bill and trying to move forward in the way the Senate does move forward when it’s actually trying to get an outcome,” McConnell said, “rather than just sparring back and forth.”
In other words: Do Democrats agree to take on the JUSTICE Act, and try to improve it close enough to their liking through amendments? Or do they filibuster it, and then pressure McConnell to take up the eventual House-passed police reform bill instead, trying to blame him for inaction on the issue heading into the election? Democrats will spend the coming days strategizing and seeing whether there are enough Republicans movable in their direction.
The JUSTICE Act is not a perfect expression of each individual Republican senator’s beliefs, and there are Republicans who would like to do more. Kentucky Sen. Rand Paul, who just a couple of weeks ago was holding up an anti-lynching bill in the Senate, told me Wednesday that he was preparing several amendments for next week’s (would-be) debate on policing—one of which would be a ban on no-knock warrants. And Indiana Sen. Mike Braun is preparing to introduce legislation that wouldn’t eliminate qualified immunity, but would at least reform it.
Braun has been an interesting figure in the debate. On Tuesday, he told reporters that he’s been “disappointed that we haven’t as a Republican conference been more aggressive here, and I’ll be disappointed here if we don’t get support behind reforming qualified immunity.”
“It’s a watershed moment,” he said on Wednesday, speaking to the protests and conversations that the police killing of George Floyd have sparked. “We ought to do more than window-dress the issue.” He sees a compromise of real substance on either qualified immunity or no-knock entries as necessary for anything to break through and reach the president’s desk. (Also important to the delicate negotiations: whatever craziness Trump might tweet, at any moment.)
The debate is likely to get stuck, if it isn’t stuck already, with Democrats wanting nothing to do with Republicans’ bill and vice versa. The true test of whether any compromise legislation can pass is whether legislators convince themselves they’re in a “must-pass” environment, as they were when they passed the multitrillion-dollar CARES Act in March. If they can, each party will grind through obstacles and accept voting for a measure that may include elements they strongly disagree with but can live with. If they can’t, the moment for police reform collapses into another bipartisan messaging exercise heading into a presidential election, with Democrats saying Republicans were never serious about reform and Republicans telling the masses of (white, swing) voters who’ve recently come around to police reform that, well, they tried.
