Police reform was done even before it started in the U.S. Senate.
It quickly became clear early last week that Democratic senators were just never going to allow the Senate to start the debate on a police reform bill, crafted by Sen. Tim Scott, R-S.C. Democrats viewed the legislation as partisan. A senior Democratic source characterized the measure as a “hollow” effort to curb police abuse.
Senate Minority Leader Chuck Schumer, D-N.Y., never formally coached his members to block Scott’s bill.
He didn’t have to.
“The Republican bill does nothing, nothing, to reform the ‘use of force’ standard,” said Schumer on the Senate floor Monday afternoon. “Nothing, nothing on qualified immunity. Nothing on racial profiling.”
Schumer warned senators about Democratic resistance to Scott’s legislation.
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“If we pass a bill that’s ineffective and the killings continue and police departments resist change and there’s no accountability, the wound in our society will not close. It will fester,” argued Schumer. “It is truly a matter of life and death.”
Schumer later accused Senate Majority Leader Mitch McConnell, R-Ky., of creating “a cul-de-sac from which no legislation can emerge.” The New York Democrat called Scott’s bill “irrevocably flawed.”
Here’s the process which killed police reform:
The Senate is known for its “unlimited debate.” But there’s a way to get around that debate: doing something called “invoking cloture.” Cloture curbs debate and allows the Senate to finish a given piece of legislation. Otherwise, a debate can go on indefinitely. A cloture vote to finish debate on legislation requires 60 yeas.
Most Senate bills are subject to two rounds of cloture. There’s a vote at the end to terminate all debate on a bill. But, that “unlimited debate” also applies at the front, too. The Senate just can’t automatically jump onto a bill – unless all senators agree. If a senator or a group of senators hold things up, the Senate needs to vote to “proceed to the bill.” Otherwise, the debate — just to get to the debate – is stuck. Debate about the debate is unlimited, too.
McConnell knew Democrats had reservations about Scott’s legislation. McConnell set up the test vote to proceed to Scott’s bill for Wednesday. The Kentucky Republican was essentially daring Democrats to block the Senate from initiating debate on the bill.
In the end, the vote was 55-45 to end debate. Five votes shy of the 60 vote threshold to trigger the debate.
McConnell actually voted yea initially to start debate. But he changed his vote at the end to be on the “prevailing side” of the issue: the nays. The Senate allows members to call for a revote on an issue if they cast their ballot on the winning side. Thus, McConnell could call up the bill again – if there is any movement on police reform.
But, that was that for a legislative solution to police abuse on Capitol Hill.
Even so, the next day, the House of Representatives advanced its own police reform legislation, 236-181. All 233 Democrats were ayes. There were three GOP yeas, too: Reps. Fred Upton, R-Mich., Will Hurd, R-Texas, and Brian Fitzpatrick, R-Penn.
The House measure was similar to the package drafted by Scott. But, as Schumer observed, the bills diverged. The Senate legislation didn’t outright bar chokeholds. It didn’t limit “qualified immunity” which shields officers from civil and criminal penalties. It didn’t go as far as the House wanted to set up a database to track rogue officers.
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“The Senate bill is sham, fake reform,” said House Judiciary Committee Chairman Jerry Nadler, D-N.Y. “It gestures. It uses some of the same words. But it does nothing real.”
House Speaker Nancy Pelosi, D-Calif., even intonated that she’d be willing to send the House Democrats’ bill to a House/Senate conference committee. That’s where the sides negotiate the differing bills approved by both chambers and try to forge a final, blended bill.
But that’s not going to be an option so long as the Senate can’t pass a bill. That’s why Pelosi’s declaration cost her little political capital. And, Democrats could play to their base, noting that the Democratic House approved a police reform measure and the Senate couldn’t — even if Democrats torpedoed the measure in the Senate.
How many times have we seen this before on a major issue of the day?
Consider the energy for years after every mass shooting. The 1993 Long Island Rail Road shooting. Columbine. Virginia Tech. Sandy Hook. Parkland. Las Vegas.
There are protests. There is noise. There are press conferences.
And Congress hasn’t advanced a gun bill of any consequence in years.
How about the effort to repeal and replace ObamaCare? That’s practically all Republicans campaigned on for years. Yet GOPers were soundly rejected at the Supreme Court and never moved a bill to repeal and replace the law in Congress.
Still, there was all sorts of noise and energy about torching ObamaCare. Some of that continues today as the Trump administration is trying yet again to get the Supreme Court to end ObamaCare, once and for all.
And so, police reform now enters the same political purgatory. Lots of political oxygen. But the issue is deadlocked in Congress.
However, the protests after George Floyd were different. Sure, there were protests on the streets of Philadelphia and New York. But there were even days of conflagration between Black Lives Matter protesters and counter-demonstrators, in tiny Bethel, Ohio, a town of 2,000 people, 35 minutes east of Cincinnati.
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It’s one thing for protests to echo in big cities. But resonance in Bethel, Ohio, speaks volumes.
“People are not in the streets chanting, ‘We want more data! We want more data!’” thundered Sen. Cory Booker, D-N.J., on the Senate floor. “The bill Leader McConnell wants to put on the floor is called the Justice Act. It belies its name because it does not in any way even serve as a starting point or even a baseline for negotiations.”
This was ironic, because in order to start negotiations, both the House and Senate must approve bills to engage in a conference committee. But Democrats short-circuited that effort hastily, blocking the Senate from even starting debate.
Of course, it may be natural that Democrats prefer to have police reform as an “election issue.” They’ve already portrayed the GOP-run Senate as a “legislative graveyard” – even if Senate Democrats were the ones burying the Republican police bill. Democrats believe they have a good chance at winning control of the Senate this fall. So, if the political winds blow their way, Democrats think they can write and craft their own unified bill and advance it through a Democratic House and Senate themselves next year.
But if Democrats do control the Senate in 2021 and attempt to advance a police reform bill, here’s one thing that’s a near-certainty: it’s unlikely Democrats will have 60 votes.
Forty-seven senators currently caucus with the Democrats. Democrats need just a net win of four seats to control the Senate 2021. If Democrats run the table – holding current Democratic seats, defeating vulnerable senators ranging from Sens. Martha McSally, R-Ariz., to Thom Tillis, R-N.C., and even toppling McConnell, Democrats probably only have 56 seats at best. That’s four short of 60 to shut off a filibuster. And it’s very possible that Senate Republicans could return the favor, blocking a possible motion to proceed on a police reform bill crafted by Booker and Sen. Kamala Harris, D-Calif.
This is why it’s hard to see how police reform emerges from political purgatory, perhaps mired down there with other radioactive issues like abortion, guns, and repealing and replacing ObamaCare.
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“This has been a brutal summer,” said Rep. Anthony Gonzalez, R-Ohio, as the House debated its bill on Thursday. “And it’s only June.”
There may be more rallies in the streets. More confrontations with law enforcement. Shouts to defund the police. But a legislative solution may remain elusive on Capitol Hill as long as the parliamentary math doesn’t work.