ANALYSIS — In all likelihood, the question now is not whether Congress will act in response to the killing of George Floyd in Minneapolis by a police officer, Derek Chauvin, but who will the voters blame because it failed to act?
In Washington, the policing debate has entered the realm of the political, with Election Day now just four months away.
There’s still a chance that Senate Republicans will alter their policing bill, drafted by South Carolina’s Tim Scott, in an attempt to win over the five additional Democrats they need to at least begin a debate on it. But it’s just as likely, if not more so, that they will seek to make a case to voters that they took the issue seriously, offered a response and were stymied.
In casting 45 votes against the Scott bill, Senate Democrats and Vermont independent Bernie Sanders indicated that they’re willing to make their own case to voters: that the GOP bill was so deeply flawed that it would not have made any difference at all in protecting African Americans from police brutality. They are saying it was not worth passing, even if only as a stopgap measure until such time as Democrats have full control of Congress and the White House and can do more.
In their rhetoric leading up to the 55-45 vote on July 24, five short of the 60 necessary to begin debate on the measure, senators seemed more interested in honing their political points than in fairly assessing their policy differences.
The Scott bill offered to restrict chokeholds; gather and publicize data on misconduct by individual police officers, making it harder for a fired officer to find work at another department; and collect data on how often the police kill people. It was not bipartisan, but three senators in the Democratic caucus — Doug Jones of Alabama, Joe Manchin III of West Virginia and independent Angus King of Maine — joined a united GOP in voting to begin debate on it.
The Democrats’ House bill proposes to go much further, by making chokeholds potential civil rights violations, barring localities that don’t ban “no knock” warrants, which allow police to raid homes unannounced from receiving federal law enforcement grants, and stripping officers of the immunity that protects them from civil lawsuits. It was not bipartisan either, and when the House passed it 236-181 on June 25, only three Republicans voted for it: Brian Fitzpatrick of Pennsylvania, Fred Upton of Michigan and Will Hurd of Texas.
Still, on June 18, House Speaker Nancy Pelosi said she’d be willing to conference the two bills to reach a compromise solution. And Senate Majority Leader Mitch McConnell promised that if Democrats let the Scott bill move to the floor, he’d allow an open amendment process.
Those ideas rang hollow to Senate Democrats. That’s because the conference committee, once a common method of reconciling competing House and Senate bills, is now rarely used. Complex policy legislation more often emerges from bipartisan deals negotiated by individual members in advance of floor consideration.
Still, McConnell was quick to point out the contradiction in watching his Democratic counterpart, Charles E. Schumer, ask to slow down the legislative process by requesting bipartisan negotiations followed by a Judiciary Committee markup, although Schumer had previously demanded floor consideration by July 4.
“As recently as last week, leading Democrats called it a life-or-death issue for the Senate to take up this issue this month,” McConnell said.
Senate Democrats felt compelled to justify their decision to block the Scott bill, explaining, essentially, that passing it would be worse than doing nothing.
Democrats tried to frame the two bills, both complex with numerous provisions making demands on and offering incentives to the localities that employ most of America’s police officers, in simple terms. The Republican bill, they said, would not have prevented Floyd’s death, or that of other African Americans killed by police. Their bill, had it been in force, would have.
New Jersey Democrat Cory Booker described the measure by Scott, one of two other fellow African Americans in the Senate, as “wholly unacceptable,” adding, “It does not in any way even serve as a starting point or even a baseline for negotiations.”
The other African American senator, Democrat Kamala Harris of California, described Scott’s bill as an “attempt to obstruct real progress and real justice.”
Undoubtedly, the Democratic bill, drafted by members of the Congressional Black Caucus and House Judiciary Chairman Jerrold Nadler, D-N.Y., with input from Harris and Booker, would go further to force changes in police practices, but it’s unlikely that any legislation coming out of Washington could fix policing, which is mostly under the control of state and local governments, once and for all.
Democrats exaggerated when they said their bill bans chokeholds, for instance. It bans them for federal law enforcement officers and threatens funding of localities refusing to do the same. Likewise, their bill would only ban “no knock” warrants in federal drug cases while restricting funding of localities that don’t follow suit. It’s not clear that would have saved Floyd or the other African Americans killed by police.
At the same time, Republicans pointed out that Democrats’ proposal to increase police accountability, by allowing citizens to sue individual officers, would likely have negative side effects. It might prompt officers to be less aggressive in their policing, even at moments when aggression is called for, they said. They argued that crime rates are already growing as officers, cowed by protesters’ criticism, have pulled back.
Still, Democrats see political advantage on the issue, with polls showing overwhelming sympathy for the Black Lives Matter movement and concern about police practices, and with Republicans led by a president who has made race-baiting part and parcel of his campaign strategy.
Schumer stressed that civil rights groups, from the NAACP to the Leadership Conference on Civil and Human Rights, had asked Democrats to vote no on the Scott bill. He scoffed at the idea that voters who’ve watched Republican lawmakers stand by Donald Trump would observe the policing debate and “believe that Republicans are the true champions of racial justice.”
Schumer feels the politics of the matter work for Democrats, and if McConnell agrees, Democrats might just get a bill more to their liking. Schumer said he expected McConnell would reconsider his position after the House passed its bill and the public demanded he do so.
But Republicans have also shifted to politics.
They are trying to refocus the nation’s attention on the disorder that accompanied peaceful protests of Floyd’s death, in the form of property destruction, the pulling down of statues and activists’ demands to defund or abolish the police, and tie Democrats to it.
On the Senate floor, GOP Sen. Tom Cotton of Arkansas delivered a blistering condemnation of “violent mobs” and called on the Justice Department to prosecute them. “When you tear down statues of Washington and Grant … it’s because you hate America,” he said.
McConnell argued: “Far-left radicals have severed any connection to the righteous cause of racial justice.”
For his part, Scott — who has spoken openly of his own run-ins with police, from the time he was called “boy” by an officer who stopped him for a faulty headlight to the time a Capitol police officer accused him of impersonating a senator — seemed resigned to the shift from substance to politics. “If they won’t even start it,” he said of Democrats’ vote on his bill, “that tells me that this is already over.”
For the moment, it seems so. The Senate will return next week to work on the annual defense policy bill, while House Democrats plan to turn to legislation to bolster the 2010 health care law and to approve new infrastructure spending. Policing will be last week’s news.