Federal Legislation – Congress Opens; Government (Partially) Closed

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

On January 3, representatives-elect were sworn in for the 116th Congress. After the November 2018 midterm elections, Republicans retain control of the Senate, but Democrats are now the majority party in the House of Representatives. Both parties are eager to begin working on implementing their top legislative priorities. Instead, due to the partial government shutdown,1 members of Congress have been focused on negotiating a funding deal with President Trump.

After Congress failed to pass appropriations legislation to fund the government, several government agencies, including the Department of Justice, closed (other than for essential functions) until they receive funding for the upcoming year. Trump refused to sign any bills that grant money to these agencies unless Congress agrees to at least $5 billion to fund his proposed border wall. Speaker of the House Nancy Pelosi (D-Calif.) and Senate Minority Leader Chuck Schumer (D-N.Y.) had previously proposed $1.6 million for border security, an amount rejected by the president.

Law enforcement agencies were affected twofold by the border funding disagreement: In addition to having federal workers furloughed during the partial shutdown, the DOJ also has not received full annual funding for important law enforcement grant programs, including Edward Byrne Memorial Justice Assistance (Byrne-JAG) and Community Oriented Policing Services (COPS) grants.

Pending an agreement between the president and congressional leadership, Congress has proposed to allocate $30.7 billion to the DOJ — $402.5 million more than in 2018. This includes $2.9 billion for grant programs like COPS and Byrne-JAG. While the appropriations bill that funds the DOJ, the Commerce-Justice-Science (CJS) legislation, has not technically passed through Congress, the chairman of the Senate’s Commerce Justice Science Appropriations Subcommittee, Jerry Moran (R-Kan.), stated that he expects that the final bill passed by Congress will contain all of the proposed DOJ funding.

Senate Judiciary Committee Hears AG Nominee’s Priorities for the DOJ

At his confirmation hearing before the Senate Judiciary Committee on January 15 and 16, attorney general nominee William Barr identified working with state and local law enforcement to combat crime, along with enforcing and improving U.S. immigration law, as some of the DOJ’s priorities under his leadership. Barr also emphasized partnering with state and local law enforcement on combating human trafficking.

While Senate Judiciary Committee Republicans focused on Barr’s stance on U.S. immigration, Democrats wanted a commitment from Barr that he would not undercut Special Counsel Robert Mueller’s investigation and would make Mueller’s findings public. Barr promised not to intervene in the investigation and said that he would publicize “as much as [he could]” of the investigation. Following the hearing, some Democratic senators, including Kamala Harris (D-Calif.), said they would vote against confirming Barr. Other Senate Democrats, however, including Chris Coons (D-Del.), said they were encouraged by Barr’s commitment to uphold the Mueller investigation and would fully consider supporting him. Ranking committee member Dianne Feinstein (D-Calif.) referred to Barr as “bright” and “capable,” noting his impressive background (he served as attorney general under the late President George H.W. Bush). Feinstein has said, however, that her support is contingent on the commitment from Barr that he will make the Mueller investigation public. The Senate Judiciary Committee will likely vote on Barr’s confirmation in the coming weeks.

PORAC’s Legislative Priorities for 2019

In 2019, PORAC plans to engage in robust federal advocacy and build upon its relationships and legislative accomplishments from 2018. A survey was conducted during PORAC’s annual Conference in November, asking members to prioritize which issues were most important to them. Based on the responses and additional discussions with the Board of Directors, PORAC has created a legislative agenda for the upcoming year that includes the following issues.

Fully funding law enforcement grants: Grant programs that award funding to law enforcement are administered by the DOJ (including Byrne-JAG and COPS) and funded by Congress through the CJS appropriations bill (one of 12 annual funding bills that must be passed by Congress and signed by the president in order to fund the government). Throughout 2019, PORAC will continue to work with policymakers to maintain and expand existing grant funding for state and local law enforcement.

Pension reform: Public pension plans are governed by both federal and state laws. Federal developments that could affect public pension systems include legislation pertaining to tax treatment of retirement savings, Social Security, proposals to replace defined-benefit pension plans, and duplicative and costly transparency requirements for sponsors of state and local government employee pension benefit plans. During the last Congress, PORAC met with lawmakers to provide input on bills that would, for example, increase Social Security benefits for public safety officers. In 2019, PORAC will continue to advocate for legislation to reform the public pension system and eliminate provisions that negatively and disproportionately affect law enforcement.

Preserving the use-of-force standard: Under current law, a police officer is permitted to use force to arrest, prevent escape or overcome resistance of a suspect. An officer is allowed to use deadly force if that force is “reasonable” in light of a fear of death or serious bodily harm to the officer or another person. In 2018, the California Legislature considered a measure (AB 931) that would change this standard and only permit use of deadly force when “necessary” instead of when reasonable. Such a standard would restrict when officers would be able to use force, handicapping their ability to do their job and keep communities safe. In 2019, PORAC will assess whether there is a federal nexus to efforts in the states to alter the use-of-force standard.

Labor reform: During the 115th Congress, lawmakers considered bipartisan legislation to establish a minimum set of collective bargaining rights that states would be required to provide to public safety employees. Because collective bargaining has a bipartisan component, we expect similar (and additional) bills to be introduced or reintroduced during the 116th Congress, and PORAC will be actively engaged on this legislation. PORAC will also advocate for reforming the “constructive receipt” doctrine, a federal tax doctrine that requires certain incomes to be taxed, including compensatory (comp) time. Due to constructive receipt, in certain parts of California, police officers are taxed (sometimes multiple times) on income they never physically receive. Because police officers receive comp time instead of overtime, this doctrine is particularly damaging for law enforcement. We plan to advocate heavily for a legislative fix to this issue, which negatively affects many of PORAC’s members.

Reforming the criminal justice system: In the waning days of 2018, Congress passed (and the president signed) the First Step Act,2 a bill to reform the criminal justice system. PORAC opposed this legislation based on experiences in California under Propositions 47 and 57. We expect the House Judiciary Committee to take up additional criminal justice reform proposals this session.

Further, PORAC will advocate for an increase in the number of federal judgeships in California. As federal law requires judges to prioritize criminal cases, the limited number of judges in California’s federal courts leads to a backlog in unaddressed civil cases. Due to law enforcement’s role, police officers are often subject to these unexamined civil lawsuits that linger for years, contributing to stress at home and sapping morale in the workplace. Increasing the number of federal judgeships within California would push these cases more quickly through the legal system, reducing the amount of stress and increasing morale in police officers’ personal and professional life, respectively.

Member requests and overall approach: As always, PORAC will prioritize review of legislation where a legislator from the California delegation has specifically reached out to PORAC for support or consideration. Before advocating for legislation, PORAC thoroughly assesses it and decides whether to take a position. Following this process, PORAC actively advocates for (or against) the legislation and/or works to improve the bill. PORAC will continue to take this same thoughtful approach in 2019 when advocating on behalf of our members to Congress.

 

1Agencies that have been closed since the shutdown commenced on December 21 include the Department of Agriculture, the Food and Drug Administration, the State Department, the Justice Department, the Commerce Department, the Department of Homeland Security, the Treasury Department, the Internal Revenue Service, the Interior Department, the Environmental Protection Agency, the Department of Transportation, and the Department of Housing and Urban Development.

2The First Step Act is a bill that overhauls federal prison and sentencing laws. The bill passed the Senate and the House by sizable margins (358–36 and 87–12, respectively). In a letter of opposition to the bill, written to the House and Senate Judiciary Committee leadership, PORAC asked Congress to delay passage of the First Step Act in favor of taking a more measured approach, and drafting legislation that takes into account California’s experience with Propositions 47 and 57 and the impact those propositions have had on PORAC’s members and the citizens of California.