Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

Congress, right alongside elementary schools and the NFL, returned in September. It picked up where it left off: squabbling over government funding, gun control and investigations. With 2020 closing in, and campaign season with it, many senators and representatives view these next few months as the last, best chance to pass meaningful legislation. As a result, Congress is scrambling to reach agreements and pass legislation to decrease drug prices, end surprise medical bills, reduce gun violence, establish a renewed trading relationship with our neighbors and fund government activities reflecting the priorities of the American people.

Senate Appropriations Inches Forward

Congress left for its August recess with a loose agreement on topline spending levels for fiscal year (FY) 2020, an agreement designed to prevent a government shutdown on October 1 when the current FY ends. Since returning, in what was perhaps a predictable turn of events, several partisan disagreements are threatening to derail the process. Notably, while the House passed a series of appropriations bills in June and July, the Senate process has been hampered and held up by fights over abortion policy, domestic spending levels and funding for the Trump administration’s proposed border wall. While several funding bills are slowly moving through the Senate Appropriations Committee on party-line votes, it is unlikely that the bills will pass the full Senate without further compromise. 

Law Enforcement in Limbo

The Senate Appropriations Committee has yet to consider the Commerce-Justice-Science (CJS) funding package, which will establish the funding levels for the Department of Justice and the law enforcement grants the department administers, including Edward Byrne Justice Assistance Grants and Community Oriented Policing Services grants. At the time this issue went to print, there is still no draft language for that bill. However, there appear to be fewer disagreements over law enforcement funding than on other issues, creating hope that the relatively high funding levels passed by the House will remain. The House package included:

 

• $530.25 million for Edward Byrne Justice Assistance Grants (compared to $497 million in FY19)
• $323 million for the Community Oriented Policing Services (COPS) program (compared to $303.5 million in FY19)
• $581.5 million to fund the Violence Against Women Act (VAWA)
• $100 million to support survivors of human trafficking
• $2.357 billion for the Drug Enforcement Agency (DEA) to fund additional anti-opioid and gang efforts
• $501 million in assistance to state and local governments for grants authorized by the Comprehensive Addiction and Recovery Act, as well as other opioid-related activities

At the time this issue went to print, Representative Josh Harder (D–Calif.) had taken the lead on defending this funding, circulating a letter to House and Senate leadership urging them to maintain these amounts. 

Averting a Shutdown

In an effort to kick the can down the road and avert a shutdown, Speaker of the House Nancy Pelosi (D–Calif.) and House Democrats are preparing a continuing resolution (CR) to maintain current funding levels for a short-term period, giving Congress more time to pass a full funding package. While Senate Majority Leader Mitch McConnell (R–Ky.) has expressed support for a CR and emphasized the need to keep the government open, obstacles remain. The proposed CR has spurred controversy on account of a provision to temporarily freeze the Trump administration’s relief payments to farmers injured by the president’s trade policies, a provision even opposed by some Democrats. Disagreements over the administration’s border policies have yet to be resolved, although Speaker Pelosi appears inclined to maintain the status quo in the CR. Even if a compromise is reached in Congress, it is unclear how the president will react.

House Judiciary Eyes Policing Practices

While the appropriations process churns forward and takes center stage, Congress will continue to work on other matters throughout the fall. In particular, House Democrats are poised to spend a significant amount of time on policing practices across the nation, introducing legislation and scheduling hearings to tackle perceived problems. At the time this issue went to print, the House Judiciary Committee has scheduled a hearing for September 19 entitled “Oversight Hearing on Policing Practices.” The hearing is set to feature testimony from various law enforcement representatives such as Patrick Yoes, the president of the National Fraternal Order of Police, and Vera Bumpers, president of the National Organization of Black Law Enforcement Professionals, as well as from activists like Reverend Al Sharpton. President Brian Marvel will be submitting testimony on behalf of PORAC. It seems likely that this hearing may serve as a prelude to the consideration of several law enforcement bills that have recently been announced or introduced.

New Legislation Could Impact Law Enforcement Nationwide

One such bill is H.R. 4339, the End Racial Profiling Act of 2019. Introduced by Representative Sheila Jackson Lee (D–Texas) and cosponsored by 55 House Democrats, including Judiciary Committee Chairman Jerrold Nadler (D–N.Y.), the legislation seeks to fully eliminate racial profiling by law enforcement. While Congress cannot directly compel state or local law enforcement agencies to implement new policies, the bill would withhold any federal grants, such as Byrne Justice Assistance Grants, to law enforcement agencies that fail to maintain “adequate policies and procedures designed to eliminate racial profiling.” Under the legislation, those “adequate policies” must include an explicit prohibition on racial profiling, training on the subject, the collection of data and participation in an administrative complaint procedure or independent audit program that meets the bill’s specifications.

Due to the relative broadness of language used, this legislation could lead to potentially far-reaching impacts on how law enforcement does its duty in California and across the nation. While it is possible that this legislation receives a markup and vote in the House of Representatives, there is very little chance that it passes the Senate. Still, the End Racial Profiling Act of 2019, along with other proposals, signals a wider interest in legislation to increase federal regulation of state and local policing practices.

Use of Force Goes National

On the fifth anniversary of the death of Michael Brown — who was killed in a use-of-force incident ruled justified by the Obama-era Department of Justice — Representative Ro Khanna (D–Calif.) and Representative William Lacy Clay (D–Mo.) announced the Police Exercising Absolute Care with Everyone (PEACE) Act of 2019. The bill, which had not been formally introduced at the time this issue went to print, would establish a new federal use-of-force standard prohibiting federal law enforcement officers from using deadly force unless such force was “necessary, as a last resort,” and “reasonable alternatives to the use of force have been exhausted.” As Congress cannot directly dictate the policies of state and local law enforcement, the bill would withhold Byrne Justice Assistance Grants from agencies that do not comply with the new law. In essence, the federal PEACE Act would require law enforcement agencies across the nation to either adopt this new, and potentially deleterious, standard or lose out on vital funds that help them to keep communities safe.

PORAC has serious concerns about the PEACE Act and will be distributing a letter enumerating these concerns to the California delegation when the bill is formally introduced. While PORAC agrees that the loss of even one life is too many, the use-of-force standard reflected in the PEACE Act is highly subjective and will only create new problems threatening the safety of our nation’s families and communities. PORAC is nevertheless eager to continue engagement on this issue at the federal level, working to develop truly effective and achievable improvements to help law enforcement minimize the use of force without harming officers’ ability to effectively carry out their duty.