Federal Legislation – Chaos on Capitol Hill

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

It’s finally happened. Here in Washington, it’s all anyone can talk about. The headlines have been impossible to escape, and there’s a new development every day. Hot takes have been fired off faster than the presses can print them.

Speaker of the House Nancy Pelosi (D-Calif.) and House Democrats have pulled the trigger and launched an impeachment inquiry into the conduct of President Donald Trump.

The inquiry, thus far, has focused narrowly on a phone call between President Trump and Ukrainian President Volodymyr Zelensky, in which President Trump pressed for an investigation into the former vice president and current Democratic presidential candidate  Joe Biden. Now, the House will conduct its own investigation into whether the president’s behavior reaches the level of impeachable “high crimes and misdemeanors” before deciding whether to send the matter to the Senate for a trial.

While the question of the criminality of the behavior is for the House to investigate and the Senate to decide, there is a separate, equally relevant question: What does this mean for an already dysfunctional Congress and the work it needs to do?

There’s no easy answer. While Speaker Pelosi and Senate Majority Leader Mitch McConnell (R-Ky.) have at least hinted at a desire to keep the wheels of government moving regardless of impeachment, the process will inject a significant amount of instability into what was already a fraught political situation. Important issues such as surprise medical billing and the United States–Mexico–Canada trade deal (commonly referred to as the new NAFTA) negotiated by President Trump were already on tenuous ground; it is hard to see how impeachment improves their prospects.

One deadline, in particular, looms — November 21, when the continuing resolution (CR) passed and signed in September expires and, unless action is taken, the federal government will shut down for the second time this year. While the Senate has been making some progress on its own set of funding bills and the House passed its package in July, there is always the possibility that talks between the Senate, House and President Trump could break down along the same fault lines as they have in the past. An unpredictable impeachment inquiry only adds another unavoidable obstacle.

In addition to the looming possibility of a government shutdown given the November 21 deadline, vital funding for state, local, and tribal law enforcement grant programs administered by the U.S. Department of Justice is also at stake. As such, PORAC has nothing but appreciation for California Democratic
Representatives Josh Harder, Grace Napolitano, Mike Thompson, Jimmy Panetta, Jim Costa, TJ Cox, and Anna Eshoo, all of whom signed on to a letter (reprinted at the end of this article) urging congressional leadership to prioritize law enforcement funding and maintain the high levels of funding passed by the House. PORAC applauds these lawmakers for standing up for the funding that helps law enforcement keep our communities safe. 

House Ways and Means Chairman Richie Neal Introduces WEP Reform Bill

Despite the uncertainty currently permeating Washington, some legislative business has continued. In a notable example, House Ways and Means Chairman Richie Neal (D-Mass.) introduced his long-awaited legislative fix for the Social Security Windfall Elimination Provision (WEP) — H.R. 4540, the Public Servants Fairness and Protection Act — on September 27.

The WEP has long been a target of PORAC and public employee groups across the country. It reduces the Social Security benefit for workers who are receiving a government pension and as such affects most public employees, including teachers and law enforcement officers. While originally envisioned as a way to ensure that government workers did not receive both a pension and a large Social Security benefit, the effect has instead been to deprive state and local government workers, including law enforcement officers, of the benefits they have earned.

The Public Servants Fairness and Protection Act, as introduced by Representative Neal, seeks to fix the current formula. H.R. 4540 replaces WEP with a new formula called the Public Servant Protection (PSP) formula. Rather than the current and rather arbitrary formula, the PSP would base Social Security benefit payments on the percentage of earnings that were covered by Social Security. Additionally, while the PSP itself is delayed in taking effect, H.R. 4540 stipulates that an extra $150 be added to the benefit of every current retiree who is affected by the WEP. Finally, in a key provision, H.R. 4540 guarantees that no current or future retiree will be worse off under the new formula.

H.R. 4540 is not the first WEP reform bill to have been introduced in this session of Congress. In January, Representative Rodney Davis (R-Ill.) introduced H.R. 141, the Social Security Fairness Act. A Senate companion bill, S. 521, was later introduced by Senator Sherrod Brown (D-Ohio). The Social Security Fairness Act would eliminate the WEP entirely rather than make the more technical fixes prescribed by H.R. 4540. PORAC leadership looks forward to discussing each fix to the WEP with members of Congress during its fall advocacy visit to Washington.

PORAC Heads to Washington

At the time this issue went to print, the PORAC Executive Committee was less than a week away from their semiannual fly-in to Capitol Hill. President Brian Marvel, Vice President Damon Kurtz and other PORAC officers are meeting with senators and representatives from the California delegation on a multitude of issues, including, as previously mentioned, WEP reform. In addition, PORAC will be meeting with members of Congress on federal funding, stressing the need for improved relations between law enforcement officers and the communities they serve and registering their opposition to the national use-of-force bill, H.R 4359, which was recently introduced by Congressman Ro Khanna (D-Calif.). PORAC is excited for the opportunity to bring the issues important to its members to Washington and to advocate on their behalf.

Expect a full report on PORAC’s advocacy in Washington in next month’s issue.

 California Representatives’ Letter to Congressional Leadership on Law Enforcement Funding

As previously mentioned, on September 18, Members of Congress Josh Harder, Mike Thompson, Jim Costa, Anna G. Eshoo, Grace Napolitano, Jimmy Panetta and TJ Cox (all D-Calif.) sent the following letter to House and Senate leaders.

Dear Speaker Pelosi, Leader McConnell, Leader McCarthy, and Leader Schumer:

Thank you for your leadership of the U.S. House of Representatives and the U.S. Senate. We appreciate the opportunity to work together to support the American people. With the recess behind us, our attention now turns to crafting a compromise on an end of year funding bill to keep the government funded through the 2020 Fiscal Year. While there are many important issues at stake during this effort, our responsibility to ensure robust funding for the state and local law enforcement officers that keep Californians and all Americans safe is paramount.

This critical funding is provided through a number of federal grant programs and direct spending initiatives administered through the Department of Justice (DoJ). In June, the House of Representatives passed a Commerce-Justice-Science appropriations package that expanded funding for law enforcement over FY 2019 levels. The vital appropriations 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; and
  • $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.

Not only do these programs equip California law enforcement officers with the resources they need to protect communities across the state, but they also provide the means to effectively combat broader issues facing Californians and all Americans.

As the Senate considers its own spending measures, I urge you to resist cuts to law enforcement programs. Day in and day out the brave men and women of state and local law enforcement in California and across the country risk their lives to fulfill their duty and keep their neighbors safe. We must now fulfill our duty, and ensure they have the critical resources they need to do their jobs safely, efficiently, and humanely.

Thank you for your time and consideration regarding this request.

Fall Fly-In

PORAC Advocates for Law Enforcement in the Nation’s Capital

PORAC leaders returned to Washington, D.C., in September for the year’s second round of intensive advocacy meetings with lawmakers. With the federal appropriations process underway, PORAC provided crucial expertise on the importance of public safety funding, as well as strategies to combat opioid abuse and gang violence.

 

Federal Legislation – Lawmakers Listen to PORAC’s Priorities

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
Legislative Assistant
Steptoe & Johnson LLP

Over the course of two days in mid-September, several members of PORAC’s Board of Directors met with more than 25 members of California’s congressional delegation, as well as with the White House and the Senate and House Judiciary Committees, to advocate for policies and principles that will help to ensure public safety.

President Mike Durant, Virginia Tinoco (Ventura County DSA), Representative Salud Carbajal, Director Tony Sanders, Vice President Brent Meyer, and Directors Barry Donelan and Don Morrissey

In addition to meeting with the offices of Senators Dianne Feinstein (D) and Kamala Harris (D), PORAC also met with Representatives Ken Calvert (R-42), Mike Thompson (D-5), Salud Carbajal (D-24), Tony Cardenas (D-29), Jimmy Panetta (D-20), Paul Cook (R-8), Zoe Lofgren (D-19), Linda Sanchez (D-38), Darrell Issa (R-49), David Valadao (R-21), Jim Costa (D-16), Jeff Denham (R-10), Karen Bass (D-37), Eric Swalwell (D-15), Steve Knight (R-25), Scott Peters (D-52), Pete Aguilar (D-31), Lucille Roybal-Allard (D-40), Juan Vargas (D-51), Jerry McNerney (D-9), Doug LaMalfa (R-1), Jared Huffman (D-2), Norma Torres (D-35), Julia Brownley (D-26), Doris Matsui (D-6) and Mimi Walters (R-45). The group also had discussions with Senate Judiciary Committee Majority staff, House Judiciary Committee Minority staff and a special assistant to the president.

Members of Congress and their staffs were eager to hear PORAC’s perspective on a range of issues, because they recognize and respect the Association’s thoughtful and well-informed approach to public policy. As always, advocating for the full funding of critical state and local law enforcement programs was a top priority.

President Mike Durant, Representative Mimi Walters, Director Tony Sanders and Virginia Tinoco (Ventura County DSA)

PORAC specifically urged lawmakers to maintain or increase funding for Edward Byrne Memorial Justice Assistance Grants (Byrne-JAG), the Community Oriented Policing Services (COPS) program, the High Intensity Drug Trafficking Areas (HIDTA) program, and body-worn camera grant programs — providing real-world anecdotes to demonstrate the efficacy and importance of such federal support.

PORAC explained to policymakers how these funding streams are essential for combating two of the most pressing threats to public safety in America today: opioid abuse and gang violence. Regarding each of these growing problems, PORAC offered a number of guiding principles that it believes Congress should abide by when crafting legislative solutions.

On the opioid abuse front, PORAC is advocating for a multifaceted strategy against the scourge, including enhanced border security, more fulsome social services and a crackdown on fraudulent prescribing practices by medical professionals. PORAC also encouraged policymakers to carefully consider the recommendations of the President’s Commission on Combating Drug Addiction and the Opioid Crisis, which were released this month.

On the issue of gangs and gang violence, PORAC stressed the need to increase operational coordination with state and local law enforcement agencies at the preventative, investigatory and prosecutorial levels. The group also articulated its belief that the federal government should be regularly tracking and reporting on the trends in gang presence, characteristics and behaviors so that law enforcement has a more complete understanding of the threat they face.

Above all, PORAC emphasized that lawmakers should not hesitate to use the Association’s expertise and experience as a resource on any issues impacting law enforcement — whether it be through providing testimony, data or a position on specific policy.

Trump Reverses Obama Administration’s Ban on Surplus Equipment to Cops

In late August, President Trump signed an executive order on “Restoring State, Tribal, and Local Law Enforcement’s Access to Life-Saving Equipment and Resources.” The order revokes a policy implemented by President Obama in 2015 that placed restrictions on the types of surplus military equipment that state and local law enforcement agencies are allowed to obtain from the federal government.

Former President Obama’s order halted the transfer of gear, weapons and other devices (such as explosives, battering rams, riot helmets and shields) to state and local agencies, and in many cases required local agencies to return equipment that they had received from the federal government. In fact, since Obama’s executive order, approximately 125 tracked armored vehicles, 140 grenade launchers and 1,600 bayonets have been returned to the federal government.

Trump’s executive order directs all executive departments and agencies to cease applying the previous order and “if necessary, to take prompt action to rescind any rules, regulations, guidelines, or policies implementing” it.

In announcing the reversal of policy, Attorney General Jeff Sessions said that the Obama administration’s “restrictions went too far” and that the Trump administration “will not put superficial concerns above public safety.” State and local law enforcement officials across the country have come to the defense of the surplus equipment program — also known as the 1033 Program — arguing that it provides agencies with advanced equipment that they would otherwise be unable to afford with such limited budgets. Proponents have also pointed to the various public safety applications of this equipment. During the recent flooding in Texas, for example, law enforcement deployed armored vehicles to rescue and evacuate civilians.

President Trump Signs Rapid DNA Act Into Law

Just before Congress returned from its August recess, President Trump signed into law the Rapid DNA Act of 2017. PORAC has long been a vocal supporter of this legislation, although past iterations of the bill have failed to become law, and is very pleased that this important legislation was enacted.

PORAC was encouraged to see that the California congressional delegation played a prominent role in the bill’s passage, with Senator Feinstein (D-Calif.) as the lead co-sponsor of the Senate bill (S. 139) and Representative Eric Swalwell (D-15) as the lead co-sponsor of the House bill (H.R. 510). Additional co-sponsors from California included Jackie Speier (D-14), Mark DeSaulnier (D-11) and John Garamendi (D-3).

The legislation aims to implement the use of Rapid DNA instruments — instruments that are able to derive an automated DNA profile from a DNA sample — to inform decisions about pretrial release, exonerate the innocent and prevent DNA analysis backlogs. Specifically, the law amends the DNA identification Act of 1994 by requiring the director of the Federal Bureau of Investigation (FBI) to issue standards and procedures for the use of Rapid DNA instruments and resulting DNA analyses. It also amends the DNA Analysis Backlog Elimination Act of 2000 by allowing the FBI director to waive the required analysis if DNA samples have been analyzed by means of Rapid DNA instruments.

PORAC Encouraged by Inclusion of Operation Stonegarden Funding in DHS Bill

The Department of Homeland Security (DHS) authorization bill (H.R. 2825), which authorizes funding for DHS and was passed by the House before its August recess, includes robust funding for a program that is critical to combating narcotics and human trafficking along California’s expansive coastline.

Operation Stonegarden supports enhanced cooperation and coordination among Customs and Border Protection, the United States Border Patrol, and state and local law enforcement agencies in their efforts to secure the U.S. border. Funds administered through the program are used for a range of activities that help to ensure border security, including the hiring of additional law enforcement personnel, the payment of overtime to officers working on panga smuggling investigations, and the reimbursement of travel and lodging costs associated with increasing the presence of law enforcement along the border.

PORAC appreciates that California Representative Salud Carbajal (D-24) actively advocated for Operation Stonegarden funding, explaining in a letter to the House Appropriations Committee that this federal support “is particularly important in [his] district along the Central Coast of California where we have seen an increase in small-craft smuggling of narcotics and, in some cases, humans.” H.R. 2825 authorizes $110 million for Operation Stonegarden, although the funds must still be appropriated with the passage of a funding bill.