Federal Legislation – Amid Uncertainty, PORAC Goes to Washington

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

As fears over the coronavirus grew, and only hours before congressional offices largely closed their doors to outside visitors, the PORAC Executive Committee spent two days in Washington, D.C., speaking to lawmakers and policymakers about the needs of law enforcement officers across the state of California. March 11–12, PORAC Executive Committee members met with 24 offices from the California delegation to the United States House of Representatives, the offices of both California senators, three different Senate and House committees, members of the Attorney General’s Office, Assistant Attorney General Katie Sullivan, and Phil Keith, director of the Community Oriented Policing Services (COPS) program and chair of the Presidential Commission on Law Enforcement and the Administration of Justice. Throughout these meetings, PORAC relentlessly advocated for the issues and needs of the California law enforcement community.

During PORAC’s time in Washington, several issues took precedence over others. Among these were:

  • Federal funding for grants to state, local and tribal law enforcement agencies, such as the COPS program, Edward Byrne Justice Assistance Grants (Byrne JAG) and High-Intensity Drug Trafficking Area (HIDTA) program
  • Protecting the retirements of law enforcement officers and all public employees by reforming the Social Security Windfall Elimination Provision (WEP) through support of House Ways and Means Chairman Richie Neal’s (D-MA-1) H.R. 4540, the Public Servants Protection and Fairness Act, and S. 521/H.R. 141, the Social Security Fairness Act
  • Preventing violence against police officers by promoting Representative Lou Correa’s (D-CA-16) H.R. 5251, the Improving Community Safety Task Force Act, and S. 1480/H.R. 5395, the Back the Blue Act
  • Improving mental health care for law enforcement officers and communities through Representative Josh Harder’s (D-CA-10) H.R. 2696, the Supporting the Health and Safety of Law Enforcement Act, and S. 2746/H.R. 3735, the Law Enforcement Suicide Data Collection Act
  • Supporting the families of fallen law enforcement officers through H.R. 2697, the Corporal Ronil Singh and Fallen Heroes Scholarship Act, a bill from Representative Harder to provide Pell Grants to the spouses of fallen officers

In meetings with members of Congress, congressional staff and Trump administration officials, PORAC Executive Committee members made a compelling case for the prioritization of these issues and delivered important information on the challenges facing law enforcement officers across California. Despite the uncertainty surrounding Congress as the coronavirus situation escalates into a pandemic, PORAC will continue this advocacy in Washington until the needs of law enforcement are met.  

Federal Legislation – A Return to Normalcy?

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

After a tumultuous and controversial start to the new decade, things in Washington have quieted down and taken a turn back toward the routine — if anything in President Donald Trump’s Washington can be considered routine. The impeachment trial in the Senate concluded with a whimper rather than a bang, and President Trump carried out two of the longest-standing traditions of the presidency: delivering a State of the Union address and releasing his budget recommendations. Each of these have potential ramifications for law enforcement agencies in California and across the nation.

Impeachment Acquittal

It is worth reviewing the final days of the Senate’s impeachment trial, which, after several weeks, wound its way to the all-but-preordained conclusion. On February 5, just a day after the president’s State of the Union address, the Senate voted to acquit President Trump. On the first article of impeachment, the charge that the president had abused his power in conditionally withholding military aid from Ukraine, the president was acquitted on a 52–48 vote. In the only surprise of the day, Republican Senator Mitt Romney of Utah joined with Senate Democrats to vote to convict. On the second impeachment article, the charge that the president had obstructed the congressional investigation, the president was acquitted on a 53–47 party-line vote. As the Constitution requires a two-thirds vote to convict and remove a president, neither vote came close.

President Trump Promotes Law Enforcement in State of the Union

On February 4, the day before his Senate acquittal, President Trump went before nearly the entire Congress (several representatives declined to attend) to tout what he called “the great American comeback.” The president’s speech touched on many of his perceived accomplishments while laying out a continued vision for the country and implicitly making a case for his own re-election.

As he discussed his vision for the United States, he stressed the importance of his push to “keep Americans safe.” The president stated that “supporting the men and women of law enforcement at every level” is absolutely integral to his vision of a safe and secure America. He went on to claim that his administration has made progress on that goal, citing the arrests by Immigration and Customs Enforcement (ICE) officers of 120,000 individuals charged with “nearly 10,000 burglaries, 5,000 sexual assaults, 45,000 violent assaults and 2,000 murders.” The president then went on to slam the state of California for, in his words, passing “an outrageous law declaring their whole state to be a sanctuary for criminal illegal immigrants…with catastrophic results.” In response, President Trump promoted a bill from Senator Thom Tillis (R-N.C.) that would allow victims of crimes carried out by undocumented immigrants to sue so-called sanctuary jurisdictions.

The president also highlighted his administration’s efforts to combat human trafficking, noting that over the last three years, ICE has arrested over 5,000 alleged human traffickers and that he has signed nine pieces of legislation to combat the crime. Just days before the State of the Union, the president put additional force behind his words by signing an executive order on “Combating Human Trafficking and Online Child Exploitation in the United States.” The order establishes a new federal position that will focus solely on combating trafficking.

President Kicks Off 2021 Budget Process

Only a week after the president’s State of the Union, the White House released President Trump’s proposed budget, an event that signals the beginning of the Fiscal Year (FY) 2021 appropriations process. The budget featured a wide array of proposed cuts, including reductions in funding for the Department of Justice-administered grants that state and local law enforcement agencies rely on. In total, the president’s proposed budget for FY reduces DOJ funding as a whole by $730 million.

Of the most importance to state and local law enforcement agencies, the president’s budget would cut funding for Edward Byrne Justice Assistance Grant (Byrne JAG) programs while also merging the Community Oriented Policing Services (COPS) Office with the Office of Justice Programs (OJP). The reduction of Byrne JAG funding from $547.21 million in FY 2020 to $412 million in FY 2021 represents a major cut to the primary source of federal aid to state, local and tribal law enforcement. While the exact impact of the COPS-OJP merger is unknown, it does represent a relatively substantial change. The budget does allocate $99 million for the COPS Hiring Grant program, which provides funding to state, local and tribal law enforcement agencies to boost their teams.

However, the budget as proposed by the president is unlikely to gain much traction, let alone actually pass as proposed. Almost any proposal from the president is dead-on-arrival in the Democratic-controlled House, and Senate Majority Leader Mitch McConnell (R-Ky.) has indicated that the Senate will largely ignore the president’s proposal in favor of the spending-cap deal agreed to with the House last year. Instead, the House and Senate will work to create a package that can pass both chambers before going to the president’s desk. Regardless of the process, PORAC will continue fighting for a budget that provides law enforcement agencies with the funding they need to serve their communities.

Federal Legislation – Happy New Year: Buckle Up for 2020

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

2019 is behind us. Whether it felt more like a decade or more like a week is up for debate. Yet, 2019 may end up being just the warm-up for 2020, which is set to be just as chaotic, if not more so. At the time this issue went to print, Congress was in the process of reaching a funding agreement with only six days to go before a shutdown, and an impeachment trial in the U.S. Senate for President Donald Trump appeared destined to be the first order of business once Congress returns for the new year.

In addition to an impeachment trial and the inevitable chaos of a presidential election year, Congress will have to find time to address the many priority issues facing Americans — not the least among them are issues facing law enforcement officers across the country.

By any measurement, 2020 promises to be a wild ride. Buckle up: Here’s Steptoe’s 2020 PORAC federal preview.

Trial of the Century?

At the time this issue went to print, the House of Representatives’ public impeachment hearings had concluded and final articles of impeachment (essentially the charges being brought) were drafted. The House was expected to vote on these articles by Christmas, and many expected the articles to be approved on a party-line vote. With the House having concluded its role, impeachment then falls to the Senate for a trial to be presided over by Supreme Court Chief Justice John Roberts.

In the Senate, the schedule and process for the impeachment trial will largely be in the hands of Senate Majority Leader Mitch McConnell (R-Ky.). There have been mixed signals about intentions for the trial. President Trump has expressed some desire for a full list of witnesses, while Majority Leader McConnell has conveyed a desire to expedite the process and limit the participation of witnesses. As it stands now, Senator McConnell has cleared the Senate’s January schedule for the trial.

While conviction and removal is a remote possibility, the impeachment trial will grind the Senate to a halt as it proceeds. The impeachment process requires mandatory attendance for all senators, one of the few instances in which senators are required to physically be in the Senate chamber (and without access to their mobile devices!). This may have an outsized effect on several Democratic candidates for president, specifically Senators Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), Cory Booker (D-N.J.), Amy Klobuchar (D-Minn.) and Michael Bennett (D-Colo.), all of whom will be pulled off the campaign trail in the critical weeks leading up to the Iowa caucuses. Furthermore, no other legislative business can occur while an impeachment trial is underway; the rules require that the trial go six days per week until concluded.

Election Year is Here

As hinted above, the new year is crunch time for Democratic presidential hopefuls. The Iowa caucuses are just a little over a month after New Year’s Day — on Monday, February 3. The first-in-the-nation New Hampshire primary is Tuesday, February 11. From there, the schedule only accelerates to Nevada, South Carolina and a slew of Super Tuesday states in March.1

In the current RealClearPolitics polling average, South Bend Mayor Pete Buttigieg leads the Democratic field in both Iowa and New Hampshire, followed in each state by Senator Bernie Sanders, Senator Elizabeth Warren and former Vice President Joe Biden. Here is where implications from the Senate’s impeachment trial will be most felt, as Warren and Sanders will be set to depart from the campaign trail, while Biden and Buttigieg will be able to continue campaigning in these two critical states.

Of course, the presidential election is not the only election set to occur in 2020. All 435 seats in the House will be up for grabs, as will a third of the Senate. In most election years, congressional action slows to a halt, and there is no indication that 2020 will be any different. Members’ need to campaign frequently and seriously impedes congressional business throughout the year.

Federal Funding in Limbo

Of course, those following the current progress of Congress may be forgiven for shuddering at the idea of an even less functional institution to come. And no issue may illustrate congressional dysfunction better than the seemingly interminable cycle of talks, extensions and gridlock surrounding federal funding for fiscal year (FY) 2020.

Readers of this column may recall that the House first passed the Commerce-Justice-Science (CJS) appropriations package, which includes all federal funding for the Department of Justice and grants for local law enforcement, on June 25. Since then, Congress has avoided a default on the nation’s debt, passed a separate CJS bill out of the Senate, reached a topline agreement on spending and passed two continuing resolutions (CRs) to keep the government running at FY 2019 levels. Despite these actions, a final appropriations package has not been passed or sent to the president.

However, there is some good news on the funding front. Immediately before this issue went to print, House Appropriations Chairwoman Nita Lowey (D-N.Y.) announced that congressional leaders had reached a deal in principle on FY 2020 funding levels. While few details are currently known, it is likely that there will be higher levels of funding for law enforcement priorities than there were in FY 2019. Expect a full summary of law enforcement funding in next month’s edition of this column.

PORAC Priorities in 2020

Even as impeachment proceeds, ballots are cast and Washington descends even further into partisan chaos, PORAC will stay laser-focused on the issues that matter most to law enforcement officers in California and across the country. Because Congress works on a schedule where every “Congress” constitutes two years (and every “session” one year), PORAC will work to further the progress made in 2019 during the final year of the 116th Congress (i.e., 2020). In fact, many of our priorities will remain the same:

  • Protecting the retirement of law enforcement officers — PORAC has worked tirelessly to ensure that every law enforcement officer and first responder can retire with the benefits they so richly deserve. To that end, PORAC has supported several bills — including H.R. 141/S. 521, the Social Security Fairness Act and H.R. 4540, the Public Servants Protection and Fairness Act — to eliminate or reform the Windfall Elimination Provision (WEP), which reduces the Social Security benefit of workers who receive a public pension. Additionally, PORAC has supported and endorsed H.R. 4527/S. 2552, which would allow retiring first responders to buy into Medicare, and H.R. 1256/S. 531, which permits disabled law enforcement officers to receive retirement benefits in the same manner as if they had not been disabled. Together, these bills are a potent package that will ensure that law enforcement officers are able to retire on their own terms.
  • Ending violence against police — As always, PORAC is dedicated to the safety of every police officer and first responder in California and nationally. Thus, the growing anti-police climate in the U.S. — and the observable uptick in assaults on law enforcement officers that has come with it — is of the gravest concern. As a result, PORAC has taken a lead role in addressing this disturbing trend. Working with Congressmen Lou Correa (D-CA-46) and Josh Harder (D-CA-10), PORAC has promoted H.R. 5251, the Improving Community Safety Task Force Act, which would establish a Department of Justice task force to examine the causes of violence against police and how it can be stopped. In addition, PORAC has supported S. 1480, the Back the Blue Act, which would make the assault of a law enforcement officer a federal crime, and H.R. 99/S. 1508, the Thin Blue Line Act, which would increase the penalties for assaults on a law enforcement officer. PORAC will continue to work toward the passage of all these bills in 2020.
  • Use of force — PORAC opposes any change that will undermine the existing federal standard under which a law enforcement officer may use deadly force. In practice, this means that PORAC will continue to oppose Congressman Ro Khanna’s (D-CA-17) bill: H.R. 4359, the PEACE Act. H.R. 4359 would codify a national use-of-force standard that would only permit a police officer to use deadly force when it is “necessary” and a last resort — not when it is “reasonable” for an officer to use that force. If enacted, this would create a highly subjective hindsight standard for evaluating and holding officers criminally liable for using force when responding to split-second, life-or-death situations. PORAC opposes this bill and intends to oppose it until
    the very last day of this congressional session.
  • Fighting for federal funding … again — Although no funding for FY 2020 has yet been enacted, it is never too early to get a head start on FY 2021. Unlike other congressional business, which operates on the two-year cycle briefly mentioned above, funding the federal government happens every year. And, as in past years, PORAC will fight to expand and increase the funding available for law enforcement. The FY 2020 funding looks good, but it can always be better, and PORAC will work to ensure that the vital funding law enforcement relies on is maintained and expanded in FY 2021.

In closing, please accept our wishes for the holiday season, and for a happy, healthy and safe new year to you and yours. It is our honor and privilege to serve as PORAC’s representative here in our nation’s capital. We are grateful for the trust you have put in us and for the sacrifices you and your families make to keep our communities safe. We are eager to continue bringing your voice to Washington in 2020.