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.

Federal Legislation – Congress Is Back in Session

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.