Federal Legislation – Lame Duck Session of Congress Ends With Long To-Do List, Little Time

Darryl Nirenberg
Partner
Josh Oppenheimer
Associate
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

Following the midterm elections on November 6, Congress returned to Washington, D.C., with a list of items to tackle, including passing bills to fund the government and avoid a government shutdown — with little over one month to complete the job. In addition to the scheduled week where members were back in their districts for the Thanksgiving holiday, Congress spent four unplanned days out of session to honor former President George H.W. Bush, who passed away November 30.

Judicial Nominations

As this issue goes to press, 85 judicial nominations have been confirmed by the Senate (including nominees for 53 district court and 30 circuit court judgeships). Pending before the Senate are 107 additional nominees, 75 of which are ready for approval by the Senate Judiciary Committee, and 32 of which have been reported by the committee and are awaiting confirmation by the full Senate. The confirmation process for these nominees has grinded to a halt due to objections raised by retiring Senator Jeff Flake (R–Arizona) and member of the Judiciary Committee.

On November 14, Senator Flake announced he would not support confirmation of any judicial nominations until a bill protecting Special Counsel Robert Mueller is considered for a vote on the Senate floor. Because the Republicans have only a one-person majority on the Judiciary Committee, and the Senate has limited time to consider nominations, Flake is in the position whereby he can effectively prevent confirmation of some — or all — pending judicial nominations.

Senate Majority Leader Mitch McConnell (R-Kentucky) has adamantly stated he will not bring Senator Flake’s legislation up for consideration by the Senate. Given the limited amount of time remaining this year, it is not clear whether a deal can be brokered to dislodge Senator Flake’s objections and clear the path for the Senate to take up and confirm pending judicial nominations. Any nominations not confirmed will need to be resubmitted in the next Congress by the president.

Funding of Justice Grant Programs

Funding for the Department of Justice (DOJ) expired September 30 as Congress failed to enact appropriations for the department for fiscal year 2019 (FY19). On September 28, President Trump signed stopgap legislation to temporarily fund the Justice Department (and other federal agencies for which Congress had not passed appropriations bills) through December 7. On December 4, Congress passed another stopgap bill, this one funding the department through December 21. At the time this issue went to press, Congress had not made any progress on passing the appropriations bills fully funding the federal government for the remainder of FY19.

The bills appropriating funds for the Justice Department for FY19 by the House and Senate still need to be reconciled to resolve any differences between the two versions; however, both propose funding the DOJ at $30.7 billion, which is $402.5 million more than the DOJ received in FY2018. The bills include $2.9 billion for law enforcement and crime prevention grant programs. The chairman of the Senate Commerce Justice Science Appropriations Subcommittee, Senator Jerry Moran (R-Kansas), has stated that he expects that once the House and Senate bills are reconciled, the final version will contain all of the funding proposed for the DOJ.

Criminal Justice Reform in 2018?

During the 115th Congress (2017–2018), several bills have been introduced to reform prison and sentencing laws in the criminal justice system. While most of these bills have not been considered in either chamber, on May 22, 2018, the House did take up and pass the First Step Act. This far-reaching prison reform bill includes provisions funding prison-based training programs intended to help rehabilitate prisoners convicted of nonviolent crimes and authorizing early release for some participants in such programs.

The bill sailed through the House by a vote of 360-59. Its fate in the Senate, however, has been unclear for months. Conservative senators contended that the House-passed bill was too forgiving of convicted felons. Democratic senators opposed the bill, arguing that by including only changes to prison and not sentencing reform, it did not provide comprehensive criminal justice reform. Senator Chuck Grassley (R–Iowa), Senate Judiciary Committee chairman, also refused to take up the measure because it did not address both prison and sentencing reform.

Criminal justice reform saw new life, however, when, on November 14, Chairman Grassley introduced his own version of the Senate’s First Step Act. His bill contains the House-passed prison reform language and includes some sentencing reform. The bill gained bipartisan support from Democrats and some Senate Republicans. It was opposed by conservative Republicans who were concerned about the changes that would be made by the bill, including reducing the mandatory sentencing terms for certain nonviolent criminals, such as certain drug offenders.

On December 12, Chairman Grassley released a revised First Step Act that included changes intended to address some of the concerns raised by law enforcement groups and conservative senators. For example, Senator Ted Cruz (R–Texas) issued a statement in support of the bill after he received assurances from Chairman Grassley that the legislation would be rewritten to prevent the early release of violent offenders.

At the time this issue went to press, the fate of the Senate bill remained uncertain. Senate Majority Leader McConnell announced December 11 that he intends to have the Senate vote on the bill before 2019. However, a number of Republicans, led by Senator Tom Cotton (R–Arkansas), are expected to remain strongly opposed to the bill.

PORAC President Brian Marvel issued a letter indicating that PORAC could not support the legislation, urging Congress to first take into account the negative impact that Propositions 47 and 57 have had on public safety in California. President Marvel also requested that Congress increase funding for local law enforcement agencies to help defray the costs that agencies are likely to incur in dealing with early-released prisoners who return to commit crimes.

William Barr Nominated as the Next Attorney General

On December 7, President Trump nominated William Barr to replace former Attorney General Jeff Sessions. Barr served as attorney general under the late President George H.W. Bush from 1991–1993, as assistant attorney general in the DOJ’s Office of the Legal Counsel before that, and as both acting and deputy attorney general. President Trump stated that he expects Barr to be quickly confirmed by the Senate on a bipartisan basis. Incoming Senate Judiciary Chairman Senator Lindsey Graham (R–South Carolina) has indicated his intent to move promptly on the nomination.

During his previous stint as attorney general, Barr was a proponent of strict immigration laws and was viewed as a hard-liner on criminal justice issues. In 1992, Attorney General Barr authored a paper, “The Case for More Incarceration,” advocating mass incarceration and the reallocation of DOJ resources toward more aggressive enforcement of laws relating to the trafficking of drugs and guns and to gang violence.

In 2015, as a private citizen, Barr joined 39 other former law enforcement officials in urging Congress to oppose sentencing reform legislation, arguing that such reform threatened public safety. In November 2018, Barr authored an op-ed praising Attorney General Sessions’ record on criminal justice and commending him for “restoring police morale.”

Although President Trump expects Barr to be confirmed by a bipartisan vote, Senate Democrats have expressed concern over Barr’s view that presidential power should not be limited. For example, as assistant attorney general at the DOJ, Barr argued that the president has exclusive power and that any attempts by Congress to provide a check on the president’s power should be resisted. Senate Democrats worry that Barr’s views may indicate that, as attorney general, he would try to undercut Special Counsel Mueller’s investigation.

Before the Senate votes to confirm him, Barr will testify in front of the Senate Judiciary Committee, where Democrats will likely question him about his position on presidential power before deciding whether to support his confirmation. Senator Susan Collins (R–Maine) has also stated she wants to ensure that Barr will not move to limit Special Counsel Mueller’s authority before supporting him.

To be confirmed by the Senate, Barr needs at least 51 votes. As of 2019, there will be 53 Senate Republicans, so even if three Republican senators decide to vote against Barr, he could still be confirmed with a 50-50 margin in the Senate, assuming Vice President Mike Pence would be available to cast a tie-breaking vote and confirm Barr 51–50.

Federal Legislation – PORAC Storms the Hill

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Josh Oppenheimer
Associate
Steptoe & Johnson LLP

Beginning with a proclamation by President John F. Kennedy in 1962 designating May 15 as Peace Officers Memorial Day, National Police Week has blossomed into a nearly monthlong commemoration during which tens of thousands of law enforcement officers from around the world meet in Washington, D.C., to honor those officers who lost their lives in the line of duty. PORAC members participated in a number of National Police Week events, including a candlelight vigil held Sunday evening, May 13, on the National Mall.

Tony Bolanos, Brent Meyer, Don Morrissey, Marcelo Blanco, Barry Donelan, Sen. Kamala Harris, Damon Kurtz, Brian Marvel, Anthony Sanders, Gary Moore, Mike Fender and Rudy Perez

Coinciding with National Police Week, PORAC members also had their second fly-in of the year and met with U.S. Attorney General Jeff Sessions and key members of California’s congressional delegation and their staff, as well as staff on several committees considering legislation important to law enforcement. Over two days, PORAC met with Senator Kamala Harris (D) and Representatives Doris Matsui (D-6th), Paul Cook (R-8th), Eric Swalwell (D-15th), David Valadao (R-21st), Salud Carbajal (D-24th), Julia Brownley (D-26th), Pete Aguilar (D-31st), Norma Torres (D-35th), Duncan Hunter (R-50th), Juan Vargas (D-51st) and Scott Peters (D-52nd). PORAC also met with staff from the offices of Senator Dianne Feinstein (D) and Representatives Mark DeSaulnier (D-11th), Barbara Lee (D-13th), Ro Khanna (D-17th), Steve Knight (R-25th) and Jimmy Gomez (D-34th), as well as majority staff on the House Education and Workforce Committee and House Judiciary Committee.

Funding for DOJ Grant Programs: During those meetings, PORAC members advocated for full funding of the Department of Justice’s (DOJ) Office of Community Oriented Policing Services (COPS Office), the Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) Program and other community policing funding initiatives. They also urged for the passage of a number of bills aimed at supporting law enforcement and enhancing community safety.

Survivor Benefits: PORAC members advocated for H.R. 5060, the Heroes Lesley Zerebny and Gilbert Vega First Responders Survivors Support Act of 2018, to increase the death, disability and education benefit amounts under the Public Safety Officers’ Benefits (PSOB) Program. The PSOB Program provides benefits to eligible public safety officers whose injuries (or deaths) were sustained in the line of duty.

The bill, co-sponsored by California Representatives Raul Ruiz (D-36th-Palm Desert) and Paul Cook (R-8th-Yucca Valley) also would modify certain timing and procedural aspects of the program in an effort to ensure that beneficiaries (police officers and their survivors) receive the full amounts to which they are entitled.

School Safety: To address the recent spate of deadly school shootings, PORAC members expressed support for H.R. 5307, the School Training, Equipment and Protection (STEP) Act of 2018, which would make $50 million in federal education funding available for school safety equipment and other activities, including vulnerability assessments, active shooter training and security equipment. The bill’s sponsor, California Rep. Steve Knight (R-25th-Antelope Valley), reached out to PORAC in March and asked for the Association’s input on the legislation, as well as its support.

DNA Evidence: PORAC members also discussed S. 2345/H.R. 4854, the Justice Served Act of 2018, a bill co-sponsored by Senator Feinstein that would increase the capacity of prosecutors to address the backlog of violent crime cases involving suspects identified through DNA evidence. The bill passed the House on May 15, by a vote of 377-1. Representative Justin Amash (R-Mich.) was the lone dissenter.

Collective Bargaining: Members also advocated for H.R. 4846, the Public Safety Employer-Employee Cooperation Act, which would guarantee certain collective bargaining rights for state and local public safety officers by mandating that state labor laws comply with a set of minimum requirements.

Prison Reform Bill Sees Some Light in the House

With the influx of law enforcement personnel to the nation’s capital, the House again turned its attention to prison reform. In April, the House Judiciary Committee tried to push through a narrow prison reform bill, but scrapped its plans after Senate Judiciary Chairman Chuck Grassley (R-Iowa) and Senate Minority Whip Dick Durbin (D-Illinois) opposed it, saying that it did not cover

Moore, Bolanos, Blanco, Rep. Norma Torres and Fender

enough ground. The bill was supported by Jared Kushner, President Trump’s son-in-law and adviser, who visited Capitol Hill to rally support for it.

Since then, a revised bill that would authorize funding for training programs to help rehabilitate prisoners was introduced in early May. The House Judiciary Committee overwhelmingly voted it out of committee on May 9. At the time this publication went to print, the bill — titled the FIRST STEP Act (S. 2795/H.R. 5682) — sits on the House floor, where it was expected to be voted upon before the Memorial Day recess. Its success in the Senate, though, remains unclear. Although Chairman Grassley prefers a comprehensive reform package, as opposed to bills that tackle only one issue at a time, he has signaled support for this legislation as a means to keep the reform process moving.

If enacted, the FIRST STEP Act would authorize $50 million a year for five years to provide education and vocational training programs to prisoners, and it would allow nonviolent drug offenders to participate in the programs. It also would prohibit the shackling of pregnant female inmates and would allow inmates to earn up to 54 days of “good time” credit a year, up from 47 days a year under current law. Along with the FIRST STEP Act, the House Judiciary Committee also approved of the Protect and Serve Act (S. 2794/H.R. 5698), which would allow for the federal prosecution (under certain conditions) of those who knowingly cause or attempt to cause significant bodily injury to any law enforcement officer. The Protect and Serve Act passed the House on May 16 by a vote of 382-35.

Senate Focuses Efforts on Judicial Nominations

While the House appears to be moving forward with its prison reform bills, the Senate is focused on confirming judicial nominations instead of law enforcement and other legislative initiatives. As President Trump ramps up his efforts to fill the nearly 150 federal judicial vacancies across the country, the Senate Judiciary Committee — the congressional committee tasked with vetting the President’s judicial nominees — has turned its attention to filling these vacancies. Recognizing the President’s desire to reshape the federal judiciary, Chairman Grassley has prioritized holding hearings on President Trump’s nominees and getting them confirmed as quickly as possible. The chairman’s task has been made more challenging because some nominees are not getting the traditional support they usually receive from their home state senators or the American Bar Association.

For example, the Judiciary Committee recently held a confirmation hearing for Ryan Bounds, an assistant United States attorney in Oregon, to become a judge on the U.S. Court of Appeals for the Ninth Circuit, the circuit with appellate jurisdiction over California’s federal district courts. The hearing took place despite the lack of support from both Oregon Senators Ron Wyden (D) and Jeff Merkley (D). The senators objected to Mr. Bounds’ college writings on sexual assault, multiculturalism and the LGBT community.

As Congress heads into summer and gears up for the midterm elections in November, it will be interesting to see whether legislators turn their focus back to the more salient issues facing the law enforcement community.

Federal Grants Open — Apply Now!

The COPS Office recently announced the opening of the following grant program applications:

  • COPS Anti-Heroin Task Force (AHTF) Program: The 2018 Anti-Heroin Task Force Program is a competitive grant program that assists local law enforcement agencies in states with high per capita levels of primary treatment admissions for both heroin and other opioids. AHTF funds are used for investigative purposes to locate or investigate illicit activities related to the distribution of heroin or unlawful distribution of prescription opioids.
  • COPS Anti-Methamphetamine Program (CAMP): The 2018 COPS Anti-Methamphetamine Program is a competitive grant program that advances public safety by providing funds directly to state law enforcement agencies to investigate illicit activities related to the manufacture and distribution of methamphetamine.

Those wishing to apply are encouraged to do so through Grants.gov by June 27. The National Institute of Justice (in partnership with the International Association of Chiefs of Police) also is accepting applications for its Law Enforcement Advancing Data and Science (LEADS) program. Those applications are due June 8. PORAC has posted additional information on these and other grants and the application procedure on its website.