Federal Legislation – Congress Barrels Forward with Spending Bills

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

As lawmakers prepare to return to their districts for the August recess and, in many states, local election season slated to begin soon afterward, June and July are critical months for the development of federal policy. With deadlines looming, both real and perceived, Congress must fund the federal government for fiscal year (FY) 2020, while also raising the limit on the amount of debt the federal government may incur, and considering pressing policy issues. As a result of this urgency, several PORAC-supported bills important to law enforcement are moving quickly through Congress, while federal funding that plays an indispensable role in keeping communities across the country safe is up for renewal.

Federal Funding Update

While the Golden State Warriors were locked in a battle for their fourth championship in five years, the U.S. House of Representatives moved forward at full throttle, working toward the passage of a series of bills to fund the federal government in FY2020.

On May 22, the House Appropriations Committee passed the Commerce-Justice-Science (CJS) funding bill for FY2020. The CJS bill appropriates funds for the Commerce Department, NASA, the National Science Foundation and, most importantly for law enforcement, the Department of Justice. The Committee maintained the PORAC-endorsed funding levels that had previously been approved by the House CJS Appropriations Subcommittee. Among the funding included in the budget is:

  • $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

The bill has been packaged with funding for the departments of Agriculture, Transportation, Veterans Affairs and other programs and sent to the House floor as H.R. 3055. It is scheduled for a vote the week of June 17. Should the bill pass, as is expected, it will continue on to the Senate, where the levels of funding must be agreed to by the Senate Appropriations Committee and subsequently the full Senate. If it clears these hurdles, any differences with the House-passed bill must be reconciled, the unified bill passed by both chambers, and sent to the desk of President Donald Trump for his signature.

There are numerous discrepancies between the House CJS bill and the president’s budget proposal. It seems unlikely that the House funding bill will be signed into law in its current form. If no agreement is reached by September 30 (the end of FY2019), Congress will be forced to pass a short-term continuing resolution (CR) while negotiations continue.1

No matter the course negotiations take, PORAC is committed to working with Congress and the administration to ensure that state and local law enforcement grant programs are fully funded and that law enforcement officers across California have the federal help they need to succeed.

House Judiciary Committee Approves Two
PORAC-Supported Bills

Although much of the focus in the House Judiciary Committee has been on investigating President Trump and his administration, two PORAC-supported bills were approved and reported to the House floor on June 12.

H.R. 1327, the Never Forget the Heroes: Permanent Authorization of the September 11th Victim Compensation Fund Act, sponsored by Representative Carolyn Maloney (D–N.Y.), will extend the authorization for the September 11th Victim Compensation Fund through 2090.

The fund was established in 2001 to aid and compensate the victims of the 9/11 attacks, including many law enforcement officers. H.R. 1327 will ensure these funds do not dry up, and the first responders who performed heroically on 9/11 will continue to receive the compensation they deserve. Maintaining funding for first responders and their families is vital, and PORAC applauds the members of the House Judiciary Committee for prioritizing those affected by those tragic attacks. H.R. 1327 will now move to the House floor for a full vote. An identical bill, S. 546, is sponsored in the Senate by Senator Kirsten Gillibrand (D–N.Y.) and is pending before the Senate Judiciary Committee.

The House Judiciary Committee also approved H.R. 2368, the Supporting and Treating Officers in Crisis Act, introduced by Representative Guy Reschenthaler (R–Pa.).

H.R. 2368, also endorsed by PORAC, would provide a range of support for law enforcement officers and their families as they deal with the daily stress of police work. The bill would improve and expand police officer family services, stress reduction initiatives, suicide prevention programs and various other mental health services. Identical legislation, S. 998, sponsored by Senator Josh Hawley (R–Mo.), has already passed the Senate. If and when H.R. 2368 is taken up and approved by the House, it will be well on its way to becoming law. We will keep you apprised of developments.

Federal Legislation – Law Enforcement Sees Wins in Congress

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

May yielded several wins for public safety officers, with Congress pushing law enforcement priorities. The nation’s lawmakers considered several bills relating to law enforcement. While not every law enforcement–focused bill had been passed or signed into law at the time this issue went to print, all of these bills inched closer to becoming law. In addition, during National Police Week (May 12–18), members of PORAC visited the Hill and met with members of the California delegation to discuss PORAC’s priorities for this Congress. As we close the chapter on a spring of successful legislative accomplishments, PORAC will continue working with Congress this summer and fall on priority issues, such as advocating for increased law enforcement funding, expanded police benefits and additional resources that are valuable to PORAC’s members.

Bills Considered by Congress During Police Week

At the beginning of Police Week, PORAC sent letters to all the members of the California delegation with whom the Association met during our spring fly-in asking for their support on the below legislation. We thank them for working on a bipartisan basis to pass these bills. PORAC also would like to thank the bills’ sponsors, including S. 1208 sponsor, Senator Chuck Grassley (R–Iowa); Senator Patrick Leahy (D–Vt.)/Representative Bill Pascrell (D–N.J.), the sponsors of S.1231/H.R. 2379; and Senator Josh Hawley (R–Mo.)/Representative Guy Reschenthaler (R–Pa.), the sponsors of S.998/H.R. 2368.

  • The Protecting America’s First Responders Act (S. 1208): The bill would make a number of improvements to the Public Safety Officers’ Benefits program and provide additional death, disability and education benefits to police officers. PORAC worked closely with Senator Grassley in crafting the legislation and was pleased to endorse the bill. We look forward to working with the House to pass the measure and send the legislation to President Trump to be signed into law.

˚   Sponsor: Senator Chuck Grassley (R–Iowa)

˚   Status: On May 16, the Senate passed the bill unanimously by voice vote and sent it to the House. The measure was then referred to the House Judiciary Committee — the committee with authority over law enforcement–related legislation matters.

  • The Bulletproof Vest Partnership Grant Program Permanent Reauthorization Act (S. 1231/H.R. 2379): The bill would permanently reauthorize the Department of Justice’s (DOJ) Bulletproof Vest Partnership Grant program, allocating $30 million per year to state and local law enforcement agencies for the purchase of bulletproof vests. The program is highly important to police officers — to date, over 13,000 law enforcement agencies have purchased 1.35 million vests with the funding.1 Presuming the bill will be signed into law by President Trump, PORAC members will be guaranteed this funding that is critical to carry out law enforcement’s public safety mission and ensure the safety and security of our members.

˚   Sponsors: Senator Patrick Leahy (D–Vt.)/Representative Bill Pascrell (D–N.J.)

˚   Status: On May 16, the bill was passed by the House with a vote of 400–9 and by the Senate with a unanimous vote. The bill has been sent to President Trump to sign into law.

  • The Supporting and Treating Officers in Crisis Act (S. 998/H.R. 2368): The bill would provide mental health services for police officers (i.e., suicide prevention programs, etc.) and reauthorize certain grant programs that offer family support services to law enforcement officers and their families.

˚                Sponsors: Senator Josh Hawley (R–Mo.)/Representative Guy Reschenthaler (R–Pa.)

˚                Status: On May 16, the Senate passed the bill unanimously by voice vote and sent it to the House. 

Let the Fiscal Year (FY) 2020 Funding Fight Begin: Breaking Down the Appropriations Process for Funding the Department of Justice (DOJ)

On May 17, the House Commerce, Justice, Science and Related Agencies (CJS) Appropriations Subcommittee — the congressional subcommittee that appropriates funding for the DOJ, among other law enforcement agencies — amended and passed legislation to fund such agencies for FY2020.

There are a series of steps, however, that must be taken before the actual funding amounts for the DOJ will be decided. First, the House bill will be considered by the House Appropriations Committee and subsequently the entire House. At the time this issue went to press, the House Appropriations Committee had scheduled a markup (a meeting to review, amend and vote on the bill) for May 22. The bill is expected to pass through committee, and funding numbers for law enforcement are anticipated to remain at their proposed levels (discussed in further detail below).

The Senate CJS bill will also undergo the same process in that chamber. The Senate CJS Appropriations Subcommittee — which appropriates funding for the DOJ on the Senate side — will first have to pass its legislation, which will then be taken up by the full Senate Appropriations Committee and subsequently by the Senate. The Senate CJS Subcommittee Chairman Jerry Moran (R–Kan.) has started to hold hearings on what funding should be designated to the specific agencies but has not proposed a timeline for when the subcommittee will start considering legislative proposals.

In March, the president released his proposed budget request, which Congressional Appropriations Committees will generally take into consideration or use to guide their own budget requests; however, members are not required to adopt the specific funding amounts requested by the president. There are significant differences between President Trump’s budget request and the House CJS legislation. For example, while the House bill allocates $323 million toward the DOJ’s Community Oriented Policing Services (COPS) grant program, the White House budget requested only $99 million for the program. Similarly, the White House budget request only asks for $405 million to fund the DOJ’s Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) program, compared to the House CJS’s bill allocation of $530.25 million. In terms of overall DOJ funding, the White House requested $29.2 billion for the agency, compared to the $30.2 billion included in the bill passed by the House Appropriations CJS Subcommittee.

If the president, the House and Senate cannot come to an agreement, then they will pass a continuing resolution (CR) — a short-term bill to fund the government while Congress and/or the executive branch continue negotiating.

However, even if there is no need for a CR and additional negotiations, as noted by the process outlined above, we still have a long way to go before the final DOJ funding for FY2020 is decided.

What’s in the House CJS Bill?

The bill that was passed by the House CJS Subcommittee would, among other things, fund the DOJ at $32 billion ($1.07 billion more than the funding the agency received during FY2019), including $3.4 billion toward state and local law enforcement grant programs that are important to PORAC. Key programs, among others, that would receive substantial funding through the House CJS legislation include:

  • Violence Against Women Act-related programs ($582.5 million, compared to $497 million in FY2019).
  • Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) program ($530.25 million, compared to $423.5 million in FY2019).
  • Community Oriented Policing Services (COPS) grant programs ($323 million — this includes $239 million for certain grants for the hiring/rehiring of additional career law enforcement officers — compared to $303.5 million in FY2019).
  • Grants for anti-human trafficking efforts ($100 million, compared to $85 million in FY2019), reducing the backlog of sexual assault kits ($49 million) and bulletproof vests ($25 million).

PORAC endorses the funding amounts set forth by the House appropriations legislation and looks forward to working with the House and Senate to ensure that the DOJ receives full funding for the agency’s state and local law enforcement–related grant programs.

Federal Legislation – PORAC Comes to Washington

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

PORAC came to Washington, D.C., the last week of March to discuss several issues important to law enforcement. Over two days, PORAC met with California Senators Kamala Harris and Dianne Feinstein, 18 California members of Congress, staff members of more than 25 California representatives and staff of the House and Senate Judiciary Committees — the committees that have legislative authority over law enforcement-related matters. A brief description of each issue that PORAC discussed with Congress follows.

Funding for DOJ Grant Programs: During their meetings, PORAC Board 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 Program (Byrne-JAG) and other 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. 1210, the Heroes Lesley Zerebny and Gil Vega First Responders Survivors Support Act of 2019, 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 and this bill would modify certain timing and procedural aspects of the program to ensure that beneficiaries (police officers and their survivors) receive the full amounts to which they are entitled. The bill is sponsored by California Representative Raul Ruiz (D-Palm Desert) and cosponsored by six other members of the state delegation.

Measures Reducing Violence Against Police Officers: To address the recent spate of deadly shootings against first responders, PORAC members urged Congress to consider draft legislation that would establish a federal task force to assess the causes, effects and impacts of rising violence against police. During the meetings, members and their staff provided input on ways to strengthen the draft legislation and ideas for how to get the measure passed on a bipartisan basis. PORAC drafted the legislation and is working closely with members of the California delegation to introduce the bill during this Congress.

Social Security Benefits Reform: PORAC spoke to members about the importance of amending the Social Security Act to ensure that police officers are not deprived of full benefits. Currently, two provisions in the Social Security Act penalize workers who split their careers between jobs that contribute to Social Security and jobs that do not (usually public service jobs, like state and local law enforcement) by reducing the Social Security benefits they can collect in retirement. PORAC has been working closely with members of Congress to pass legislation, the Social Security Fairness Act (H.R. 141), that would fix this issue and ensure that PORAC’s members and other law enforcement officers receive full Social Security benefits.

Federal Legislation – PORAC Vice President Goes to Capitol Hill

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

Vice President Kurtz with Congressman Devin Nunes

During the last week of January, PORAC Vice President Damon Kurtz visited Capitol Hill for a busy day of meetings with members of Congress and their staff. Mr. Kurtz met with representatives from nearly a dozen congressional offices and met directly with five members of Congress.

Vice President Kurtz’s visits served several purposes. It enabled him to introduce himself as PORAC’s new vice president. He was able to lay out PORAC’s legislative priorities for the year: law enforcement funding, criminal justice reform and pension and labor reform. He shared PORAC’s new engagement initiative, the federal legislative scorecard, which PORAC debuted to association members during the November Annual Conference. The legislative scorecard will track a member’s legislative actions on PORAC’s priority bills, as well as his or her engagement with the association both in Washington, D.C. and in the member’s California district. The members with whom Kurtz met applauded PORAC for creating the scorecard and agreed that it could be an effective tool to increase the association’s visibility on Capitol Hill. A number also expressed interest in contributing independent op-eds to PORAC’s monthly magazine, so look out for them here in the coming months!

We look forward to continuing these discussions with those members, as well as with the rest of the California representatives before, during and after PORAC’s Board of Directors fly-in, scheduled for late March. 

Attorney General William Barr Confirmed by the Senate, Will Assume Responsibilities Immediately

On February 14, the Senate approved 54–45 on a mostly party-line vote the nomination of William Barr for U.S. Attorney General. Three Democrats, Senators Doug Jones (Alabama), Joe Manchin (West Virginia) and Kyrsten Sinema (Arizona), voted with Republicans in support of Barr. Republican Senator Rand Paul (Kentucky) was the sole Republican to oppose Barr.

Among the primary issues that AG Barr will have to address immediately is how to handle Special Counsel Robert Mueller’s investigation into Russia’s efforts to interfere in the 2016 presidential election. As a public citizen, Barr was an outspoken critic of the investigation, but during his confirmation hearings earlier this year, Barr told senators on the Senate Judiciary Committee that he would not obstruct the investigation. Currently, Deputy Attorney General Rod Rosenstein is leading the investigation but is expected to announce his resignation in the coming weeks.

AG Barr likely will reprioritize existing DOJ initiatives to better align with his own policy priorities and positions. Although Barr, like former Attorney General Jeff Sessions, is a hard-liner on immigration and is historically tough on crime, Barr expressed a willingness during his confirmation hearings to loosen his stance on criminal justice. He assured senators on the Judiciary Committee that he would implement the new criminal justice reform law, the First Step Act, as written. Barr also told senators that the DOJ would work with state and local law enforcement on issues such as gang violence, human trafficking and immigration. Barr additionally distanced himself from Sessions’ tough position on marijuana, telling senators that he would not target marijuana companies in states that have legalized the drug.

AG Barr begins his tenure at the DOJ immediately.

PORAC-Endorsed Social Security Legislation Reintroduced

Kurtz with Congressman Jim Costa

On January 31, Representative Rodney Davis (R–Illinois) reintroduced the Social Security Fairness Act of 2019 (H.R. 141). The bill would repeal two provisions of the Social Security Act: the Government Pension Offset (GPO) and the Windfall Elimination Provisions (WEP) that penalize workers who split their career between jobs that contribute to Social Security and jobs that do not (usually state or local jobs like law enforcement). The GPO and the WEP slash the Social Security benefits that PORAC members are entitled to by two-thirds.

The WEP reduces Social Security benefits for workers that receive a public pension from their previous job (where they did not contribute to Social Security), disadvantaging public safety officers who retire and then take a position in the private sector.

And, under the GPO, if a law enforcement officer’s spouse dies and that spouse had contributed to Social Security, then the law enforcement officer would not receive half of the spouse’s Social Security benefits like most other Americans would. Instead, the public safety officer’s benefits he or she would have received from his or her spouse would be offset by two-thirds of the officer’s public pension, thereby eliminating most or all of the Social Security benefits that the officer should have received.

PORAC has endorsed multiple versions of H.R. 141 in the past and will continue to support legislation that would preserve Social Security benefits in retirement, as well as other bills that would fix the public pension system.

High Court Expands What Constitutes a Violent Felony

Kurtz with Congressman TJ Cox

In a 5-4 decision, the U.S. Supreme Court ruled that a robbery conducted with force sufficient to overcome a victim’s resistance constitutes “physical force,” satisfying the requirement of a violent felony under the federal Armed Career Criminal Act. The act requires a mandatory 15-year sentence for those convicted of firearm possession if they previously had been found guilty of three violent felonies or serious drug charges — a sort of three-strikes policy.

In Stokeling v. United States, Denard Stokeling was arrested for burglary in 2015 after being caught on camera and identified by several witnesses. When Mr. Stokeling was arrested, police officers found a gun in his backpack. Mr. Stokeling had three felonies in 1997 on his record, possibly triggering the Armed Career Criminal Act and its mandatory 15-year sentence. Mr. Stokeling’s lawyers argued to the court that one of the felonies, an unarmed robbery in Florida, should not be considered a violent felony under federal law. The majority of the justices disagreed: under Florida law (which considers a felony to be violent if the victim resists), the unarmed robbery was a violent felony, and, therefore, could be considered as one too under federal law.

The majority opinion was issued by Justice Thomas, who was joined by Justices Alito, Gorsuch, Kavanaugh and — surprisingly — Breyer, who usually votes with the court’s liberal wing. Justice Sotomayor penned the dissenting opinion, arguing that the standard offered by the majority meant that, depending on a state’s definition of what level of force constitutes a violent crime, crimes with little to no force at all could be defined as violent felonies under federal law. Chief Justice Roberts and Justices Ginsburg and Kagan joined Justice Sotomayor in her dissent.

Federal Legislation – Congress Opens; Government (Partially) Closed

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

On January 3, representatives-elect were sworn in for the 116th Congress. After the November 2018 midterm elections, Republicans retain control of the Senate, but Democrats are now the majority party in the House of Representatives. Both parties are eager to begin working on implementing their top legislative priorities. Instead, due to the partial government shutdown,1 members of Congress have been focused on negotiating a funding deal with President Trump.

After Congress failed to pass appropriations legislation to fund the government, several government agencies, including the Department of Justice, closed (other than for essential functions) until they receive funding for the upcoming year. Trump refused to sign any bills that grant money to these agencies unless Congress agrees to at least $5 billion to fund his proposed border wall. Speaker of the House Nancy Pelosi (D-Calif.) and Senate Minority Leader Chuck Schumer (D-N.Y.) had previously proposed $1.6 million for border security, an amount rejected by the president.

Law enforcement agencies were affected twofold by the border funding disagreement: In addition to having federal workers furloughed during the partial shutdown, the DOJ also has not received full annual funding for important law enforcement grant programs, including Edward Byrne Memorial Justice Assistance (Byrne-JAG) and Community Oriented Policing Services (COPS) grants.

Pending an agreement between the president and congressional leadership, Congress has proposed to allocate $30.7 billion to the DOJ — $402.5 million more than in 2018. This includes $2.9 billion for grant programs like COPS and Byrne-JAG. While the appropriations bill that funds the DOJ, the Commerce-Justice-Science (CJS) legislation, has not technically passed through Congress, the chairman of the Senate’s Commerce Justice Science Appropriations Subcommittee, Jerry Moran (R-Kan.), stated that he expects that the final bill passed by Congress will contain all of the proposed DOJ funding.

Senate Judiciary Committee Hears AG Nominee’s Priorities for the DOJ

At his confirmation hearing before the Senate Judiciary Committee on January 15 and 16, attorney general nominee William Barr identified working with state and local law enforcement to combat crime, along with enforcing and improving U.S. immigration law, as some of the DOJ’s priorities under his leadership. Barr also emphasized partnering with state and local law enforcement on combating human trafficking.

While Senate Judiciary Committee Republicans focused on Barr’s stance on U.S. immigration, Democrats wanted a commitment from Barr that he would not undercut Special Counsel Robert Mueller’s investigation and would make Mueller’s findings public. Barr promised not to intervene in the investigation and said that he would publicize “as much as [he could]” of the investigation. Following the hearing, some Democratic senators, including Kamala Harris (D-Calif.), said they would vote against confirming Barr. Other Senate Democrats, however, including Chris Coons (D-Del.), said they were encouraged by Barr’s commitment to uphold the Mueller investigation and would fully consider supporting him. Ranking committee member Dianne Feinstein (D-Calif.) referred to Barr as “bright” and “capable,” noting his impressive background (he served as attorney general under the late President George H.W. Bush). Feinstein has said, however, that her support is contingent on the commitment from Barr that he will make the Mueller investigation public. The Senate Judiciary Committee will likely vote on Barr’s confirmation in the coming weeks.

PORAC’s Legislative Priorities for 2019

In 2019, PORAC plans to engage in robust federal advocacy and build upon its relationships and legislative accomplishments from 2018. A survey was conducted during PORAC’s annual Conference in November, asking members to prioritize which issues were most important to them. Based on the responses and additional discussions with the Board of Directors, PORAC has created a legislative agenda for the upcoming year that includes the following issues.

Fully funding law enforcement grants: Grant programs that award funding to law enforcement are administered by the DOJ (including Byrne-JAG and COPS) and funded by Congress through the CJS appropriations bill (one of 12 annual funding bills that must be passed by Congress and signed by the president in order to fund the government). Throughout 2019, PORAC will continue to work with policymakers to maintain and expand existing grant funding for state and local law enforcement.

Pension reform: Public pension plans are governed by both federal and state laws. Federal developments that could affect public pension systems include legislation pertaining to tax treatment of retirement savings, Social Security, proposals to replace defined-benefit pension plans, and duplicative and costly transparency requirements for sponsors of state and local government employee pension benefit plans. During the last Congress, PORAC met with lawmakers to provide input on bills that would, for example, increase Social Security benefits for public safety officers. In 2019, PORAC will continue to advocate for legislation to reform the public pension system and eliminate provisions that negatively and disproportionately affect law enforcement.

Preserving the use-of-force standard: Under current law, a police officer is permitted to use force to arrest, prevent escape or overcome resistance of a suspect. An officer is allowed to use deadly force if that force is “reasonable” in light of a fear of death or serious bodily harm to the officer or another person. In 2018, the California Legislature considered a measure (AB 931) that would change this standard and only permit use of deadly force when “necessary” instead of when reasonable. Such a standard would restrict when officers would be able to use force, handicapping their ability to do their job and keep communities safe. In 2019, PORAC will assess whether there is a federal nexus to efforts in the states to alter the use-of-force standard.

Labor reform: During the 115th Congress, lawmakers considered bipartisan legislation to establish a minimum set of collective bargaining rights that states would be required to provide to public safety employees. Because collective bargaining has a bipartisan component, we expect similar (and additional) bills to be introduced or reintroduced during the 116th Congress, and PORAC will be actively engaged on this legislation. PORAC will also advocate for reforming the “constructive receipt” doctrine, a federal tax doctrine that requires certain incomes to be taxed, including compensatory (comp) time. Due to constructive receipt, in certain parts of California, police officers are taxed (sometimes multiple times) on income they never physically receive. Because police officers receive comp time instead of overtime, this doctrine is particularly damaging for law enforcement. We plan to advocate heavily for a legislative fix to this issue, which negatively affects many of PORAC’s members.

Reforming the criminal justice system: In the waning days of 2018, Congress passed (and the president signed) the First Step Act,2 a bill to reform the criminal justice system. PORAC opposed this legislation based on experiences in California under Propositions 47 and 57. We expect the House Judiciary Committee to take up additional criminal justice reform proposals this session.

Further, PORAC will advocate for an increase in the number of federal judgeships in California. As federal law requires judges to prioritize criminal cases, the limited number of judges in California’s federal courts leads to a backlog in unaddressed civil cases. Due to law enforcement’s role, police officers are often subject to these unexamined civil lawsuits that linger for years, contributing to stress at home and sapping morale in the workplace. Increasing the number of federal judgeships within California would push these cases more quickly through the legal system, reducing the amount of stress and increasing morale in police officers’ personal and professional life, respectively.

Member requests and overall approach: As always, PORAC will prioritize review of legislation where a legislator from the California delegation has specifically reached out to PORAC for support or consideration. Before advocating for legislation, PORAC thoroughly assesses it and decides whether to take a position. Following this process, PORAC actively advocates for (or against) the legislation and/or works to improve the bill. PORAC will continue to take this same thoughtful approach in 2019 when advocating on behalf of our members to Congress.

 

1Agencies that have been closed since the shutdown commenced on December 21 include the Department of Agriculture, the Food and Drug Administration, the State Department, the Justice Department, the Commerce Department, the Department of Homeland Security, the Treasury Department, the Internal Revenue Service, the Interior Department, the Environmental Protection Agency, the Department of Transportation, and the Department of Housing and Urban Development.

2The First Step Act is a bill that overhauls federal prison and sentencing laws. The bill passed the Senate and the House by sizable margins (358–36 and 87–12, respectively). In a letter of opposition to the bill, written to the House and Senate Judiciary Committee leadership, PORAC asked Congress to delay passage of the First Step Act in favor of taking a more measured approach, and drafting legislation that takes into account California’s experience with Propositions 47 and 57 and the impact those propositions have had on PORAC’s members and the citizens of California.

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 – The Midterms

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

On November 6, 383 Congress members and 35 senators fought to win their respective reelection bids. To secure a majority in the House, a party must win 218 of 435 seats. In the Senate, because the vice president can break a tie vote, the party of the president has to win only 50 of 100 seats, while the other party must win 51 seats to obtain a majority. In the House, Democrats successfully upended Republican control, reaching 225 seats, with nine key races still undecided at the time this issue went to print. In the Senate, Republicans maintained their majority, increasing the number of seats they hold by “flipping” two former Democratic senators’ seats (Senators Claire McCaskill (Missouri) and Joe Donnelly (Indiana).

While the Democrats did pick up Republican Senate seats held by Senator Dean Heller in Nevada and retiring Senator Jeff Flake in Arizona, Republicans flipped two Democratic Senate seats. As of this printing, two Senate races remain undecided. Incumbent Senator Bill Nelson (D-Florida) trails current Florida Governor Rick Scott in a race that’s too close to call, while the two candidates vying for a Mississippi special election seat were both unsuccessful in securing the mandatory 50% needed to avoid a runoff election; they will face each other again on November 27.

Despite the number of races yet to be called, the split in party control will result in a divided government until the next elections in 2020. Despite this, law enforcement issues will likely continue to receive significant attention. Below we have analyzed the outcomes of the midterms in California and, more broadly, how the change in House leadership and restructuring in the Senate will impact law enforcement issues.

Results of the California Elections

During the midterm elections, the 51 members of Congress from California as well as the state’s senior senator, Dianne Feinstein (D), battled challengers to continue representing California constituencies on Capitol Hill. Of the 51 members who ran for reelection, 47 incumbents and Senator Feinstein won their races. As of November 16, one race in California was still too close to call — the race to replace retiring Representative Ed Royce (R-39). Democratic candidate Gil Cisneros has a slight lead over Republican candidate Young Kim.

Although she had not conceded at the time of this publication, Representative Mimi Walters (R-45) was projected to lose to Democratic opponent, Katie Porter. Representative-Elect Porter has not advocated strongly in favor of or against most law enforcement issues. She has identified herself as a progressive Democrat in favor of “common-sense gun reform,” including mandatory background checks and a ban on assault weapons. Representative Steve Knight (R-25) conceded to his Democratic opponent, Katie Hill. Democrats also picked up an additional California seat, the seat in the 49th Congressional District currently belonging to Darrell Issa (R), who announced that he is retiring at the end of the year.

Because a large majority of Californians voted via mail-in ballot, the final state and federal races could take weeks to determine.

Steve Knight and Katie Hill: Of the 27 races that PORAC endorsed, 25 members won, with Representative Steve Knight being the sole member endorsed to lose his race. Since Knight has been in Congress, PORAC has been closely engaged with him on law enforcement issues. This past year, PORAC collaborated with Knight to craft a bill to strengthen school safety, the “School Training, Equipment, and Protection Act of 2018” (H.R. 5307), and advocated for the bill while on Capitol Hill during the Association’s May fly-in. We anticipate that Representative-Elect Katie Hill, however, will be friendly on law enforcement issues. Hill, the daughter of a police officer, ran on a platform of safety and security, stating that Congress should “prioritize the needs of our peace officers so that they can protect our communities,” emphasizing a tough but smart immigration policy. Because Hill is a first-time politician, we cannot confirm how she will vote on law enforcement issues, but we will be monitoring her decisions throughout the 116th Congress.

Speaker of the House: Current House Minority Leader Nancy Pelosi (D-12) will run for Speaker of the House, the most powerful position in the House of Representatives. Although newly elected progressives and some incumbent members of Congress have voiced strong opposition against Pelosi, she is expected to run uncontested. Elections for Speaker of the House will take place after the Thanksgiving holiday. PORAC will continue to engage with Pelosi on law enforcement matters during visits to Washington, D.C., in 2019.

The Impact of a Democratic House Majority on Law Enforcement

The change in party leadership will result in a “priority shift” for the many committees and for the chamber as a whole. Probable incoming House Judiciary Committee Chairman Jerrold Nadler (D-New York) has already stated that he will increase oversight of the Trump administration, particularly with the president’s recent decision to replace Department of Justice (DOJ) Attorney General Jeff Sessions with Sessions’ chief of staff, now-Acting Attorney General Matthew Whitaker. Apart from government oversight, Democrats will presumably try to address gun control reform — forcing Republicans to vote on the issue. Because Democrats tend to favor government spending, it is likely that there will be increased funding for grant programs, including DOJ grants on which law enforcement relies. PORAC will work with the new members of Congress as well as incumbent members to ensure that grant funding for law enforcement is maintained and expanded.

Although there are partisan issues on the agenda, Democrats are also likely to take up a more bipartisan matter: criminal justice reform. A criminal justice reform bill that passed the House in May was considered by Democrats and some Republicans to be too narrow in its reform agenda; namely the bill addressed only prison reform and did not address sentencing reform. It is possible that House Democrats will work with Senate Republicans and Democrats to pass a broader piece of legislation that also includes sentencing reform. Congress has been working with the White House to introduce a bill that includes sentencing reform to be taken up this Congress. Senate Majority Leader Mitch McConnell has stated that he will bring the bill to the floor if he is assured he has 60 votes from senators, meeting the minimum number to guarantee passage. Given the short time left in this year’s legislative calendar for Congress to complete its list of desired tasks, however, the framework of the current bill or a similar version will most likely be broadened and reintroduced next year under Democratic leadership in the House.

Before the 115th session ends, Congress is working to pass appropriations bills required to fund the government (to avoid a government shutdown) and sign reauthorization legislation into law. One of the reauthorization bills, the Violence Against Women Act (VAWA) provides essential funding to law enforcement to combat violent crimes against women. PORAC has actively advocated for VAWA’s reauthorization and, in September, VAWA was provided a short extension, but VAWA currently expires on December 7. In the event that the reauthorization is pushed until the next congressional session, Democrats are likely to demand more funding for VAWA and ensure that the Act is reauthorized for several years.

We are also optimistic about new opportunities for pension reform in the upcoming Congress. The likely incoming House Ways and Means Committee Chairman — the Committee that has primary authority over pension reform — Representative Richie Neal (D-Massachusetts) has championed retirement savings and pension reform issues in the current Congress. 

The 2019 Senate Judiciary Committee

While the Senate remains in Republican hands, there will likely be shifts in the Senate Judiciary Committees’ Republican leadership. By the Thanksgiving holiday, current Committee chairman, Chuck Grassley (R-Iowa), is expected to announce whether he will seek to hold the gavel for the Senate Finance Committee, abdicating his current chairmanship. In the event that Senator Grassley chooses to lead the Senate Finance Committee, under seniority rules, Senator Lindsey Graham (R-South Carolina) is likely to become Senate Judiciary Committee chairman. At the time of this publication, Senator Grassley had not made a decision on which chairmanship to yield.

Under a Chairman Graham, the Senate Judiciary Committee will likely undergo some immediate changes. For example, Senator Graham has publicly announced that he will dispose of the current “blue-slip” process, which allows senators from the minority party to provide a favorable or unfavorable opinion on federal circuit court nominees in their state. Senator Graham also stated that the Committee would be “full throttle” when it comes to confirming judges.

Despite all, however, Senator Feinstein is expected to remain ranking member. PORAC looks forward to continuing its work with the Senate.

Federal Legislation – What’s Happening in Washington

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

Despite the House of Representatives being in recess since September 30, October was an interesting month on Capitol Hill. First, the Senate wrapped up a 3-monthslong fight to appoint Brett Kavanaugh to the U.S. Supreme Court. On October 6, the Senate narrowly confirmed Kavanaugh by a vote of 51 to 49. West Virginia Democratic Senator Joe Manchin offered the sole “Yes” vote from his party, while Alaska Republican Lisa Murkowski was the lone senator from hers to oppose Kavanaugh.

Aside from the Kavanaugh vote, the Senate split its time between confirming other judicial nominees and sending what Senate Majority Leader Mitch McConnell (R-Kentucky) deemed “key bills” to President Trump’s desk before the November 6 midterm elections, including appropriations legislation to fund the government and a package of opioid-related bills. While Congress successfully passed three appropriations bills on September 28 to avoid a government shutdown, lawmakers packaged the remaining nine bills, including the Commerce, Justice, Science Appropriations Act (which funds the Department of Justice), into a short-term extension bill that expires December 7.

In addition to the funding bills, on October 3, the Senate passed H.R. 6, a package of legislation dedicated to fighting the opioid crisis and combating the trafficking of illegal drugs across the border. The president was expected to sign it into law around the time this issue went to print. The Senate also passed legislation that PORAC has endorsed — the Justice Served Act (H.R. 4854/S. 2345), which would give funding to law enforcement to tackle the backlog of cases with DNA evidence. President Trump signed that into law on October 10. 

While the Senate worked vigorously to accomplish tasks on a tight, midterm-driven timeline, members of the House, including the 53 members of the California delegation, have been at home campaigning, as all 435 of them are up for re-election. Although Republicans currently hold a 42-seat majority, experts predict that Democrats will win more seats than Republicans in November, which would “flip the House,” ceding control to the Democrats. Due to the number of tight races in California, political analysts have deemed it a “battleground” state whose outcomes greatly impact which party will win the House. Five Republican incumbents are facing particularly fierce challenges in what are considered “races to watch,” namely the 25th (Steve Knight), 48th (Dana Rohrabacher), 45th (Mimi Walters), 10th (Jeff Denham) and 50th (Duncan Hunter) districts.

PORAC on Capitol Hill in 2018: Year in Review

PORAC engaged in robust and successful federal advocacy during the 115th Congress. The Association had a number of legislative accomplishments, continued to provide input to Congress on several issues important to its members, strengthened new and existing relationships with policymakers and cemented its standing as a primary resource for lawmakers.

Throughout the year, lawmakers sought PORAC’s input on a number of issues, including grant funding, gun violence, school safety, sexual assault and mental health. PORAC provided direct law enforcement expertise to various members of Congress to assist them in improving legislation and finding ways to bolster resources for law enforcement.

As a primary example, in March, the Senate Judiciary Committee (which is predominantly in charge of introducing and passing law enforcement–related legislation) asked PORAC to submit testimony on the Violence Against Women Act (VAWA). VAWA provides significant grant funding to law enforcement to investigate and prosecute violent crimes against women. Highlighting a California community-based domestic violence reduction initiative, PORAC submitted compelling testimony explaining why the Senate Judiciary Committee should reauthorize VAWA. Since testifying, PORAC has worked with the Senate Judiciary and other committees to push for the act’s reauthorization. Although VAWA has not yet been officially reauthorized, Congress enacted a short-term extension that lasts until December 7. PORAC continues to work with Congress to guarantee that VAWA is reauthorized long-term, ensuring that PORAC’s members receive crucial grant funding.

Over the last year, PORAC has also continued to strengthen its relationships with the California delegation, meeting with nearly 50 congressional offices and both senators during its D.C. fly-ins, as well as with many members and their staff in their California district offices. While California is a powerhouse delegation because of its size, PORAC nonetheless worked to form strong relationships with other state delegations that are trying to pass law enforcement–related legislation, including offices from Louisiana, Nebraska, New Jersey and Texas. For example, PORAC identified a bill sponsored by a New Jersey congressman that would create a DOJ program to fund community health centers that place social workers with law enforcement agencies. PORAC contacted the congressman’s office and offered improvements to the bill that would shore up benefits for law enforcement. The office has maintained close contact with PORAC, and plans to reintroduce the bill with PORAC’s recommendations included.

In addition, PORAC has strengthened relationships with certain congressional committees, including the House and Senate Judiciary Committees. Members from various states and committees seek both PORAC’s issue expertise and members’ anecdotal experiences.

PORAC has worked to enhance its relationships with the executive branch as well, meeting with White House officials and DOJ attorneys. In May, PORAC met with Attorney General Jeff Sessions and advocated for greater law enforcement funding. PORAC remains engaged with the DOJ and White House on such matters. In 2018, PORAC also submitted letters of support to President Donald Trump and Attorney General Sessions on other issues, including increasing the number of district judgeships in California.

Before advocating for legislation, PORAC thoroughly reviews the bill in question and decides whether to support it. After establishing a position, PORAC is active in moving the legislation forward or working to improve the bill. For example, in February, after reviewing and taking a position in support of the aforementioned Justice Served Act, PORAC wrote a letter of support for the legislation, which it shared with the Senate and House Judiciary Committees, the two California senators and the entire California House delegation. PORAC explained that the Justice Served Act would give its members resources to help reduce the backlog of cold cases with DNA evidence. PORAC argued that the legislation would enhance the overall criminal justice system by providing specific funding for these cases for which law enforcement does not have additional resources to dedicate.

In addition, when PORAC was in D.C. for its annual fly-in in May, members had the opportunity to explain the importance of the Justice Served Act to members of Congress. During the week of PORAC’s fly-in, the House passed the Justice Served Act by a nearly unanimous vote. The Senate followed suit on September 28. This month, while PORAC was in D.C. for the opening of the National Law Enforcement Museum, President Donald Trump signed the Justice Served Act into law. Now, the DOJ will designate funding for law enforcement in order to solve the cold cases with DNA evidence. By fiercely advocating for the legislation, PORAC played an instrumental role in ensuring that members of Congress recognized its importance. The Justice Served Act is just one of the over 80 bills that PORAC has taken a stance on in 2018. PORAC will continue to review and advocate for legislation that benefits its members.