It all adds up to a punishing test for congressional Democrats, who are looking for concrete legislative wins but also can’t alienate progressive groups if they want to hold on to the House and the Senate in 2022. And they’re trying to stay hopeful.
“We are close,” Rep. Karen Bass (D-Calif.), the lead sponsor of House Democrats’ policing bill, said this week at a panel hosted by Brave New Films. Yet Bass noted in the next breath that the urgency of last year’s massive protests against Floyd’s murder has faded somewhat: “There are not hundreds of thousands of people out on the streets right now. So we need the pressure.”
House Democrats and activists can find common ground on eliminating the legal doctrine known as qualified immunity, which currently shields officers from civil liability for misdeeds, but Republicans have no interest in outright abolishing it. Sen. Tim Scott (R-S.C.), his party’s lead negotiator on the issue, called qualified immunity’s axing a “poison pill” for the GOP.
On other issues, however, the two parties are getting closer to an accord. As of late Friday, staff were nearing compromise on provisions limiting chokeholds, no-knock warrants, and the transfer of military equipment to police. That progress, first reported by the Wall Street Journal, was confirmed by a source familiar with the negotiations.
But even if lawmakers reach a compromise, it’s unclear that it would pass muster with activists and progressive Democrats who want outright bans on all three of those elements. The parties are also still far apart on police misconduct prosecutions, an issue as thorny as qualified immunity; both issues are among reform advocates’ top priorities in the talks.
Two weeks after the House passed its policing bill in March, the first sign of activist resistance came when leaders with the Movement for Black Lives sent a nine-page letter to the House Appropriations Committee saying the legislation “doubles down on failed approaches to police reform.”
That group has floated another proposal that redirects funding from police to community services, known as the BREATHE Act. It counts support from a handful of progressives in the House, including Reps. Ayanna Pressley (D-Mass.), Rashida Tlaib (D-Mich.) and Cori Bush (D-Mo.), but has never been formally introduced in either chamber.
Nonetheless, activists are frustrated that Democrats haven’t even given the measure a hearing.
“We’re always open to debate and to talk through the legislation,” said Amara Enyia, policy and research coordinator with the Movement for Black Lives. “We’re open to feedback. But at a minimum, that should be heard.”
Leaders of long-established civil rights groups have taken a different approach. While most have not been directly involved in this round of policy discussions, they won’t publicly criticize Democratic lawmakers’ efforts as insufficient. Rather than setting firm conditions for the talks, they’re putting more subtle pressure on negotiators over portions of the House-passed bill that they see as important — particularly qualified immunity.
Derrick Johnson, president of the NAACP, said he was “anxiously awaiting” an outcome from negotiations but emphasized reforming qualified immunity; changing a federal criminal statute prohibiting officers from depriving people of their constitutional rights; instituting a federal registry of police misconduct; and the military equipment transfer prohibition as his goals for a final deal.
However, Johnson — echoed by National Urban League President Marc Morial — described changing qualified immunity as a top priority.
“If officers cause harm, there must be accountability,” Johnson said.
Advocates in touch with negotiators say they see progress compared to last year. Holly Harris, president and executive director of the Justice Action Network, implored “both sides to redouble their efforts” to reach a deal.
As a way to bridge the partisan gap on qualified immunity, Scott has suggested allowing individuals to bring civil suits against police departments rather than individual officers and requiring cities to pay the associated costs. Sen. Sheldon Whitehouse (D-R.I.) has proposed a similar change, though neither proposal has been publicly released.
When it comes to police misconduct prosecutions, civil rights leaders of all backgrounds want current law changed to make the process easier. They say the federal prohibition on officers from “willfully” depriving people of rights sets too high a bar. Scott and other Republicans, however, describe lowering that threshold as a redline.
Even as they face competing pressures from activists outside the Capitol and Republicans inside, Democrats are still optimistic they’ll be able to deliver. But they haven’t yet committed to the quick timetable Biden set in his first address to Congress last month.
The president urged Congress to find a “consensus” by May 25 to coincide with the anniversary of Floyd’s killing. Congressional Democrats, however, viewed Biden’s words as an opportunity to speed the pace of negotiations rather than a firm deadline.
House Majority Leader Steny Hoyer’s recent announcement of the chamber’s May agenda did not mention police reform. The House-passed bill remains stalled in the 50-50 Senate, where it lacks the votes to clear a filibuster.
And even if they can translate this week’s success into a comprehensive bipartisan agreement, Democrats may ultimately find long-established civil rights leaders as hard to win over as younger Movement for Black Lives activists.
“Our hope is that we get something concrete done. A real law with teeth in it,” said Sharpton, president of the National Action Network. He added that he expects to be briefed alongside other activist groups and Floyd’s family on any deal once discussions conclude. “If it is not a bill with teeth, then they’re going to have big problems with me, and everybody else.”