Those are the most cynical ways to look at the deterioration in Congress over what to do about policing legislation, a topic that has animated the country since George Floyd’s killing in Minneapolis. On Wednesday, Republicans were not able to get enough Democratic votes to move forward their bill.
Police restructuring is not totally dead. But it is hard to see how both sides will ever compromise on a piece of legislation that could pass the Republican-controlled Senate, make it through the Democratic-controlled House and get signed by President Trump.
The frustrating thing is that both sides agree something should be done — public opinion and nationwide protests demand it. But a familiar scenario is playing out, in which Democrats and Republicans cannot agree on the fundamentals, so they blame one another for not compromising, and that partisan fighting makes it more difficult to actually get something done.
How did we get to the brink of failure on policing legislation? Let’s review the major flash points.
1. Each side put together legislation unilaterally. This seems to be the original sin. Senate Democrats, some of whom had been focused on police restructuring well before Floyd’s killing, were out with a bill in early June. Senate Republicans — traditionally the party of law and order — were not expecting to have to come up with policing legislation in an election year, and they scrambled to put something together by the next week, led by the Senate’s only black Republican, Tim Scott of South Carolina.
There were some commonalities in each side’s bill, like creating a national police registry of misconduct. Some Republican senators, including Senate Judiciary Chairman Lindsey O. Graham (R-S.C.), expressed a willingness to consider Democrats’ top priority to make it easier for people to sue police after incidents. But both sides knew their bill as presented would not immediately be accepted by the other.
In the other chamber of Congress, House Democrats also put together a large package of policing changes themselves. They do not need a bipartisan majority to pass something in the House, so they are expected to pass it this week with few to no Republican votes. But Senate Republicans have said the House bill will never get a vote in their chamber.
If something passes the Senate, the House and Senate will have to agree on a compromise bill, which is another long shot.
2. Trump made it clear he would be inclined to side with the police. A bill needs the president to sign it to become law. As Congress was debating what to do, Trump introduced an executive order that both sides agreed did not do much, other than encourage best-practice training and set up a database of police misconduct. He signed the order with representatives of law enforcement and police unions behind him and then held a rally in Tulsa where he championed police. His White House said making it easier to sue police, by changing what’s known as qualified immunity, was a nonstarter.
It was a message to Senate Republicans that he was not interested in any big restructuring that could upset police unions. Trump signed his executive order on the same day Graham held a hearing in his Judiciary Committee to try to come up with compromises. Graham said that after the hearing, Democrats approached him and said they wanted to find ways to get something done. But down the street at the White House, Trump did not sound open to that.
3. Senate Republicans said they were going to hold a vote on their bill. Republicans knew they needed to act quickly to capture the momentum of the protests, to which polling showed a majority of Republicans are sympathetic. So Senate Majority Leader Mitch McConnell (R-Ky.) decided to set a vote for Wednesday.
But the Senate does not take just a yes-or-no vote like the House does, in which a majority wins. In controversial legislation, the Senate first has to agree to hold a limited debate. That takes 60 out of 100 votes. Republicans hold only 53 Senate seats, so McConnell knew he would need seven Democrats to move the bill one step from a full vote.
That vote to allow debate is more important than Republicans made it seem, though Republicans point out that Democrats have opportunities along the way to stop it. "There’s literally no harm done by debating this important topic,” McConnell said.
It requires bipartisanship to makes changes and move the bill forward, meaning Democrats have more options to block the bill later. But they also have limited options to get amendments passed that will change the legislation.
Once debate gets going, any senator can introduce an amendment to the bill. So Senate Democrats could propose an amendment to ban no-knock warrants in most cases, for example — a fact Republicans have brought up several times over the past few days. It usually takes 60 votes to approve an amendment, so while Democrats (who have 47 votes) aren’t likely to get any of their amendments passed without sizable Republican support, they also can also block Republican ones. To end debate and move to a final passage vote, it will require another 60 votes.
After all that, it takes only a majority of senators to pass the ultimate bill. Senate Republicans have that majority. So if Republicans managed to move the bill forward and end debate with support from seven Democratic senators, they have the power to pass it themselves.
4. Senate Democrats decided to block the bill from moving forward. All but three senators who caucus with Democrats voted against letting the Republicans’ bill get limited debate. Their reason: The legislation proposes a number of commissions and data sharing between police and the federal government, with the intent of studying how chokeholds and no-knock warrants and other controversial practices are used. Democrats argue that now is not the time to study police use of force; now is the time to limit it.
“It was going to lose the minute he put it together,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said after the vote on Republicans’ bill, speaking of McConnell. “And the most cynical among us would say that’s why he did it.” Schumer asked McConnell to get Democrats and Republicans together to find a compromise legislation. So far, there is no indication McConnell will do that.
Now both sides are trading barbs, which is not conducive to compromise.
5. There is political incentive for each side not to compromise, too. Democrats are technically the party blocking a police restructuring bill from getting debate on the Senate floor, at a moment when the nation is really intent on seeing something get done. It puts Republicans on the offensive and Democrats on the defensive. It is up to Democrats to explain to voters why they are blocking this bill from moving forward, and that requires an explanation of Senate rules about votes to start debate and votes to pass legislation. “We think the pressure on Republicans will be large and enormous,” Schumer said Wednesday.
But Democrats also see a Senate majority increasingly in their reach in November. If they can successfully argue Republicans are not serious about policing legislation, could this help give their candidates in states like Georgia, North Carolina, Arizona, Maine and Colorado the momentum they need to unseat Republicans and take back the majority?
As for Republicans, there is a political reason they were spurred into action on policing legislation, even though lawmakers tend to avoid controversial topics that are out of their comfort zone in an election year. As Democrats block their bill from debate, they risk going home over the Fourth of July holiday empty-handed.
But there is a sizable chunk of Republicans’ base that is aligned with Trump against major changes to how to police in America. And since it was Democrats who cast the votes that blocked this bill from moving forward, they can say they tried but obstructionism from the other side is to blame for no progress.
There could be some kind of zombie compromise that rises from Wednesday’s failed vote. Such compromise happened just a few months ago on a coronavirus relief package. But it will require bipartisanship to make that happen, and so far, we have not seen evidence of the Senate wanting that.
This has been corrected to clarify Senate procedure on voting, that it takes 60 votes to pass amendments and two sets of 60 votes to move the legislation for a vote to final passage.