A day after former Minneapolis police Officer Derek Chauvin was convicted on all counts, both sides in Washington sought common ground. The Senate’s lead Republican negotiator, South Carolina’s Tim Scott, put forward a potential deal on a sticking point that has stalled talks for the much of the past year.
But hope goes only so far, and the feverish desire among Democratic activists to honor Floyd’s life by passing federal legislation that would hold police accountable for brutality and misconduct is colliding with the realities of a polarized capital. While many Americans — including some Republicans — may approve of the verdict in the Chauvin case, Republicans and Democrats are still struggling to reconcile perspectives on how to make rogue officers accountable for their conduct, creating serious challenges for the proposed legislation.
There is also a broader threat hanging over the compromise efforts: the bitter political forces rocking the country in the wake of Donald Trump’s presidency, which could crush the already limited space for bipartisan action. Republicans eying the midterm elections — and, in some cases, future presidential primary races — have a strong incentive to appeal to grassroots voters by adopting a hardline posture on law and order and to demonize Democrats as radicals who want to defund the police.
Some Republicans may also argue that since justice was achieved in the Floyd case, claims of systemic racism in law enforcement are exaggerated and therefore no action is necessary. This talking point is already emerging on Fox News.
In this brief moment of comity, it is also easy to forget that the GOP’s effort to portray Democrats as a threat to law enforcement — largely by inaccurately suggesting they all supported the radical calls to “defund the police” — was one of their most potent weapons in the 2020 elections and is likely to remain so as they enter the midterm races in 2022.
Even President Joe Biden, who plans to advocate for the George Floyd Justice in Policing Act during his address to a joint session of Congress next Wednesday, acknowledged the political perils for Democrats on policing during a private virtual meeting with civil rights leaders in December.
On the recording, which was obtained by The Intercept, Biden told the activists that Republicans “beat the living hell out of us across the country” in 2020 by arguing the party would “defund the police.” After four years in which Trump and his allies made inroads with the working-class union families who are typically supportive of police, Democrats in swing states may be skittish about leaning too far into criminal justice reform.
GOP shows little appetite to budge
It also remains unclear whether Republicans have any real political incentive to support police reform legislation as they look ahead to next year’s elections. Last July, 58% of Americans said major changes were needed within policing in America, according to a Gallup poll, but only 14% of Republicans agreed with that statement, while 72% of GOP respondents said “minor changes” were needed.
Several Republican strategists cautioned Wednesday that dissatisfaction with police — and disgust with Chauvin’s diabolical acts during his encounter with Floyd last May — should not be mistaken for a groundswell of support for dramatic changes to the laws governing policing in this country within the GOP base.
Support for the Chauvin verdict, veteran Republican pollster Neil Newhouse said, “does not mean that there is support for a national effort to reform the police.”
“There may be bite-sized pieces that Republicans can go for, but 2022 is probably going to be a lower turnout election — a typical midterm election, which makes it a base election,” Newhouse said. “It’s hard to see how moving toward compromise on an issue like this helps motivate your base or even helps win you crossover votes. … Whatever bill the Democrats are pushing forward is probably going to go too far for most moderate Republicans.”
Cognizant of the challenging political terrain in Congress, the Biden administration has begun harnessing the powers of the executive branch to take a more active role on police reform. Attorney General Merrick Garland announced that the Justice Department has begun a federal civil probe into policing practices in Minneapolis to determine whether the police department has “a pattern or practice of unconstitutional or unlawful policing.”
Garland noted that the investigation will look at whether the department uses excessive force and will also examine its training, supervision and “use of force” policies. Biden has also expressed confidence in the leadership of Vanita Gupta, who was confirmed as associate attorney general on Wednesday after GOP Sen. Lisa Murkowski of Alaska broke ranks with her party to back Gupta, stating that she has the skill and experience necessary to help “to root out unconstitutional policing and reform our criminal justice system.”
But executive power has its limits, and ultimately both Biden and Vice President Kamala Harris have acknowledged that changing the laws in Congress offers the most lasting chance of reform.
Signs of hope from the Senate
In the Senate, a real effort to seek compromise appears to be unfolding, led for Republicans by Scott — the only Black GOP senator — and for Democrats by Sen. Cory Booker of New Jersey.
For months talks have been complicated by disagreements over the issue of qualified immunity for police — a judicial doctrine that protects officers from being held personally liable for constitutional violations as long as they do not violate the law — and efforts in the House bill to make it easier to prosecute officers under Section 242 of the criminal code. Reform advocates say qualified immunity effectively offers police impunity to use excessive force in encounters with Black Americans.
Still, Scott said the informal talks could wrap up in the next week or two. And Booker called his Republican colleague an “honest broker.” Democratic Rep. Karen Bass of California, who authored the House bill, has said she believes Scott is sincere in seeking a deal, and on Wednesday he floated a potential compromise on qualified immunity.
“There is a way to put more of the onus of the burden on the department or on the employer than on the employee,” he said Wednesday. “I think that may be a logical step forward and one that as I’ve spoken with Karen Bass over the last several weeks is something that the Democrats are quite receptive to.”
Scott, who has offered a less sweeping bill than the one that passed the Democratic-led House, said changes to Section 242 language were “off the table” for him.
Bass said on CNN’s “The Situation Room with Wolf Blitzer” on Wednesday that it was worth considering Scott’s approach but that police officers needed to be held accountable, in comments that appeared to indicate sharp differences with the South Carolinian.
“Qualified immunity and Section 242 … those are real key components to the bill, and we have to make sure that that’s there,” she said. “That’s why Derek Chauvin felt so cavalier about torturing George Floyd to death.”
Sticking points on key aspects
Any compromise on qualified immunity would have to pass muster with progressives and civil rights groups, who see it as vital to reversing decades of discrimination and brutality toward Black Americans.
Progressive Democratic Rep. Jamaal Bowman of New York told CNN on Wednesday that shifting liability from police officers to their departments would not be acceptable. Reformers argue that police officers must bear individual responsibility for their actions.
“The core of the problem is that it is not just police departments as a whole — it is officers who are allowed to act with impunity,” said Damon Hewitt, acting president and executive director of the nonpartisan Lawyers’ Committee for Civil Rights Under Law.
“Is there anything that is a counterbalance to stop them doing the kind of things that Derek Chauvin did? Liability to the police department would, in my view, be insufficient to do that,” Hewitt said.
Advocates of retaining qualified immunity say that stripping it would cause officers to hesitate in sudden, dangerous situations when force might be necessary and when a failure to act could put them or civilian bystanders at risk.
“Officers perform vital tasks requiring split-second decisions under intense circumstances,” Republican Rep. Carlos Gimenez of Florida said during a debate on the George Floyd Act ahead of its passage in the House in March. Gimenez argued that removing qualified immunity would lead officers to retire and would make the community less safe, as it would be “impossible for them to do their job.”
But while the debate, managed for Republicans by pro-Trump flamethrower Rep. Jim Jordan of Ohio, featured some principled arguments about the bill, it also bristled with the partisan politics that may doom Senate compromise.
“What this bill ultimately does is defund the police,” said Republican Rep. Kat Cammack of Florida, using a catchphrase popularized by Trump and conservative news opinion hosts to boost his hardline “law and order” narrative during the 2020 presidential campaign. “You say this is a reform bill. I say that is B.S.”
Terry Sullivan, a longtime Republican strategist and partner with Firehouse Strategies, said it remains to be seen whether leaders within the two parties can nudge their members to move beyond the current dynamic that has created so much paralysis in Congress, which he described as “an all or nothing game” where “you’d rather have an issue to beat your opponent over the head with” than win a partial victory on policy.
“This is a perfect example of the larger problem right now in Congress,” Sullivan said, “if, given the choice between short-term political victory and long-term policy goals, short-term political victory almost always wins out.”