What's Better? Something or Nothing? Police Reform In an Age of Polarization.

I’ve been writing a lot about baseball lately, mostly because baseball, even with people like Rob Manfred and Tony Clark unable to negotiate anything, is better than politics today, which says something.  But it’s back to the real world.

A big issue in Washington is police reform.  Your first thought about Washington and police reform might be like mine: Huh?  Police, like schools, seems like the epitome of a state and local issue.   We need police reforms (for one of my ideas, see here), but what’s the federal government got to do with it?  State governments, local governments.  Police reform is their issue.  Congress can’t pass laws telling state and local governments how to run their police forces.  About all the federal government can do (with one exception I will get to below) is cut back on the money it gives to state and local police departments if they do things the federal government doesn’t like.  It’s not much, but it’s something.  So the people in Washington are talking about a police reform bill which would increase or decrease the amount of money Washington gives to state and local police departments.

The House Democrats are working on passing a bill.  Senator Tim Scott (R, S.C.) is sponsoring the Republican bill in the Senate.  Not surprisingly, the two bills are different.  They include some things that are the same, or close enough that compromises ought to be able to be reached, but there is at least one big difference.  Which gets to the exception that I mentioned above.  The one thing the federal government can do about police departments.

In 1871, at the request of President Ulysses S. Grant, Congress passed the Civil Rights Act of 1871 or the Ku Klux Klan Act.  President Grant wanted this law to, among other things, let him use federal troops to enforce the Fourteenth Amendment in the South – because the states weren’t doing it.  Included in the law was a provision that is now known as Section 1983.  This provision provides, in part:

“Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects … any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law … or other proper proceeding for redress ….”

In other words, people whose rights under the Constitution have been violated by somebody acting under color of state law can sue that person for damages.  

The effect of this provision, however, has been limited by U.S. Supreme Court decisions, beginning in 1967, that created the idea of a “qualified immunity” exception to Section 1983.  The idea of qualified immunity is that public officials shouldn’t be liable under Section 1983 if they acted in good faith or thought their conduct was authorized under law.  This has limited the ability of people to use Section 1983 against, inter alia, police brutality.

The House Democrats want to limit the qualified immunity exception to Section 1983.  President Trump, however, has said that any change to the qualified immunity doctrine is a “red line” for him.  He’ll veto any bill that tries to change it.  Senator Scott’s view is that he wants to get a police reform bill passed, and if President Trump is going to veto any bill that tries to change the qualified immunity doctrine, then he won’t include such a provision. 

The House Democrats don’t agree.  Their position is that they won’t support a police reform bill unless it includes a provision limiting the qualified immunity doctrine.  While Senator Scott figures he’ll get whatever he can and worry about what he can’t get later, the House Democrats think that, if they can’t get the qualified immunity provision changed, there is no reason to pass a bill at all.  In other words, Senator Scott feels that something is better than nothing.  The Democrats feel that nothing is better than something if they can’t get Section 1983 fixed.

I don’t know which is the better view (actually, I have a view, but for purposes of this post, I’ll not go into it), but it does remind me of some of the immigration debates during the Obama administration.  It seemed, at times, that majorities of members in both houses of Congress thought that “Dreamers”¹ should be protected.  The problem was that there were a number of Democrats who wouldn’t agree to pass a Dreamers-only bill.  They wanted to protect Dreamers, but they were only willing to do it as part of a comprehensive immigration reform bill.  If they couldn’t get a comprehensive bill, then they were willing to leave Dreamers unprotected.  It was important to protect Dreamers, but it was more important to get a comprehensive immigration reform bill.

Which caused a problem because there were a number of Republican who were willing to protect Dreamers but were not willing to agree to the provisions the Democrats wanted in a comprehensive immigration bill.  Just as Democrats were willing to leave Dreamers unprotected if they couldn’t get a comprehensive bill. Republican were willing to leave Dreamers unprotected rather than pass a comprehensive bill.  So, even though there was a majority of members who wanted, or at least were willing, to protect Dreamers, and a Dreamers-only bill could have passed, the Democrats wouldn’t accept a dreamers-only bill, and Republicans wouldn’t vote for a comprehensive immigration reform bill.  And nothing was done.

It also reminds me of the situation we had in Illinois during the first two-and-a-half years of Republican Bruce Rauner’s term as governor.  Governor Rauner thought Illinois needed some changes.  Since the legislature was overwhelmingly Democratic, he knew that they wouldn’t support his changes as stand-alone bills.  So Governor Rauner said that he wouldn’t approve a budget for the state, unless the legislature agreed to make some of his changes.  The problem was that the Democratic Speaker of the Illinois House of Representatives didn’t want to make any of Governor Rauner’s changes, and he was willing to leave the state without a budget before he would agree to any of the Governor’s changes.  So, we had a situation where the Governor felt the state was better off not having a budget than having a budget that without at least a few of his changes.  And the Speaker of the House felt the state was better off not having a budget than making any of the Governor’s changes.  With the two of them taking these positions, Illinois went two years without a budget (before, effectively, Governor Rauner caved).² 

The question in the Illinois situation is whether the damage to the State of making some of the changes the Governor wanted would have been more or less than the damage of not having a budget for two-plus years.  I don’t know.  Similarly, was it so important to fight for – or against – a comprehensive immigration reform bill that we needed to leave the Dreamers unprotected?  Once again, I don’t know.

But this is what is now happening again with the police reform bill in Congress.  One side is saying that it is better to do nothing than it is do a few things but not get the qualified immunity doctrine changed.  The other side is saying that it is better to nothing than to make some needed changes, if the cost of getting agreement on those changes is to change the qualified immunity doctrine.  I will leave it to others to say who is right.
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¹ As mentioned here, “Dreamers” is the name for people, now adults, who were brought to the U.S. illegally as children.
² For my thoughts on the situation at the time, see here.