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Congress can’t easily pass police reforms. Here’s why.

Public attention will shift — and the Republican Senate will ignore House action.

- June 5, 2020

Widespread national outrage over the brutal death of George Floyd at the hands of Minneapolis police has renewed public demand for Congress to address police misconduct and remedy racial injustice in the United States. New polls show strong bipartisan support for police reform and sympathy for nonviolent protesters. What’s more, there are green shoots of bipartisanship for some policing reforms, such as weakening the legal shield that protects police accused of misconduct and curtailing transfers of excess military equipment to local police forces.

Still, reformers on Capitol Hill face a tough road, especially if and when media attention to the protests wanes. Differences between and within the parties — coupled with the underrepresentation of blacks in the Senate — raise barriers to legislative action. Even symbolic measures that express outrage over Floyd’s death face a heavy slog.

Media — and public — attention will probably wane

The news media have increasingly covered episodes of police misconduct in recent years. But even intense media focus — and public interest — inevitably fades. Decades ago, economist Anthony Downs called this the “issue attention cycle”: A startling event — like police killing Michael Brown, Eric Garner or George Floyd — provokes a surge in media attention and public demand for action. But when the difficulty of reform becomes clear, reporters move on to the next big crisis and public interest wanes.

Social issues that don’t directly harm most people are especially prone to the cycle. That helps explain why coverage of past episodes of police misconduct against racial minorities usually dwindles and Congress fails to act. True, a Republican-led Congress and President Trump in 2018 enacted significant criminal justice reform that addressed some racial disparities in sentencing, but that’s probably because conservatives — not street protesters — pushed Republicans to act.

The president could snuff out flickers of bipartisanship

House Democrats are likely to move quickly this month; the Republican Senate, probably not.

The 53-member Congressional Black Caucus (CBC) is working (so far largely remotely, given the coronavirus pandemic) on dozens of measures to address police misconduct, racial inequities in local policing and the deep roots of racial discrimination. Democratic leaders have yet to decide how they will advance the measures. One option would package the reforms into a single “messaging” bill to signal Democrats’ commitment to addressing these issues. Alternatively, leaders could bring a series of narrower bills to the floor, a tactic that would both force Republicans to go on record multiple times for or against each reform but also give any wavering swing-district Democrats a chance to break with more liberal colleagues.

But opposition from Trump would surely compel House Republicans to oppose the Democrats’ measures, likely leaving the bills dead on arrival in the GOP-led Senate. True, there are glimmers of GOP support for some measures, notably Sen. Tim Scott’s (R-S.C.) push to create and fund a national registry of police misconduct. But absent support from the president, Senate Majority Leader Mitch McConnell (R-Ky.) is less likely to put issues of police and race on the Senate floor, especially if measures divide Republicans into rival camps. And although some Republicans rebuked the president for his administration’s use of force against peaceful protesters to clear space for a photo op, few GOP senators appear eager to legislate.

Nor is there currently much electoral pressure on the House or Senate Republican conferences to act: One-quarter of GOP voters report that race relations will be a major factor in their vote this fall (compared with half of Democrats and a third of independents).

Black voices are diminished in the Senate

Racial disparities between the two chambers also raise obstacles. House lawmakers formed the CBC in 1971 with just 13 members. Today, the racial makeup of the House reflects the proportion of blacks in the United States — roughly 13 percent. Lawmakers’ race and ethnicity matters in how members represent their constituents, as evidenced by the CBC’s swift legislative efforts to address issues raised by the killing of Floyd and other victims of police brutality.

Not so in the Senate. Studies of Senate malapportionment typically emphasize the overrepresentation of rural interests. And given the whiteness of rural states, black interests are decidedly unrepresented in the Senate. Just one Republican and two Democrats are black. Racial disparities in the Senate make it less likely that issues addressing racial inequities will make it onto the Senate’s agenda, particularly when Republicans control the chamber.

Will this time be different?

Of course, George Floyd was murdered during the coronavirus pandemic, which has sickened thousands, thrown millions out of work and disproportionately affected communities of color. That might help explain why protests have spread like wildfires in all 50 states and, by one estimate, 430 cities and towns. Notably, protests have also spread to wealthy enclaves in Los Angeles, Chicago and Atlanta, locations previous protest waves typically skipped over. And countless businesses have urged action to ameliorate racial injustices.

Recent surveys also capture the breadth of public reaction to the issue of police misconduct.

In one CBS News survey, three-quarters of Republicans and 90 percent of Democrats agreed that Minneapolis police officers used an unjustifiable amount of force when detaining Floyd. And statements by former president George W. Bush, former Trump defense secretary Jim Mattis and other GOP elites opposing Trump’s militarized response to the protests and supporting reform might also generate GOP support for action. Sen. Lisa Murkowski (R-Alaska) even noted that she was struggling over whether to vote for Trump this fall.

If it continues, this bipartisan public reaction could help generate public pressure for action that would be difficult for lawmakers to ignore, especially if most protests stay nonviolent. But broad public support for action — most recently to allow young undocumented immigrants stay and work legally in the United States or to tighten gun regulations — has not yet compelled Republicans to join Democrats at the bargaining table. That could well be the fate for these renewed efforts to eliminate racial inequities in policing and beyond.