By Miriam Edelman
This piece is a follow-up to "Fears-Turned Reality: Congress and the District of Columbia in 2023 So Far" (https://www.dc-now.org/post/fears-turned-reality-congress-and-the-district-of-columbia-in-2023-so-far) (April 11, 2023). Bipartisan majorities in both chambers of Congress adopted a resolution seeking to block D.C.’s policing bill from becoming law. President Joe Biden vetoed this Congressional resolution with the result that the policing bill has become law.
While Republicans were generally united in seeking to block DC’s policing bill, fewer Democrats opposed the policing bill than had opposed the DC crime and non-citizen voting laws discussed in the earlier post. Thus, there were fewer Yea votes to approve the anti-DC resolution on the policing bill and more Nays than there had been on the two other DC bills.
Unlike D.C.’s crime bill, D.C.’s policing bill became law. Lessons might have been learned from the experience of the crime bill, which Meagan Hatcher-Mays of Indivisible believes involved Democrats falling for a Republican trap. During discussion earlier this year in relation to crime in D.C., U.S. Senate Mitch McConnell said
The D.C. Council has responded to the crime wave, listen to this, with a new bill to make the city even softer on crime. It lowers maximum penalties for violent crimes and creates new ways to shorten the sentences of incarcerated felons. Well, the good news is the Constitution actually gives the Congress final say over issues in our nation’s capital
and
When the soft-on-crime local government has become this completely incompetent, when members of Congress cannot go about their daily lives without being attacked and families cannot come visit our Capitol in safety, then it’s about time our federal government provides some adult supervision.
On April 19, 2023, the U.S. House of Representatives passed H.J. Res. 42 by a vote of 229 (including 14 Democrats, 229 Republicans) Yea, 189 (including 189 Democrats and zero Republicans) Nay, zero Present, and 17 (including ten Democrats and seven Republicans) Not Voting. The Democrats who voted Yea on this resolution also voted Yea on the prior two anti-D.C. resolutions in 2023.
Not surprisingly, local D.C. leaders reacted negatively to this U.S. House vote. D.C.’s new Attorney General Brian Schwalb said,
Out-of-state politicians don’t know or care more about public safety in Washington, DC than the more than 700,000 residents who live here. Instead of using DC as a political football, members of Congress should focus on addressing the needs of their own communities and allow the residents of the District of Columbia to legislate for ourselves
U.S. House Delegate Eleanor Holmes Norton (D-DC) said,
I am disappointed, but not surprised, that the House passed today’s disapproval resolution to invalidate the District’s policing reform legislation passed by the democratically-elected D.C. Council. Almost 700,000 people live in the nation’s capital, and they are worthy and capable of governing their own local affairs. From today’s vote, I can only conclude that House Republicans disagree with me, believing instead that D.C. residents, a majority of whom are Black and Brown, are incapable and unworthy of the same respect afforded to residents of their own districts. I cannot emphasize strongly enough how offensive that notion is to my values, goals, and more than 30 years of work advocating for D.C. residents in Congress.
There were issues involving the Congressional review period for D.C.’s policing bill. A Congressional review period applies to D.C. bills. The period for the majority of bills is 30 days, and the period for criminal bills is 60 days. The period does not include weekends, federal holidays, and days on which Congress is not in session due to an adjournment sine die or an adjournment resolution. According to the Congressional Research Service, “In practice, the start and end date of the review period is subject to the interpretation of the House or Senate Parliamentarian.” The D.C. Council and Congress disagreed about how to count the days in this review period for D.C.’s policing bill. The D.C. Council said the review period for D.C.’s policing bill was April 21st, but the U.S. House said May 8th.
Although the review period for D.C. policing bill ended on May 8th, Congress continued to act on that piece of legislation, a seemingly unprecedented move. The U.S. Senate Parliamentarian reportedly said that the end of the review period did not prevent the U.S. Senate from voting against that bill, using a procedure that permits any U.S. Senator to call a vote that requires a majority to pass. This official based this guidance on a 1987 precedent involving a disproval resolution that did not relate to D.C. bills.
Local D.C. officials and advocates were displeased with this Parliamentarian’s guidance. Some were surprised in that the interpretation was unprecedented with respect to D.C.-specific bills. This new ruling worries D.C. home rule advocates who fear that this interpretation would increase the U.S. Senate’s power to act against D.C. bills and thus interfere with local lawmaking. This guidance theoretically puts all D.C. laws at risk since Members of Congress could use the 2023 situation as precedent for trying to eliminate any D.C. law they oppose. Hence, it is even more important that D.C. become a state – so that D.C.’s laws would not have to go through a Congressional review period. At least U.S. Senator Richard Blumenthal (D-CT), who supports D.C. statehood, said that as long as the nation’s capital is not a state, Congress can review D.C. bills.
Some advocates questioned the legal validity of a U.S. Senate vote after the review period. D.C. Attorney General Schwalb argued that a U.S. Senate vote after the end of the Congressional review period would would not be legally binding, saying,
Voting to disapprove of legislation after it has already become law has no legal effect. The effort by Senate Republicans to advance a disapproval resolution now, after the review period has expired, is empty political grandstanding.
To the same effect, Delegate Norton also stated, “because the congressional review period outlined in the Home Rule Act expired before today’s Senate vote, the disapproval resolution would have no legal effect.” Emily Cassometus of the D.C. Justice Lab exclaimed,
We are definitely of the opinion that this will have no legal effect whatsoever. It is grandstanding more than anything else. The review period is over whether you use the council’s count, the House’s count, or the Senate’s count, and the Comprehensive Police and Justice Reform Amendment Act is law in D.C. now.
On May 11, 2023, during National Police Week, U.S. Senator J.D. Vance introduced the companion S.J.Res.26 bill. He remarked,
Congress must exert our constitutional authority to keep our nation’s capital safe. It’s a disgrace that the capital of the most powerful nation on earth has become so dangerous, but this sad reality is exactly what we should expect when far-left activists are calling the shots. For the good of every American who lives in or visits this town, I urge my colleagues to support my disapproval motion.
Congressman Andrew Clyde (R-GA), who co-led the U.S. House effort on H.J. Res 42, said,
As Washington’s streets have become overrun with violent criminals and the Metropolitan Police Department faces a historic staffing shortage, the DC Council is doubling down on its anti-police law that will only exacerbate the crime crisis and drive out more MPD officers. Due to DC’s failed local leadership, it is now up to Congress to use its exclusive legislative authority to save our nation’s capital from itself. Since the House recently passed my resolution to repeal the Council’s dangerous law with bipartisan support, it’s now time for the Senate to swiftly follow suit. I thank Senator Vance for leading this commonsense effort in the Senate, and I urge all of his colleagues to join our fight to improve public safety in our nation’s capital.
Rep. Cyde and Andrew Garbarino (R-NY), who co-led the U.S. House efforts on H.J. Res. 42, characterized D.C.’s policing bill as “anti-police.”
U.S. Representative Clyde has been an enemy of home rule in D.C. He has said that D.C.’s locally-run government should be abolished. He also likened the January 6, 2021, insurrection, which killed police and injured around 114 U.S. Capitol police officers, to a “normal tourist visit.”
The D.C. Police Union supported Congressional efforts to prevent D.C.’s policing bill from becoming law. In a robo-text, it blamed staffing issues and “public safety crisis” on “misguided legislation passed by the D.C. City Council.” It also said, “We need Congress to take the necessary steps to restore the ability for police officers to protect communities.”
Meanwhile, D.C. Mayor Muriel E. Bowser (D) and D.C. Council Chair Phil Mendelson (D) wrote to Congressional leaders, opposing Congressional efforts to block D.C.’s policing bill. They noted that many parts of that bill have been in effect temporarily. They also wrote
We encourage you to see this legislation for what it is: a package of reforms not unlike reforms under consideration elsewhere, including the United States Congress. Regardless of the substance, we are united in opposition to H.J. Res 42 because it offends the basic democratic principles of self-determination and local control.
Grassroots organizations have continued efforts to stop Congressional interference with local D.C. affairs. In March 2023, 17 people were arrested while protesting the U.S. Senate vote’s on D.C.’s crime bill. The Hands Off DC Coalition, a coalition of more than 50 organizations that began before a vote on the D.C. criminal code Congressional resolution, organized visits to Representative Clyde’s office, imploring him to stop intruding with D.C. bills. On one day, 60 statehood advocates and D.C. residents visited that office. One D.C. resident said, “Residents of D.C.’s eight diverse wards did not request and do not seek your oversight, Rep. Clyde, of our lives and laws. ... Interfering with D.C. laws is anti-democratic and makes everyone who lives here less safe. The people of D.C. did not elect you.” She also brought a statehood button to that office. Another participant said,
Your offices are here, but y’all don’t know nothing about what really happens in D.C. Y’all don’t know nothing about the city. Y’all don’t know nothing about our communities, y’all don’t know about our struggles and what we go through. This is another thing that y’all don’t need to have your hands in. So tell Clyde to keep his hands off my city.
Before the U.S. Senate vote of May 16, 2023, U.S. Delegate Norton and the Hands Off DC coalition held a news conference near the U.S. Capito. They demanded that Congress stop intruding in affairs of D.C.
On May 16, 2023, during National Police Week, the U.S. Senate passed H.J. Res. 42. By a vote of 56 Yea (including eight Democrats/Independent caucusing with Democrats and 48 Republicans), 43 Nay (including 43 Democrats/Independent caucusing with Democrats and zero Republicans), zero Present, and one (a Republican) Not Voting.
Republicans used anti D.C. votes of 2023 for political purposes. For example, the National Republican Congressional Committee released attack ads against 15 vulnerable Democratic U.S. Representatives regarding D.C.’s crime bill. In addition, the National Republican Senatorial Committee said U.S. Senator Tim Kaine (D-VA), who supports D.C. statehood, would not “stand up to Democrats’ anti-police agenda.”
On May 25, 2023, the third anniversary of the police murder of George Floyd, U.S. President Joe Biden vetoed this Congressional attempt to prevent D.C.’s policing bill from becoming law. The following is part of his message to the U.S. House of Representatives about this veto:
While I do not support every provision of the Comprehensive Policing and Justice Reform Amendment Act of 2022, this resolution from congressional Republicans would overturn commonsense police reforms such as: banning chokeholds; setting important restrictions on use of force and deadly force; improving access to body-worn camera recordings; and requiring officer training on de-escalation and use of force.
The Congress should respect the District of Columbia’s right to pass measures that improve public safety and public trust. I continue to call on the Congress to pass commonsense police reform legislation.
U.S. Delegate Norton notes that U.S. President Biden’s veto is “the first time in history a president has vetoed a disapproval resolution on local D.C. legislation.” Meanwhile, U.S. Senator Vance voiced displeasure, saying,
With today’s veto, President Biden rejected a bipartisan and commonsense effort to make our nation’s capital safer. The millions of Americans who visit Washington and the brave men and women of the DC Metropolitan Police Department deserve far better. It’s a shame they won’t get it from this administration.
Be wary of what might happen in the near future. This Congress will most likely continue efforts to prevent D.C.-government passed bills from becoming law. If Congress insists on interfering with local District of Columbia issues, take action. Attend rallies, visit and call Congressional offices, and write letters.