New Disapproval Resolution Introduced in Congress – Target is D.C. Police Reform Law That Includes Major Transparency Improvements

Fritz Mulhauser | March 10, 2023 | Last modified: June 14, 2023

UPDATE 6-14-23 A veto override vote failed Tuesday (13) in the House of Representatives. See Martin Austermuhle reporting for DCist here.

UPDATE 5-26-23 President Joe Biden on Thursday (25) declined to sign the resolution that had passed both houses of Congress disapproving the D.C. police reform bill. The White House message back to Capitol Hill emphasized that Republican leaders of the disapproval measure were wrong on the merits in opposing “commonsense police reforms” and also wrong on process–“the Congress should respect the District of Columbia’s right to pass measures that improve public safety and public trust.” Chances are slim to none that Congress can muster the 2/3 vote required by the Constitution to override the veto. CNN and the Post covered the story. The Open Government Coalition will be monitoring as agencies begin to work on carrying out the law’s many new features, including access to records of investigations of police misconduct now required to be available by request under the D.C. Freedom of Information Act.

UPDATE 5-17-23. The D.C. police reform bill, including several significant improvements in access to police records, became law on April 20 when the congressional review period expired without a resolution of disapproval passed by both houses and signed by the president. The disapproval vote of the Senate (56-43) on Tuesday, May 16, will likely not affect that, as President Joe Biden had earlier promised to veto any such resolution that reached him. The late Senate vote is irrelevant, according to an opinion also issued May 16 by D.C. Attorney General Brian Schwalb at the request of D.C. Council Chairman Phil Mendelson. “Congress established the deadlines for voting on disapproval resolutions, and voting to disapprove of legislation after the deadline is pointless and has no legal effect,” Schwalb said in a statement.

UPDATE 4-22-23. On Wednesday (19) the U.S. House of Representatives voted to disapprove the D.C. police reform bill that includes significant open government features including public access to police disciplinary records. Observers do not expect the effort to gain further traction, according to the Post‘s reporting—especially as President Biden called it “commonsense police reform” and said he would veto any such resolution that reached him. The Post‘s Meagan Flynn reported reactions including

• from D.C. Council Chairman Phil Mendelson (D) who called the measure “no surprise but unfortunate nevertheless,”
• D.C. Attorney General Brian Schwalb (D) who urged members of Congress to stop “using D.C. as a political football,”
• former Speaker Nancy Pelosi (D-Calif.) who said “this is a ‘gotcha’ kind of amendment that is most unfortunate, most unworthy of debate,”
• Rep. James Comer (R-Ky.) who led the opposition to this and the criminal code reform bill earlier, who defended the vote saying “We must ensure pro-crime policies are not allowed in our nation’s capital city, which Congress has a special interest in overseeing,” and
• D.C. Police Union chairman Greggory Pemberton who called the Council bill “so-called ‘reforms’” and said they “are sabotaging the District and endangering all who live, visit, and work here.”

UPDATE 3-20-23. D.C. Mayor Muriel Bowser and Council Chairman Phil Mendelson on Friday (17) wrote to House and Senate leadership opposing the pending resolution of disapproval of the District’s police reform bill. (Introduced in the House, it has not found a Senate sponsor.) According to the Washington Post report published online Saturday (18) by Meagan Flynn and Elie Silverman, the letter argues the law is mostly provisions already enacted in temporary laws in the last two years, so “disapproval at this point in time would be disruptive to our public safety processes.” The letter also noted, they wrote, the provisions are uncontroversial in the national discussion of police accountability since the murder of George Floyd in 2020. “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.” The letter text is here. The mayor and police chief opposed parts of the reform bill but she did not veto it, allowing it to become law without her signature. Her support now “could hold sway,” according to the reporters, considering how often her opposition to the criminal code revision was cited by both Congress and the President in blocking the criminal code revision.

A new resolution introduced in the House of Representatives Thursday afternoon (9) would overturn a suite of several dozen D.C. police reforms enacted in December. Rep. Andrew Clyde (R-Ga.) announced the move on his website.

Clyde, a retired Navy officer and gun-shop owner elected in 2020, has voted not to accept Arizona and Pennsylvania presidential votes in the 2020 election and called the January 6 Capitol riot “no insurrection,” saying it resembled a “normal tourist visit.” He has spoken out against D.C. statehood, for example, warning in the Daily Caller in 2021 that additional Democratic Senators would join a push “to abolish all voter identification requirements, pack the courts and confiscate guns from law abiding citizens.”

The D.C. measure targeted is the Comprehensive Policing and Justice Reform Amendment Act of 2022 that passed in December and became law in January when the mayor returned the legislation without signature. The bill has been waiting out the congressional review period since late January.

The law’s 26 sections address wide-ranging aspects of police work from patrol contacts with the public to the scope of union bargaining. They reflect public demands such as limits on use of force. Many provisions were advanced in the District and elsewhere after the police murder of George Floyd in 2020. Others were drawn from the recommendations of the Police Reform Commission in 2021.  Some had previously passed as emergency and temporary measures but were now made permanent.

The bill does not deal with the kind of laws about crimes and sentences that concerned some members of Congress and led to the recent twin congressional resolutions of disapproval of a separate law revising the D.C. criminal code.

Why did the reform bill draw congressional attention? The D.C. Fraternal Order of Police, the union for over 3,600 officers, may have been seeking such action; they certainly welcomed the new resolution in a simultaneous press statement. In his own statement, D.C. Council Chairman Phil Mendelson bluntly described his theory. “Clearly the DC FOP is behind this override bill,” Mendelson said. “They already took it to court. And lost. They ran cable TV ads against it last year. Now they are going to Congress – and misrepresenting it.” He called this the union’s “last, desperate attempt to avoid accountability.”

In contrast, the union statement stressed that overturning the D.C. law is “necessary to protect public safety.” The group connects changes in police work rules and management to officers’ job satisfaction, claiming a “critical staffing crisis” (“stifled recruitment” and an “unprecedented spike in resignations and early retirements”). Such staffing shortages, the union says, in turn “have prevented our ability to protect our most vulnerable neighborhoods and provide coverage for large-scale events in the District.”

The connection between numbers of police and community safety is one of the most debated themes in recent years of discussion of law enforcement policy.

The temperature rises at the end of the release as the union calls for a second congressional disapproval of “another piece of anti-victim, pro-criminal legislation … that is a direct attack on our officers’ rights.”

Rep. Clyde, who co-introduced the resolution with Rep. Andrew Garbarino (R-N.Y.), said in a statement on his website without supporting details or citations of evidence that D.C. has an “ongoing crime crisis amidst a historic staff shortage,” and that the “misguided law will inevitably jeopardize the MPD’s ongoing efforts to recruit and retain officers.”  

Rep. Garbarino is quoted in the same statement, also with a far broader message, that “Democrats in Washington and New York have vilified law enforcement — gutting morale, enacting policies that prevent officers from effectively doing their jobs and inciting violent anti-police sentiment. Dedicated public servants are resigning in record numbers due to the current policing environment with very few willing to take their place. This Joint Resolution would disapprove [the police reform law] passed by the D.C. Council in defiance of very real safety concerns raised by law enforcement. It’s time to say enough is enough and push back on the anti-police narrative, starting here in our nation’s capital.”  

Reports of police hiring problems nationwide for the last few years, however, suggest nothing unusual here and point to a wide variety of causal factors.

Interviewing Chairman Mendelson on the WAMU Friday “D.C. Politics Hour,” hosts Kojo Nnamdi and Tom Sherwood speculated that no persuasion would stop a Republican majority winning a House vote against the police reform bill. In contrast, they peppered the chairman unsuccessfully with questions about what strategy (with the mayor) he might use to gain support of a majority of Senators to uphold D.C. lawmaking on police accountability.

The Open Government Coalition welcomed two transparency provisions of the law, including making all police discipline investigation records open via normal public records request procedures (the FOIA process) and creating by 2025 a public database of officers with sustained complaints, available online.

Other states have done the same, including California, New York, and Maryland. The D.C. Police Reform Commission recommended the step for D.C. as part of strengthening community trust that officers are required to obey the rules as they fight crime.  

The conservative outlet Daily Caller, founded by Tucker Carlson in 2010, first reported the resolution and noted 15 cosponsors. Initial local reports Thursday (9) afternoon were by Cuneyt Dil at Axios and Colleen Grablick at DCist. Grablick later in the day scored a comment from Council Judiciary & Public Safety Committee chair, Brooke Pinto (D-Ward 2), who said “This most recent attack on D.C. legislation shows Congressional Republicans are not actually serious about public safety. Republicans’ goal isn’t safety, it’s using misinformation to score cheap political points.”

The Post filed 1,500 words just before 8 p.m., contributed by Meaghan Flynn, Peter Hermann, Elie Silverman, and Emily Davies. They reported reactions from D.C. individuals:

• Council chair Phil Mendelson noted that the D.C. law has police accountability measures very much like those in the House-passed 2021 bill called the George Floyd Justice in Policing Act (which was not acted on by the Senate).
• Naïké Savain, a Ward 7 resident and member of the council-appointed Police Reform Commission, who went straight to the question of motive behind the disapproval resolution: “These are not good-faith concerns about our legislative process or even about the substance of these bills.”
• Ron Hampton, retired D.C. police officer also on the commission, who spoke from experience on the need for reform and called the new law “reasonable steps,” noting also the parallel in Rep. Garbarino’s home state where the police complaint office in New York City opened police discipline records as the new D.C. law will do.
• Council member Charles Allen (D-Ward 6) also told the reporters that he had feared the initial resolution of disapproval that passed the House and Senate in recent days to block D.C.’s criminal code overhaul, was “just the first of many Republican efforts to undermine, and ultimately try to end, Home Rule. Senate Democrats and the President naively believed their betrayal of the District would settle the issue, but in reality, they just handed the GOP a winning strategy to both undermine the District’s autonomy and undermine Democrats. Until the District is a state, and until those in power stand up for Home Rule, this is going to keep happening.”