Last summer, after police protests over the deaths of George Floyd, Breonna Taylor and others, Senator Tim Scott (R-SC) expressed pessimism about the chances of the Senate passing police reform law.
Scott, the only black Republican in the Senate and one of only three black Republicans in all of Congress, is the Senate's leading Republican on police reform and was responsible for drafting the Judiciary Act, the GOP's Police Reform Act. The bill did not get 60 votes in 2020, the necessary room for maneuver in the Senate, and a majority of Democrats voted against because the issue was not properly addressed. Meanwhile, the Democratic bill, the more expansive George Floyd Justice in Policing Act, was passed by the House of Representatives but not taken up by the then Republican Senate.
In February the House again passed the Democratic Act. Now that the Democrats are in control of the Senate, they could force a vote – but they still need 10 Republican votes to pass the bill, and the legislation, as it stands, received no Republican votes in the House. This time, Scott said, negotiations to merge Democrats' law with his Judicial Bill have been productive, making him "hopeful" that a deal will be reached.
"This time my friends on the left are not looking for the problem," Scott said on CBS "Face The Nation" Sunday. "They are looking for a solution. And the things I offered last year are more popular this year. That gives me reasons to be hopeful."
Scott noted that the provisions that both bills have in common are The Basis for Compromise Legislation – Incentives for federal funding of departments that ban chokeholds, more grants for body cameras, federal criminalization of lynching, and the creation of a database on the use of force in the Justice Department to document and investigate how police officers do Use force.
But, as Vox's Li Zhou explained, the Democratic bill goes much further. Democrats included a federal ban on chokeholds and no-knock warrants, a national database of police misconduct to minimize the rendition of officers with poor records, ban the distribution of some military weapons to local police stations, and give the DOJ authority expand indictment against departments.
Scott said on Face the Nation that some of these differences have already been addressed.
"Through negotiation and discussion, we are now closer to arrest warrants and chokeholds, as well as what is known as Section 1033, which has to do with obtaining government equipment from the military for the local police force," he said. "I think we're making progress there too. We literally managed to bring these two bills very close together."
The question of qualified immunity was a sticking point in the negotiations.
Qualified immunity refers to legal protections for police officers that make it difficult to sue them for misconduct and doomed civil claims against them, as Vox's Ian Millhiser has elaborated.
Last year Scott called the weakening of qualified immunity a "poison pill," but this year he has a new compromise.
Instead of weakening the qualified immunity of individual officials, Scott has proposed allowing civil suits against departments.
Scott wants the Qualified Immunity Compromise to change the policing culture
"How do we change the policing culture?" Scott said on Sunday. “I think we do this by holding the employer responsible for the actions of the worker. We do that with doctors. We do that with lawyers. We do that in almost all of our industries. If we do this in law enforcement, the employer will change the culture. In contrast to an officer changing or not changing, all officers will change as the departments take on more of that burden. "
Scott added that his suggestion went down well with family members of victims of police brutality he met last week.
As Vox's Li Zhou explains, the qualified immunity compromise could have political value.
Last year the Democrats blocked the passage of Scott's bill – a sign of how limited they viewed it – and this year both policies need to be radically changed so that both pieces of legislation receive the bipartisan support they need to move forward.
Scott's qualified immunity proposal could be a start in securing that support, though both Democrats and a number of Republicans would have to get on board to actually be tenable.
Senator Chris Coons (D-DE), a member of the Judiciary Committee, signaled a certain openness to this, noting that it "is worth considering, but it will depend on how exactly it is done".
"That could be a reasonable idea for a compromise," Senator Thom Tillis (R-NC) told Vox, adding that he has yet to study the idea. "It's an interesting approach. It just shows that Tim Scott really wants to make progress on police reform."
If the Democrats decide Scott's compromise legislation is the largest bill they will get, the problem of getting 10 Republican votes remains. Some Republicans, like Senator John Kennedy (R-LA), told Vox's Li Zhou that skilled immunity reform is not a novice.
And of course, more progressive Democrats might oppose compromise legislation because it is inadequate. Rep Cori Bush (D-MO) told CNN she would vote against Scott's proposal for qualified immunity and said it was not a compromise provision.
But leading Democratic negotiators, including MP Karen Bass (D-CA) in the House of Representatives, said they were ready to negotiate as long as the qualified immunity provision maintains its purpose – accountability to officials.
Sen. Cory Booker (D-NJ), who is responsible for Senate Democratic Police Reform, told reporters that he was "really encouraged" by the state of the negotiations and that he felt they had momentum. And President Joe Biden put pressure on lawmakers to hold out in his Wednesday night speech, urging senators to reach a compromise by the day of George Floyd's death, May 25.
On the Republican side, Scott believes enough senators will follow in the party he leads.
"Significant numbers in my party have already told me we will go where you are going on this matter as long as I can explain my position," said Scott on Sunday. "And we will do that."