black lives matter

Police Reform Is Probably Dead Under Biden

Photo: Roberto Schmidt/AFP via Getty Images

Between late May and early July, an estimated 26 million people in 550 U.S. municipalities protested in the streets to end racist police violence after a Minneapolis cop killed George Floyd, an unarmed Black man. Congress promptly failed to deliver a bill that met their demands, mired in disagreement between House Democrats and Senate Republicans. Now, Joe Biden is the president-elect and the Senate is still under Republican control with majority leader Mitch McConnell at the helm. Unless Democratic senate candidates in Georgia win both January runoff elections, the next two years are shaping up to be a partisan power struggle. Federal policing reform will probably be a casualty.

The groundswell of public support over the summer for various proposals to retool law enforcement — an end to “qualified immunity” legal protection, a national use of force standard, banning chokeholds, and more — always seemed attributable to a confluence of flukey circumstances. Nationwide disaffection with policing has grown over the past five years across racial and partisan divides, but not at a pace that predicted mass protests and riots by 2020, especially not with such high levels of participation among white people. But other things changed too. Donald Trump was elected, which prompted a frenzied reckoning among college-educated whites in particular with how racism shapes American society. Indignance toward the president fueled widespread activism starting when he was inaugurated, from the women’s marches to the airport protests over his Muslim travel ban. Then there was the onset of the coronavirus pandemic, which forced many Americans into quarantine, out of work, and toward some kind of release. The protests gave many of them permission to be in public again. Yet this unique mix of factors looked especially fleeting as time passed, as congressional negotiations stalled, the protests shrank in size and number, public sentiment soured on the Black Lives Matter movement, and Republicans reverted to using the demonstrations as a wedge issue, casting unrest as a product of Democratic misrule and a violent threat to white suburban homeowners.

The incentive for Republicans to pass a police-reform bill has only diminished since. In June, when House Democrats and the Senate GOP each submitted legislation to be considered, momentum was bipartisan. Almost half of self-identified Republicans expressed the belief that the criminal-justice system needed “major changes” or a “complete overhaul,” according to an Associated Press–NORC poll. Passing legislation to this effect also stood to benefit Trump, who was in the middle of making a reelection pitch to Black voters centered on his signing of the First Step Act, a bipartisan criminal-justice reform bill. He even acknowledged that police abuse their authority at times — a position he would later undermine once demagoguing the protests seemed like it would help him more politically. But for the time being, things looked promising.

But conflict materialized when each party refused the other’s bill. Democrats dismissed the GOP legislation as insufficiently expansive, and they were right: It did nothing about qualified immunity, declined to ban chokeholds, didn’t make it easier to prosecute police for misconduct, and offered anti-bias training instead of a commitment to end racial bias outright. The Democrats’ alternative was hardly radical, but it went further in all these areas plus banned no-knock warrants, which played a central role in the police killing of Breonna Taylor in Kentucky. Senate Republicans balked. This disagreement grew starker as Trump changed course and embraced the “law and order” messaging that underpinned his 2016 campaign, locking up endorsements from several prominent police unions and sending his own federal agents to beat up on protesters.

Now that the president is leaving office, McConnell is well positioned to refill the role he perfected under Obama: an obstructionist who makes passage of any Democrat-supported legislation a waking nightmare. There’s some reason to believe this isn’t inevitable. Biden and McConnell have worked closely together on several occasions, both in the Senate during the late 1980s through 2000s and under the Obama administration to resolve fiscal matters, like the debt ceiling, where gulfs existed between Congress and the White House. Each has spoken in complimentary terms about the other, and even claimed to like one another as people, for whatever that’s worth. Recapturing this dynamic would be essential to getting legislation passed within a divided government these next four years. But it’s unclear why McConnell would feel the need to do that. He has already signaled his intention to make sure Biden’s cabinet is very friendly to Republicans. Exploiting hyperpartisanship may not have delivered Trump reelection, but it came remarkably close to doing so given his perceived weaknesses. And its polarization of the electorate in most states has arguably been a net positive for GOP prospects of controlling the Senate, which has allowed the party to shape the federal judiciary without Democratic consent. Another presidential election looms in 2024. Senate Republicans are well positioned to play up fears that Biden is a figurehead for a radical leftist agenda and hope it keeps them in the driver’s seat through the 2022 midterms. Denying the administration a signature legislative accomplishment — like a major overhaul of policing — is a good bet to weaken Biden as an incumbent against a Republican challenger. It’s hard to imagine that not being a GOP priority.

Then there’s the matter of the Biden-Harris ticket itself — hardly a vessel for the summer protesters’ most far-reaching demands, like defunding the police. Both candidates weathered criticism of their criminal-justice records during the Democratic primary, which some observers theorized would harm them with Black voters. Harris was forced to drop out, though there’s no evidence that her time as a prosecutor in California explained her polling deficit. But Biden cruised to victory on a wave of strong Black support in South Carolina, continuing into Super Tuesday and beyond. His history as a busing opponent and author of the 1994 Violent Crime Control and Law Enforcement Act, which ushered in several punitive policies that harmed Black people disproportionately, was not penalized measurably by Democratic voters, least of all Black ones. He interpreted this as validation of his pitch: As representative of the party’s conservative wing, he was best positioned to win back wavering Trump voters from 2016. The balancing act that this required meant making some ambitious reform proposals — investing in public defenders’ offices, eliminating mandatory minimum sentences — and others that failed to account for the tension between wanting more police but less police violence, like $300 million in federal funds to hire more cops locally and train them in “community policing” methods. He remains a holdout on marijuana legalization, proposing instead to decriminalize it federally and leave the rest to the states. He found himself on the defensive during the presidential campaign whenever Trump accused him of refusing to condemn rioting, which was a lie. Biden regularly qualified his condolences to Black people killed by police by telling frustrated residents not to destroy property.

All of this bodes poorly for the kind of substantive federal policing reform that looked possible at different points during the summer. Dispositionally, Biden was only going to push reform so far anyway. But with McConnell possibly holding the key to his legislative goals and a 6-3 conservative Supreme Court majority hovering above every potential executive order, his ambitions are on track to be stunted even further. The outlook is bleak. An ignominious resolution to the George Floyd protests lurks on the horizon, and if Republicans hold onto the Senate in January, as they are favored to, concerned Americans will be hard-pressed finding ways to avoid it.

Police Reform Is Probably Dead Under Biden