By Naftali Bendavid
Legal Times
December 18 and 25, 1995
At first glance, the big news of the Republican Revolution, Crime Division, seems to be this: Not a single major anti-crime law has been enacted this year.
The death penalty has not been streamlined. More money has yet to be set aside for prisons. Sentences have not been toughened. Prevention programs (yes, like midnight basketball) have not been eliminated. The assault gun ban has not been repealed. The exclusionary rule barring illegally obtained evidence from court has not been softened.
Those were all elements of the fiery campaign rhetoric that helped sweep dozens of Republicans to power in 1994. But on taking office, GOP lawmakers found that President Bill Clinton had adroitly claimed the political center on crime, and that it was not so easy to attack, say, gun control initiatives or the president's program to put 100,000 cops on the street.
"The Democrats have very skillfully, and appropriately, moved toward the center on criminal justice," says James Wootton, president of the Safe Streets Alliance, a conservative nonprofit group that works on criminal justice issues. "That makes it more difficult for Republicans to see that they will get any gain from moving aggressively on crime issues."
Internal Schism
In taking power, moreover, Republicans exposed an internal schism, on one side, law-and-order conservatives; on the other, those wary of handing police, especially federal police, too much power. That split has been thrown into high relief by such dramas as the Oklahoma City bombing and revelations about the standoffs at Ruby Ridge, Idaho, and Waco, Texas.
Yet the GOP crime agenda is likely to revive in the coming weeks or months. Republicans are now turning to the age-old tactic of hitching pieces of their agenda to unrelated bills that are either indispensable, such as 1996 spending measures, or popular, such as the counter-terrorism bill crafted in the aftermath of the Oklahoma City bombing.
"I think we'll come out with something," predicts Rep. Bill McCollum (R-Fla.), who chairs the House Judiciary Subcommittee on Crime. "I'm not sure if it will be in the next two weeks or next year. But I think there may be some compromise with the president."
There was little talk of compromise when the year began. Propelled to victory partly by promising to be extra tough on criminals, House Republicans wasted no time passing six anti -crime bills based on their Contract With America. This was a particular slap at President Clinton, who just months earlier had desperately maneuvered to win passage of his own $30 billion crime bill.
The GOP package would have killed President Clinton's $8.9 billion cops program, replacing it with flexible block grants. It would have increased spending on prisons from $8 billion to $10.5 billion, and pressured states to increase prison terms. It would have limited death-row appeals. And it would have narrowed the exclusionary rule, allowing evidence from improper police searches if the police believed they were acting properly.
But this bold onslaught was greeted in the Senate with a long, loud silence. "The House has passed one of most aggressive legislative initiatives of the past 50 years, and the stuff goes over to the Senate and it gets bogged down," complains Robert Moffit, deputy director of domestic policy studies at the conservative Heritage Foundation. "If the question is whether it's frustrating, the answer is yes, it is frustrating."
Sen. Orrin Hatch (R-Utah), along with Majority Leader Robert Dole (R-Kan.), did introduce a crime bill in January, mirroring many of the House's proposals. But they never brought it before their colleagues for a vote.
Senate Republicans say they just didn't have the time, what with balancing the federal budget and all. But Sen. Joseph Biden Jr. (D-Del.), ranking Democrat on the Judiciary Committee, says that the Republicans know the bill is a political loser - especially killing a program to add 100,000 cops.
"I have been hearing since the day that Mr. Gingrich became speaker and the Democrats lost control of the Senate that one of the first items on the agenda was a Republican crime bill," Biden taunted recently on the Senate floor. "Well, bring it on. Where is it? Where is the Republican crime bill?"
The answer is that it is in pieces. And those pieces are embedded in the 1996 spending bill recently approved by Congress for the departments of Commerce, Justice, and State.
That bill now includes provisions to eliminate the police program and numerous prevention initiatives, while increasing prison spending. Republicans also have tossed in measures curtailing prisoner lawsuits, eliminating special drug courts, and shutting down legal centers that defend condemned inmates.
The White House has vowed to veto the bill because it guts the president's cherished cops program, and this will likely lead to drawn-out negotiations. While Democrats are determined to defend the police program, which they see as a political winner, President Clinton shows little sign of putting up a fight against the other GOP initiatives embedded in the bill.
That encourages conservatives. "We put a lot of things through, despite a very full agenda," Hatch says. "The President is going to veto the bill, then we'll just start from scratch. We'll pursue the items individually if we have to. I would have preferred crime legislation on a separate track, but I'll get it done whichever way I can."
Republicans are also pushing ahead with plans to speed up the federal death row appeals process, or habeas corpus. They have hitched their proposal to the counter-terrorism bill drafted shortly after the April 19 Oklahoma City bombing. That bill seemed a sure thing, given the public's emotional reaction to the tragedy.
The Republican habeas plan limits death row inmates to just one federal appeal, to be filed within six months after the state appellate process has run its course. More important, it prohibits a federal judge from granting these appeals at all unless he finds that the state court acted "unreasonably." Because that will rarely happen, civil libertarians say this provision would eviscerate federal judges' ability to free innocent people.
Speed Bump
While the anti-terrorism bill flashed through the Senate, it hit an unexpected speed bump in the House. An odd alliance of liberals and conservatives converged to protest the new powers the bill would hand police. Suddenly, the bill was in danger of going down in flames.
House Judiciary Chairman Henry Hyde (R-Ill.) negotiated intensively with Rep. Bob Barr (R-Ga.), a leader of the House Republican freshmen, in an effort to salvage the provision. On Nov. 30, Hyde and Barr announced a compromise that would delete some of the new wiretapping authority the police were to receive and would also nix a definition of "terrorism" that many considered too broad.
But even those concessions, it now seems, may not be enough. Several conservative lawmakers have written Speaker Newt Gingrich (R-Ga.) urging him to postpone a vote on the measure. And a coalition of groups, ranging from the American Civil Liberties Union to the National Rifle Association, held a press conference Dec. 6 to denounce the legislation.
"There definitely is a philosophical split in the Republican Party," says Timothy Lynch, assistant director of the Center for Constitutional Studies at the libertarian Cato Institute. "A lot of the freshmen and sophomores believe the mandate from the '94 elections was to reduce the size and scope of the federal government, including law enforcement. Whereas some of the old-bull Republicans want to replace liberal crime -fighting strategies with conservative crime-fighting strategies."
So the Republicans' habeas reform plan remains in limbo. But if the House leadership does decide it has enough support to push the proposal through, a vote could come within days.
Perhaps the most dramatic Republican initiative that never materialized is a repeal of the 1994 ban on assault weapons. The NRA poured $3.2 million into the 1994 congressional elections and was quick to take credit for the Republican takeover. It seemed at first that the GOP would be eager to push the NRA's favorite policies.
That has not happened, because the Oklahoma City bombing put gun groups on the defensive, and because gun control is relatively popular. While the House may vote on repealing the assault weapons ban shortly after it votes on the anti-terrorism bill, whenever that may be, the repeal seems unlikely to come up in the Senate.
"I don't think there is any major political support for it," says Moffit of the Heritage Foundation. "It's not something that grabs the anti-crime public."
Even if these unfinished Republican goals are not achieved by year's end, they could be taken up next year. Dole's rival for the Republican presidential nomination, Phil Gramm (R -Texas), may prod the majority leader to push through hard-line initiatives.
Still, given the Republicans' blazing entrance a year ago, and given the conventional wisdom that no politician suffers by being too tough on crime, it is noteworthy that so many initiatives have bogged down.
"It's been a funny year, with strange coalitions," says Lawrence Pratt, executive director of Gun Owners of America, which fights to preserve Second Amendment rights. "A lot of things that might have been slam dunks in this [session of] Congress weren't."
(Legal Times is an affiliate publication of Court TV.)
Copyright 1995, American Lawyer Media.
