Editors' note: Chris Geidner, the author of the Law Dork blog, is a lawyer with experience in state government and the private sector. Aside from a two-year hiatus during his time in government service, Chris has blogged on legal, political and media issues at Law Dork since 2003, which was recognized as the Best Law Blog in the 2005 Weblog Awards and was a Finalist for the Best LGBT Blog in the 2004 Weblog Awards. You also can follow Chris on Twitter.
For more information, check out Chris's post on the amendments Sen. Sessions added to hate crimes legislation yesterday.
There is a lot of info out there right now about the hate crimes bill, known as the Matthew Shepard Act. I didn't want to just pile on and post the same thing as everyone else, but what I thought could be helpful is an unpacking of, as Doug Berman would say, all the "there" that's there. There are five main issues being discussed with the hate crimes bill:
- The House hate crimes bill and the conference committee.
- The F-22 funding in the Defense Department reauthorization bill.
- The death penalty amendment, as well as the other Sessions amendments, added to the Senate's Matthew Shepard Act amendment.
- The ACLU's speech/association concerns with the Senate language.
- The Thune gun amendment possibility to the DOD reauthorization.
First, let's remove almost all the specifics and talk about process. Assuming that the Senate approves a Defense reauthorization bill, which it eventually will, the House and Senate will appoint conferees to join a conference committee that will hash out differences of the bill.
As such, the House's stand-alone version of hate crimes, voted on in April, will not, technically speaking, be on the table. As a source familiar with the process said, the fact that the House passed the stand-alone bill will be great leverage to include the hate crimes measure in the conference committee's version of the bill. But the House version is not the starting point for hate crimes measure in the conference committee; the Senate version is the only hate crimes measure that officially is included in the conference committee's competing bills. Of course, conferees are free to do a lot to the legislation during the process of reconciling the House and Senate versions of the Defense reauthorization, so a lot can happen.
Now, as to the specifics.
One of the biggest hurdles faced by the hate crimes bill -- the F-22 funding -- was cut on a 58-40 vote from the Senate version of the bill today. As Kerry Eleveld points out, though, we're not yet completely out of the weeds on this point, because there is a Statement of Administration Policy (SAP) that recommends a veto if even the lesser amount -- $369 million of funding for the F-22 program -- included in the House version makes it into the final bill. In today's briefing, Kerry updates the world that any such funding in the final bill will result in a presidential veto. As such, it's all gotta go in conference, or Obama's spokesman says he'll veto it.
Next is the death penalty provision. The LGBT organizations, as I noted last night, appear to believe that there is a good chance the conference committee will remove the death penalty language and other Sessions amendments from the bill. The fact that the committee that heard the bill in the House specifically voted down such a death penalty amendment is sure to help in getting at least that proposal removed. The overwhelming Democratic majority of the conference committee also bodes well for the removal of these "poison pill" amendments.
The ACLU and HRC are having a bit of sparring over the association/speech protections in the Senate version of the bill. The Senate version simply states that the bill does not impact First Amendment protections. As the ACLU pointed out, though, the House version contains a specific provision preventing evidence solely relating to exercise of speech and associational rights. Chris Anders, the ACLU's senior legislative counsel, said in a release:
Unless amended to block evidence of speech and association not specifically related to a crime, the Senate hate crimes amendment could chill constitutionally protected speech and association.... We urge Congress to instead adopt the House version of the hate crimes bill, which protects both civil rights and free speech and association.
David Smith, HRC's vice president of programs, said, "The Senate bill contains an explicit provision stating that the bill does not limit constitutionally protected speech, expressive conduct, or activities" and that each version of the bill protects free speech but in different ways. This distinction, between an evidentiary exclusionary rule, as in the House version, or the restatement of First Amendment protections, as in the Senate version, will likely be dependent on the specifics of which members are chosen for the conference committee. If I had it to choose, I would choose the House version for the simple reason that my general aim is to provide for compromises that increase legislative support whenever they do not diminish the value of the legislation in any significant way.
The final hurdle is the gun amendment being offered by Sen. Thune, which "would allow gun owners to supersede state and local laws restricting their transportation." Democrats in the Senate are fighting the amendment, but it's not quite clear whether they even have the support of Senate Majority Leader Harry Reid. As in the case of the Sessions amendments, it appears that the aim, should it be passed, is for this amendment to be removed in conference committee.
The bottom line is, of course, that legislation is one hell of a sausage-making process. Although the hate crimes bill is not out of the woods, it is likely to make it through. There will be a Defense reauthorization bill, passed by both houses and signed by the President -- even should it, though it seems unlikely, go through a veto. The strong Senate vote to include hate crimes in that bill, when coupled with the House's stand-alone vote in favor, strongly counsel in favor of the hate crimes measure making it through as a part of that bill, regardless of whatever sausage-making difficulties remain.
All that said, be on the lookout for announcement of conferees and action steps, from groups and bloggers all around, to be taken in that regard.