The last week of 2018 and the first three of 2019 have demonstrated little to no movement in transforming Congress into a governing institution. The House of Representatives, as of Jan. 3, is controlled by Democrats, while the Senate is led by Republicans. As of this writing, several major departments of the federal government, including the departments of Justice, Homeland Security, and Agriculture, are closed, leaving 800,000 federal workers without pay. Some are furloughed and are staying home or looking for second jobs, while others are regarded as essential personnel and must work without pay.
The latter include the servicemen and -women at the U.S. Coast Guard Station in Menemsha.
The dispute is over $5.9 billion for the construction of additional barriers on the U.S. southern border. The president on Dec. 11 last year told Sen. Chuck Schumer (D-N.Y.) and Rep. Nancy Pelosi (D-Calif.), “I am proud to shut down the government for border security, Chuck … I will take the mantle. I will be the one to shut it down. I’m not going to blame you for it.” A week later, he was blaming the Democrats, forgetting his pledge to “take the mantle” for closing critical services and leaving federal workers unpaid.
I am hopeful that by the time you read this piece, Congress and the President will have resolved the issue and government is reopened. But I am not optimistic.
The question is whether there can ever be bipartisanship in divided government. Can the Democratic-controlled House work cooperatively with a Republican Senate majority with a Republican in the White House?
First, the answer, as naive as it may now look, is yes. Let’s not forget a piece of bipartisan legislation that passed last year that rallied both political parties, and how it persuaded President Trump to sign it into law: The First Step Act, which passed the Senate by a vote of 87 to 12 and the House by 356 to 36. Let’s remind ourselves that Republicans controlled the House at the time, and 91 percent of the members voted for the law.
After intervention by, among others, Ivanka Trump, Jared Kushner, and Kim Kardashian, the president agreed to enact the law and he signed it on Dec. 21.
The act is the most important piece of criminal justice reform in perhaps a generation. It is an omnibus bill designed to reduce the mass incarceration of prisoners in the U.S., the highest per capita in the world. No. 2, by the way, is Russia, hardly a model of democracy and justice. In the U.S., the incarceration rate is currently at 724 people per 100,000, whereas in Russia it is 581 people per 100,000. As a comparison, Britain’s is 145 per 100,000. A huge difference. According to the BBC, half of all those imprisoned are held in the U.S., Russia, and China.
The bill ends mandatory minimum sentencing, gives more discretion to judges, increases educational possibilities and job training for released prisoners, and other progressive ideas in prison and criminal justice reform. It also eliminates the false (and what some regard as racist) distinction between crack (used more by black citizens than white) and powder cocaine (used more by whites than blacks).
It is based on the actions already undertaken by 38 states, including Massachusetts, which enacted a slew of criminal justice reform legislation last year. Still, as the Boston Globe has pointed out, the commonwealth currently incarcerates more prisoners per capita than Brazil, Mexico, and Iran (yes, Iran).
Meantime, as Senate co-sponsor, Sen. Chuck Grassley (R-Iowa) noted that “the First Step Act takes lessons from history and from states — our laboratories of democracy — to reduce crime, save taxpayer dollars, and strengthen faith and fairness in our criminal justice system.”
Sen. Grassley was echoing a statement made by Justice Louis D. Brandeis in 1932 when he wrote that “it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.”
The First Step Act is, however, just that: a first step. Much more can and must be done to reform the criminal justice system. But the key is that the bill shows that congressional Democrats and Republicans can and must work together.
So, what about the current impasse? The House and Senate can negotiate along the lines of the First Step Act, and send a bill to the president that reopens the shut-down agencies and increases border security. Some of the latter will probably include some sort of barrier, but only where it is effective, and only the experts know where that is and how to construct it. The president will then have a choice: Sign it or veto it. If the latter, Congress can override a veto with a two-thirds vote in both houses. Note again the vote on the First Step Act: 91 percent of the House and 88 percent of the Senate.
It’s time to end the bickering and get to the challenging work of governing. The First Step Act shows us that this can happen when thoughtful people work together.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.