Earlier this year, House Democrats were close to pushing through a bill that would have cemented the power of police unions across the country. For a pro-labor party, the bill, which gave police officers the federal right to collectively bargain on working conditions, appeared to be a no-brainer. Nearly every Democrat in the House co-signed the legislation, including members of the Squad, a group of progressive superstars that includes Reps. Alexandria Ocasio-Cortez and Rashida Tlaib.
The Democrats have supported public-sector unions for generations — often fighting with Republican state officials who’ve worked to gut the memberships of public employee unions and limit bargaining abilities. The bill would have granted the right to form a union and bargain contracts to firefighters, emergency medical personnel and police, including in states that currently prohibit some in public safety from negotiating collectively for wages and working conditions.
As talk of moving the bill increased in March, Rep. Joaquin Castro of Texas was a rare voice raising alarms. He warned his colleagues on the Education and Labor Committee that the bill would formalize the authority of police unions to determine misconduct standards in their contracts, which are increasingly viewed as a barrier to holding police accountable for wrongdoing. Castro, a Democrat, fought it, asking racial justice groups like Campaign Zero and Color of Change to talk to his Democratic colleagues. He suggested new language limiting how much police could negotiate over accountability provisions with cities.
But labor organizations weren’t pleased with the idea of singling out police affiliates by restricting their ability to bargain over disciplinary standards in the bill. Then the coronavirus pandemic exploded, and negotiations stalled.
Two months later, a video of a white police officer using his knee to pin George Floyd’s neck to the pavement for nine minutes rocketed around the country. Hundreds of thousands took to the streets across the nation in response to Floyd’s killing, calling for a full re-imagining of policing and thrusting police unions into the center of the national argument. Activists, multiple legal experts and even some conservative think tanks, say police unions are one of the biggest impediments to reform, pushing hard to weaken accountability rules, and preventing new ones from being passed.
In the wake of Floyd’s killing, the bill expanding bargaining rights for police unions is all but dead as currently written, and not because of the pandemic. House Democrats rushed to pass a first of its kind police reform bill that would, among other measures, ban choke holds, establish a national database tracking misconduct and end the doctrine of qualified immunity, which shields police officers from civil lawsuits. More quietly, they quickly backed away from the collective-bargaining bill. In the span of three months, the party had changed its calculus, now viewing a labor bill that was endorsed by nearly every House Democrat as recently as March as untouchable in its current form.
Rep. Dan Kildee (D-Mich.), co-author of the measure, said in a statement that he asked House leadership to not move the bill unless the right for police to negotiate on accountability standards is addressed. Rep. Alexandria Ocasio-Cortez of New York, who also signed on to the bill, is “withdrawing her support” from it “as long as it remains in its current form,” said Lauren Hitt, a spokesperson for the New York Democrat. Rep. Matt Cartwright of Pennsylvania, author of a separate broader bill to expand collective bargaining rights of public-sector workers, is also deciding “whether any changes need to be made to [his] bill to hold officers with problematic records accountable” and will consider changes Kildee makes to his legislation, said Cartwright spokesman Matt Slavoski.
All Democrats POLITICO spoke to said they support police’s right to unionize and bargain over wages and working conditions; it’s police’s ability to negotiate misconduct standards through union contracts that some are now questioning or flat out opposing.
“As Democrats, we’re very supportive of expanding rights and protections for workers,” said Castro. “[But] police unions have taken advantage of collective bargaining agreements to create less accountability and transparency around police work.”
Democrats and police unions haven’t been friendly for some time, but up until now, the two groups have avoided a full-blown war. The collapse of the federal bargaining bill shows how fast the cultural and political ground is shifting as Democrats question what little is left of the relationship.
If Democrats gain control of the White House and Senate in 2020, they will have to decide whether they want to include changes to police unions in their larger pursuit of police reform. This fight has created a political squeeze for Democrats, whose historic support for unions is in direct conflict with their new mandate to wring systemic racism out of American policing. The fractures are already apparent: While congressional Democrats increasingly attack police unions for fighting changes, Joe Biden’s campaign says he wants police unions at the table for any reform negotiations. Big Labor, too, is divided: Some of the nation’s biggest unions, which are huge Democratic political donors, don’t agree on whether to embrace or expel police unions.
The decision that Democratic lawmakers make could shape the future of the party. If Democrats gain control at all levels and push forward, a national fight with police unions could further animate blue-collar voters who have grown more Republican in recent years. But if Democrats don’t pass sweeping changes to policing, they could alienate the young, diverse and predominantly female parts of the electorate that are driving their wins more and more.
Still, Democrats, organizers in the Black Lives Matter movement, and even unions see a war on the horizon. What Democrats are willing to do to address police unions in their new reform effort is bigger than one piece of legislation. It could ultimately determine how far the party is willing to go to address the racial reckoning that’s dominated much of 2020 and which parts of their base they are willing to prioritize.
In the strictly political sense, Democrats and police unions have been growing apart for decades. Unlike other labor unions, police unions across the country have increasingly and publicly aligned themselves with Republican candidates. The Fraternal Order of Police has not supported a Democratic presidential candidate since Bill Clinton in 1996; it endorsed Trump in early September. Republican officials, who mostly oppose the right to organize, have become staunch defenders of police unions.
In recent months, that split has become glaringly apparent as activists who oppose police unions gain more clout within the Democratic party. Unlike earlier years, when the Black Lives Matter movement was smaller and focused more on agitating and demonstrations in the streets, leaders in the movement are getting a bigger seat at the legislative table. This summer, organizers prepared policy, proposing their own legislative fixes to policing. Activists plan to apply constant pressure on Washington if Democrats gain more control in 2020, utilizing relationships with new allies in Congress.
Rashad Robinson, president of Color of Change, was in the room when Obama oversaw a conversation between police unions, chiefs, racial justice advocates and others in the wake of Philando Castile’s killing by police in Minnesota in 2016. As it was in 2016, the gulf between the movement and police unions today is massive.
“Police associations are some of the most racist and destructive forces that we have, and if Democrats take their money and Democrats play footsies with them then they cannot be trusted to move on reforms,” said Robinson. “The same way that I can’t trust someone that says they want to move on meaningful gun reform and they take money from the NRA.”
Local and state governments largely determine the rights of police to negotiate contracts on their working conditions and to unionize. Some states also have police bill of rights laws, which effectively serve as a second line of protections for officers in addition to what’s negotiated in their contracts.
But national lawmakers could limit police protections and police unions’ power in at least two areas: qualified immunity, a federal protection, and the ability for police to negotiate accountability protections in their union contracts, which lawmakers can tie to federal funding.
Qualified immunity, a doctrine established by the Supreme Court in the 1960s, makes it extremely difficult to successfully sue government employees — from firefighters to teachers and police — for money damages if they violate the Constitution and harm people in the course of their work. As a result, police often are protected from lawsuits by victims or their families for alleged civil rights violations, including death and injuries. If Congress revoked qualified immunity for police, it would allow the public to sue officers for killing or injuring a person if it’s found that they violated civil rights law without having to base it on clearly established law that’s beyond dispute.
House Democrats voted to end qualified immunity in the police reform bill they passed earlier this year. The bill was dead on arrival in the Republican-controlled Senate, but the House approval shows a willingness among Democrats to change decades-long federal protections that police have become accustomed to receiving.
And legal experts say congressional Democrats could go further by predicating federal funds to local police departments on changes to police-union contracts. The accountability provisions at issue among Democrats, legal scholars and activists for instance, allow officers to refuse to speak to an investigator of misconduct for 48 hours after an incident. Others allow for the destruction of disciplinary records and prohibit investigators from considering prior incidents of misconduct in a pending case. Democrats could tell states and police departments, for example, that they will receive federal money only if police unions stop negotiating disciplinary standards in their contracts, though doing so would likely result in legal challenges.
If qualified immunity or the ability to negotiate accountability protections for officers were taken away, there would be consequences, says Jim Pasco, executive director of the Fraternal Order of Police. Under the judicial doctrine, qualified immunity also extends to corrections officers, university deans, and other state and local officials. “If it looked to me like it was inevitable that we were going to lose a vote on qualified immunity, we’d throw everybody in it,” Pasco said.
What would that look like literally? The FOP would negotiate with allies on Capitol Hill as legislation is crafted, as they did during the recent reform debate. Leaders like Pasco could lobby hard privately and publicly, taking the position that if police don’t get qualified immunity, no other state or local government official — whether public school teachers or mayors — would.
Abolishing qualified immunity for police, Pasco argued, would cause “consequences unforeseen.” As many other police advocates have argued, he said no one would want the job “if they were liable for everything they ever did.”
The Republican-controlled Senate opposes ending qualified immunity. But if Democrats win the White House in November — they’re currently favored in election forecasts — undoing the doctrine would be on the table. Control of the Senate is also within Democrats’ grasp.
Notably, ending the doctrine would not leave police officers fully exposed to financial liability if sued, according to legal experts. With qualified immunity gone, police officers could still be indemnified by cities, and they almost always are. Under indemnification, legal fees are covered by the city and the damages owed if police are found liable. Officers wouldn’t have to pay out of pocket unless cities stopped indemnifying them, said Catherine Fisk, a law professor at University of California Berkeley, who supports ending qualified immunity.
Qualified immunity is an added protective layer that officers enjoy, and getting rid of it would make it easier for families to successfully sue officers for civil rights violations — an opportunity that is effectively impossible under current standards. To bring a civil lawsuit against an officer who is protected by qualified immunity, a victim has to prove that an officer violated clearly established law that every “reasonable” officer would know and it is established beyond dispute.
“That’s a really high bar for a victim to get over,” said Fisk. “Civil rights law matters because it takes away the incentive that police departments and cities would otherwise have to make sure that officers don’t commit violence because they’re not paying for the violence, even if it happens.”
And if Democrats push forward a revised version of the collective-bargaining bill that withholds the federal right to bargain from police unions on the one area of disciplinary standards, Pasco said, there will be a war. “The easy thing for us to do at that point, would be to kill the whole bill, and that won’t make the firefighters very happy, will it?” said Pasco. “We want the same fundamental rights that every other worker in the United States has. And we don’t want our accountability judged by some mayor with a political motive in mind.”
Democrats acknowledge the tricky politics of the issue. There is “tension here for those of us who are pro-labor,” said Sen. Brian Schatz (D-Hawaii). Schatz acknowledged the hesitancy among Democratic lawmakers as they weigh what actions they are willing to take at the federal level to curtail police union power. “We have to remember that we’re the party of labor,” said Schatz. If there’s a union Democrats need to “recalibrate” their relationship with, that’s one thing, he continued, “but it’s another thing to say that only one category of employees in the whole country can’t be unionized. because that to me has an echo of Reagan breaking the air traffic control strike.”
It’s a fine line that Biden is also attempting to straddle. As the party’s presidential nominee, Biden’s campaign says he is listening to the demands of Black Lives Matter activists, and his team has had conversations with members of the movement. But Biden is also drawing a distinct policy line, separating himself from some of Black Lives Matter’s central policy proposals, particularly when it comes to police unions.
Where House Democrats’ police reform bill ends qualified immunity for police, Biden’s proposal stops short of outright killing the rule. Instead, his campaign vows to “rein in” the doctrine, though it has provided little indication of what that would look like other than saying a “range of activities” should not be protected under the rule.
Campaign adviser Symone Sanders acknowledged the contrast in an interview with POLITICO in August, saying, “it’s true that the House bill does not exactly mirror our policy and the vice president’s perspective.”
Biden’s campaign also consulted with police unions on the police reform proposals he outlined in the weeks after Floyd’s killing, according to a Biden aide. And if elected, Biden intends to give police unions a seat at the table, along with advocates and activists, when crafting police reform in his administration, the aide said.
But a Biden presidency that seeks to pass major police reform legislation will be scrutinized by progressive activists and the Black Lives Matter movement, which has grown considerably in size since the Obama era. Tension between the movement and a Democratic White House could erupt if a Biden administration attempted to compromise with police unions when crafting legislation to address police brutality.
Already, progressive groups are drawing a line between candidates who align with police unions and those who don’t. The Working Families Party, a progressive third party that supports Democratic candidates, launched a Justice Fund in July that will back only elected officials or candidates who forgo taking money from police unions. “They benefit from having the word police and union in their name,” said Maurice Mitchell, national director of WFP and a leader with the Movement for Black Lives coalition. “We plan to expose them for who they are and to create a real political cost for local elected officials.”
“We are looking towards a near future where it is noncontroversial for progressives to proudly say that they don’t take police money,” said Mitchell.
Campaign Zero, a police reform advocacy group, launched a campaign in August pinpointing six areas of police union contracts they say should be changed, in addition to states undoing law enforcement bill of rights legislation that are implemented in at least 20 states. Most of the immediate changes they’re focused on are at the local level, but Campaign Zero has also been involved in reform discussions with national lawmakers.
“Nationally, the party sets the direction for what local and state Democrats are doing,” said Samuel Sinyangwe, co-founder of Campaign Zero and an activist. “The Democratic Party as a whole from the top down needs to be very clear about its position with regard to police unions, with regard to police officers’ bill of rights laws and police union contracts, and the ability of police unions to bargain over disciplinary issues.”
Some of them are responding to those calls. A number of Democrats have joined calls from local union chapters and Black Lives Matter organizers to push out police unions from larger labor organizations like Service Employees International Union (SEIU), the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the American Federation of State, County and Municipal Employees (AFSCME). The labor organizations themselves are split on the idea: SEIU, whose membership is half female and more than 40 percent people of color, has said it’s considering expelling police from its union. But the AFL-CIO, which like SEIU endorsed Biden, rejected the idea, vowing to work with its police affiliate to address reform.
“The precise issue of the role of police unions within the broader labor movement has not yet been addressed,”said Julián Castro, a former presidential candidate who made police brutality a central theme of his campaign. “My hope is that AFL-CIO and AFSCME, the big unions, will be open-minded in terms of what a 21st-century approach looks like.”
His brother, Joaquin, who opposed efforts to expand collective bargaining rights for police on the issue of accountability, agreed. “The AFL-CIO and others have some real soul-searching to do,” said Castro. “They know that police unions’ ability to bargain on accountability issues has protected the worst officers and maintained a system of policing that’s oppressive for many African American, Latinos and others.”
Some Democrats want police unions to acknowledge their role in perpetuating systemic racism and help to change policing. Rep. Bobby Rush (D-Ill.), said police should admit to their past involvement in breaking up strikers and at times harming those involved in labor fights throughout the country’s history. Rush added that he supports collective bargaining for “every worker in America” but encouraged labor to “exile” police unions. “Police unions are a black eye for the trade union movement,” he said.
“The Democratic Party is a party of walking contradictions as it relates to police,” said Rush. “The police unions themselves have to be re-imagined, they have to be reinvented.”
But some of the party’s most progressive members are careful to not embrace the movement’s harshest criticisms of police unions while aligning with it on others.
Rep. Rashida Tlaib of Michigan, one of the liberal members of the Squad, didn’t go as far as Rush or the Castro brothers, saying the question of expelling police from labor federations like AFL-CIO is up to its members. “I’m for people organizing in the workplace, and that includes police unions,” she said, adding there should be an “internal, organic” moment of reflection within labor organizations.
Still, Tlaib supports ending qualified immunity and some of the movement’s boldest proposals. Tlaib’s also clashed herself with corrections officers in a recent meeting with a national labor organization about reform in the wake of Floyd’s killing.
In a sign of the movement’s growing influence, Tlaib, along with Reps. Ocasio Cortez and Castro, organized a meeting for leaders of the Movement for Black Lives — a coalition of more than 150 Black-led organizations — to brief the Congressional Hispanic Caucus and the Congressional Progressive Caucus on their Breathe Act proposal over the summer.
The policy put forward by leaders in the Black Lives Matter movement calls for redirecting federal funds from police, prisons and agencies that invest in law enforcement to other essential services. For now, movement leaders have said they have no plans to turn up the heat on Biden ahead of the election, devoting most of their focus to ousting Trump. But if Biden’s elected, they expect to be part of the legislative debate with their allies in Congress and press a Democratic administration.
Tlaib predicted that those who stand in the way of overhauling policing, or block ending qualified immunity, will ultimately fail. “I don’t care if it’s Biden. I don’t care if it’s the police unions, I don’t care if it’s other institutionalized processes,” said Tlaib. “It doesn’t matter because it’s what people on the streets and the communities and the neighborhoods believe in.”