On a perfectly lovely, mid-60ish fall afternoon, the sun was shining upon Wade Henderson in a tranquil park as he discussed hate.
Henderson, executive director of the Leadership Conference on Civil Rights, was preaching to a small choir of sympathizers about how “The Republican leadership just doesn’t get it” when it comes to prosecuting hate crimes.
“The difference,” he said, “is between those crimes focused on people an assailant knows, or an economic crime, and those where somebody is killed due to the color of their skin or ethnicity.”
Henderson was in Lafayette Park, in front of the White House, taking time off from lobbying for legislation that reveals intriguing fault lines in Congress. He’s part of a mini-drama that exposes tactical oddities in how government works, as well as effective arm-twisting, use of symbols, the spotlighting of human props to press a cause and, finally, mere happenstance.
And, to make it more intriguing, you can’t find many insiders who will wager on how the drama will wind up.
And, remember, this is Congress, where the fix tends to be in on most everything–from the orchestrated hearings to final votes on bills–and not a whole lot is left to chance.
At issue is the national debate over hate crimes, such as the 1998 murders of 21-year-old gay Wyoming student Matthew Shepard and a 49-year-old black Texan, James Byrd, who was beaten and dragged behind a pick-up.
Led by the King Kong of Senate liberals, Edward Kennedy of Massachusetts, a bill was crafted to vastly expand current federal law.
Federal civil rights law says that if you violently interfere with anyone’s exercise of federally protected activities (like voting, traveling in interstate commerce or being on a jury) due to the person’s status, you’ve committed a crime. Debated and passed in the 1960s, status was defined as including race, color, religion or ethnicity.
In 1994, Congress directed the federal sentencing commission to hike penalties for hate crimes, which it defined as crimes where somebody picks a victim due to race, religion, national origin, ethnicity, gender, disability or sexual orientation.
This was a directive, not creation of a new class of crimes. The upshot was that tougher penalties, amounting to about 20 extra months of real prison time, would be meted out for such crimes.
With the strong backing of civil rights and gay and lesbian groups, Kennedy moved to expand those covered by the civil rights law, adding sexual orientation, gender and disability. Lobbying by Henderson has brought together a vigorous coalition and used a tried-and-true gambit, victims or relatives of victims, to help in the public relations.
Sherialyn Byrdsong and Michael Messing of Illinois have been prominent, making appearances, meeting top lawmakers and sending letters to legislators. Byrdsong’s husband, Ricky, the former Northwestern University basketball coach, was killed in a shooting spree by a white supremacist last year. Messing was injured in the same spree.
It would create a new section, 249, of Title 18 of the law to make it a federal crime to willfully cause injury due to a victim’s actual or perceived status, and broadening “status” to include everything in the 1994 sentencing directive, namely gender, disability and sexual orientation.
If passed, it would thus mean that somebody ambling into, say, the House Judiciary Committee, could well be treated far more harshly if he hit Rep. Barney Frank, the Massachusetts Democrat who is openly gay, with a two-by-four than if he hit Chairman Henry Hyde (R-Ill.), assuming the intruder was deemed anti-gay.
Some would find it appropriate given the premise of such legislation, namely that if you attack someone due to their status, it is more egregious because it becomes a “statement crime” with potentially chilling impact on those of similar status.
Byrdsong and Messing wrote to House Speaker Dennis Hastert (R-Ill.), “While we recognize that bigotry cannot be legislated out of existence, a forceful, moral response to hate violence is required of us all.”
The Senate passed Kennedy’s legislation 57-42, with 13 Republicans on board, after he pulled a totally permissible (under Senate, not House, rules) gambit and had the bill attached as an amendment to the Defense Department spending bill.
What does one have to do with another? Nothing. But Kennedy was thus pressuring the GOP majority that obviously loves defense spending.
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His measure also includes unspecified, but potentially unlimited, funds for school curricula to deal with hate crimes prevention programs.
At the same time, Sen. Orrin Hatch (R-Utah), head of his body’s judiciary panel and a foe of the Kennedy measure, threw in another hate crimes provision that barely passed, with 51 votes. It never mentions hate crimes or sexual orientation, gender or disability. It refers just to bias and prejudice crimes, allowing states to devise definitions and giving them money to sensitize law enforcers.
The House has not voted on such a bill per se but did indirectly in a procedural vote won by the supporters of such legislation, 232-192.
For sure, critics doubt the depth of evidence that such laws reduce crime, note that society can be outraged and mete out tough penalties regardless, and posit constitutional qualms.
Even the left-leaning Washington Post has editorialized against such laws, believing that no matter how prejudiced an assailant’s motives, rape, murder and assault are local matters and “the fact that hatred lurks behind a violent incident is not in our view a valid federal interest.”
The matter sits in a so-called House-Senate conference, where a select group from each body is hashing out differences in their respective Defense Department spending bills.
The conference is headed by a Republican, Sen. John Warner of Virginia.
Senate Majority Leader Trent Lott (R-Miss.) is against the expansion, as was Warner. On the House side, two prominent Republican leaders from Texas, Tom DeLay and Dick Armey, hate the whole notion and want to see it killed. Hastert is seen as far less belligerent.
There are obvious ruptures within conservative ranks, even as groups such as the Christian Coalition and Family Research Council adamantly oppose expansion. This is, at least symbolically, critical to them. They don’t want to codify sexual orientation as a legally recognized category.
But those same groups have nowhere near the clout of days gone by, especially with a Republican presidential candidate, Gov. George W. Bush, marginalizing them as he heads to the political center.
Diehard conservative Rep. Bill McCollum (R-Fla.), who is running for the Senate, is supporting expansion in what some skeptical, right-leaning colleagues privately chide as pandering.
As for law enforcement, the FBI is dubious–concerned, for example, that every rape could be arguably called a hate crime and that it will face a burden in investigating a raft of crimes.
But most law-enforcement groups support the Kennedy proposal, partly because they like the idea of being able to call more readily on federal resources.
In a classic case of all politics being local, Warner is seemingly reconsidering his position. A week ago in Roanoke, Va., there was a fatal shooting in a gay bar. The alleged assailant is a self-proclaimed hater of gays.
A major gay rights group, the Human Rights Campaign, is readying a radio ad in Virginia on the shooting as it touts the legislation. John Warner, the planned ad states, “can make all the difference.”
Warner said that any legislator looking at hate crimes legislation “would have to be influenced and take into account the horrors inflicted by this terrible crime.”
Will he budge? It’s far from clear. A former Navy secretary, his priority is getting the spending bill wrapped up. He conceivably could get that done, and somehow strip out the hate crimes amendment, but he can’t alienate all the Democrats when it comes to the defense bill.
As for the odds, Senate Minority Leader Tom Daschle (D-S.D.), a big supporter of Kennedy’s amendment, on Friday cited to me what he called “intransigence” among key Republicans. He put the amendment’s chances at making it at “50-50.”
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James Warren and Michael Tackett of the Tribune’s Washington bureau are hosts of “Unconventional Wisdom” at 7:05 p.m. Sunday on WGN-AM 720.