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Hate Crimes Legislation, Now Riding on the DoD Bill

July 17, 2009 - by Isabelle Cutting

With a 63-28 vote last night, the Senate approved the Matthew Shepard Hate Crimes Prevention Act as an amendment to the National Defense Authorization Bill.

Poison pills and riders be they germane or not, are fascinating techniques, with which I have become more acquainted during my time here at OpenCongress. Refreshingly, the debate surrounding such measures as well as their practice, is one, which does not lie along partisan lines; support and opposition can be heard from both sides alike. Such was in the case of the 2005 emergency defense appropriations bill I wrote about last week and such is the case with the Mathew Shepard Hate Crimes Prevention Act (HCPA) amendment to S.1390, which went under Senate consideration this week. Following up on Donny’s previous post and in light of the rider’s recent vote, here is some background regarding the hate crime legislation.

Earlier this week Senate majority leader Harry Reid [D, NV] proposed attaching the Matthew Shepard Hate Crimes Prevention Act as amendment #1511 to the $679.8 billion National Defense Authorization bill. The amendment seeks to expand upon the 1969 U.S. federal hate crime law by extending its scope towards bodily crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability. Current provisions are limited to bodily crimes motivated by a victim’s actual or perceived race, color, religion, and national origin. It would also to provide funding and investigative capabilities to federal officials when aiding their local counterparts.

Reid expressed the wish that the name commemorated in the legislation’s title would soon be associated with justice rather than hate crimes. Indeed related bills carrying Matthew Shepard’s name have been introduced every congressional session since 1998 and have subsequently died in committee. Matthew Shepard, featured in the picture above, became the icon of such hate crime legislation, after dying from bias motivated violence in 1998.

Although initially introduced by Sen. Charles Schumer in 1997, during his last term as a Representative, and most recently presented as an amendment to the DoD bill by Sen. Patrick Leahy [D, VT], the HCPA legislation has consistently been sponsored by Rep. John Conyers [D, MI-14] and Sen. Ted Kennedy [D, MA]. The most recent of these stand-alone bills are H.R.1913, which passed by 249-175, and S.909, which has come to a stand still.

Notable developments in the legislation’s evolution through the past 6 Congressional sessions include the 2007 addition of “gender identity” to the list of protections from hate or biased motivated crimes and its role as part of the 2007 legislative-executive tug of war.

Similar to Obama’s recent threat to veto S.1390 if it included the F-22 fighter jet funding, Bush indicated that he would veto the 2007 DoD authorization bill if it carried a HCPA amendment. Although the Senate approved the rider by a voice vote, the legislation was never reconciled with the House version and was subsequently dropped.

That year, Kennedy suggested the HCPA amendment after the stand-alone legislation passed the House and then stalled in the Senate. In reference to the legislation at large, Kennedy stated that:

Crimes motivated by hate because of the victim’s race, religion, ethnic background, sexual orientation, disability, or gender are not confined to the geographical boundaries of our great nation. The current conflicts in the Middle East and Northern Ireland, the ethnic cleansing campaigns in Bosnia and Rwanda, or the Holocaust itself demonstrate that violence motivated by hate is a world-wide danger, and we have a special responsibility to combat it here at home.
In relation to the legislation in the form of the H.R.1585 rider, Kennedy said:

Sadly, our military bases are not immune from the violence that comes from hatred.
This amendment will strengthen the Defense Authorization Act by protecting those who volunteer to serve in the military. (AP)

And finally, in reaction to the removal of the amendment from the 2007 DoD authorization bill, Kennedy cited the decision as “an extraordinary missed opportunity”.

Discussion surrounding the HCPA, in its various forms, however, has been far from one-sided. As previously mentioned by Donny, opposition finds its greatest numbers among religious groups concerned about their freedom of speech and those who believe that the legislation is superfluous.

Along this former vein, Senators have also voiced concern for freedom of speech and moving towards “thought crime” legislation. Concurrently, Orwell was widely cited on the House floor this year, as Representatives Steve King [R, IA-5] and Todd Tiahrt [R, KS-4] related the HCPA legislation to 1984 and Animal Farm respectively.

In response, Speaker of the House, Nancy Pelosi [D, CA-8] argues that the legislation seeks to specifically target violent crimes rather than the freedoms of thought, speech, or expression. Indeed the text of the bill refers to crimes, which cause bodily harm to the victim rather than those which result in emotional or psychological harm.

Following the latter argument that the HCPA is unnecessary, indeed 45 states and the District of Columbia have statues criminalizing bias or hate-motivated violence. All of these state laws cover crimes motivated by race, religion, and ethnicity, 32 include sexual orientation, another set of 32 address disability, 28 cover gender, and 11 cover gender identity. (The five states without such legislation are AR, GA, IN, SC, and WY.) Proponents of the HCPA, however, charge that these state laws are not sufficient given the continued prevalence of crimes motivated by hate and bias.

The most recent strand of opposition comes from those who argue that the legislation is irrelevant to the DoD authorization bill. Sen. John McCain [R, AZ], for example, argued that this amendment was unrelated and acted as a distraction from the F-22 stealth aircraft debate. Whether this first accusation holds or not, it would certainly not be the first time that Congress attached seemingly unrelated amendments to pieces of legislation, including “must-pass” bills. In regards to the second accusation, however, and as reported by AP, it would indeed seem that the hate crimes amendment put the F-22 stealth aircraft discussion and vote on hold.

Furthermore, McCain intensified his opposition to the HCPA amendment by citing it as unfair and an “abuse of power”.

While we have young Americans fighting and dying in two wars, were going to take up the hate crimes bill because the majority leader thinks that’s more important, more important than legislation concerning the defense of this nation." (NPR)
In response, Reid questioned:
I recognize he has strong feelings, well . . . so do I. . . . I wonder which recent morning did the senator wake up and feel so strongly… Where has he been in the past?" (Halimah Abdullah)

Although finding strong party support in both chambers and the White House, the HCPA amendment needed bipartisan backing to achieve the necessary 60 votes. This came from Senators Susan Collins [R, ME], Olympia Snowe [R, ME], Lisa Murkowski [R, AK], Richard Lugar [R, IN], and George Voinovich [R, OH]. You can check out the break down of votes for S.1390 and its amendment #1151 here.

On a more sentimental note, the Senate’s vote to attach the Matthew Shepard Hate Crimes Prevention Act to the DoD bill duly commemorates Sen. Kennedy’s persistence towards the legislation and the issues behind it over the past dozen years up to his recent medical absence from the Senate.

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