By Brian Tashman
The past two years have been challenging times, as we have witnessed attacks on our shared values and civil rights from the Trump White House and a Republican-dominated Congress. It can sometimes feel difficult to make change happen, but even in this hostile climate, ACLU activists helped drive key legislative victories to advance civil liberties during the 115th Congress, which ends on Thursday. As the new Congress is sworn in on Thursday, these victories should remind us that people power works in Washington, too, and should prepare us to take on emerging fights in the new year.
Following pressure from advocates, Congress approved a criminal justice reform package that will help reduce mass incarceration in the U.S., and for the first time in over a decade, it reauthorized a law to improve conditions in the juvenile justice system. Lawmakers also passed critical legislation to reform the broken and secretive process Congress uses when an employee brings a claim of sexual harassment.
Congress also failed to move forward with two troubling proposals: a $5 billion payment towards Trump’s border wall and a measure that would have penalized free speech.
Here are some of the fights where activists made a difference during the 115th Congress:
Stopping new funding for border wall and immigrant detention
As recently as November, it seemed inevitable that Trump’s wall would get funded, and his administration’s brutal detention of immigrants would continue with impunity. Senate Democratic leadership was willing to commit $1.6 billion towards a border wall before negotiations with the president had begun in earnest, while the House Republicans approved $5 billion in its own version of the Homeland Security appropriations bill. Both chambers were poised to re-authorize, if not increase, Immigration and Customs Enforcement’s already exorbitant budget, allowing them to detain around 45,000 immigrants per day.
But ACLU members made clear that our elected representatives should not cave to Trump’s dangerous demands.
As a result, what once seemed like a sure thing is now anything but. Trump has followed through on his threat to shut down the government over his desire to get more money for his border wall, a boondoggle which would likely cause massive damage to the safety of migrants, border communities, and the environment. Incoming House Speaker Nancy Pelosi has said that the House will “will swiftly pass legislation to reopen government” that does not include new wall money, and a majority of House members in the new Congress oppose Trump’s wall.
Many of the new members of the 116th Congress have vocally opposed Trump’s anti-immigrant agenda, and they will now a chance to weigh in, which is an important win in and of itself. So we have a chance to make our voices heard on the issue of the border wall as well as to work to stop Trump from looting other federal agencies for funds to pay for his wall and more detention.
The new Congress should also spend more time investigating and preventing abuses at the border and by Trump’s detention and deportation force rather than giving billions of dollars to expand the administration’s brutal detention policies and sharply curtail ICE’s authority to transfer and reprogram money towards detention.
Defending free speech
The final version of the spending legislation will not contain a measure penalizing free speech and protest. While that may sound incredulous, the last Congress had been considering slipping legislation into the budget that would criminalize politically motivated boycotts of Israel and potentially other countries. While the ACLU does not take a position on Israel-Palestine, we always fight for the freedom of expression of every person, and that includes those who are critical of the Israeli government or pro-Palestinian rights.
The federal government should not be in the business of punishing First Amendment-protected activities simply because government disagrees with them. Federal courts have struck down state laws similarly curtailing speech critical of Israel in Arizona and Kansas following ACLU legal challenges.
Advancing criminal justice reform
A bipartisan coalition in Congress passed the FIRST STEP Act, which helps to address the country’s mass incarceration crisis by reforming federal sentencing laws. While much more is needed to be done to change a system that has inflicted grave harms on communities of color and dramatically increased the country’s incarcerated population, the FIRST STEP Act enacts key reforms on the federal level.
The new law ends the practice of “stacking” gun sentences, retroactively applies a 2010 law reducing disparities between the crack and powder cocaine sentences, reduces mandatory minimums for certain offenses, and grants judges more leeway in sentencing. It also reforms “three strikes” laws and increases the number of credits incarcerated people can earn to shorten the length of their sentences. The president signed the bill into law in December.
The version passed by Congress and signed by Trump is a significant improvement over a previous version of the bill, which only dealt with the conditions in federal prisons. But there is still a lot of work that needs to be done to change America’s criminal justice system, and lawmakers should use the FIRST STEP Act as a starting point to advocate for more comprehensive reforms.
Reauthorizing juvenile justice protections
In a major breakthrough, Congress reauthorized the Juvenile Justice and Delinquency Prevention Act (JJDPA) for the first time in 16 years. The 1974 law addresses the treatment and conditions of the more than 50,000 kids in the juvenile justice system, and this year’s reauthorization contains improvements to help support and safeguard children.
The JJDPA helps protect the safety of young people by limiting their contact with incarcerated adults and the time spent in adult facilities, and it also pushes states to use alternatives to incarceration, such as community and school-based programs and counseling. JJDPA also supports states in planning and implementing measurable goals to address the disproportionate arrest and detention rates among youth of color, who are overrepresented in the juvenile justice system.
Overhauling sexual harassment policies
Following disturbing scandals regarding sexual harassment and other forms of discrimination on Capitol Hill, Congress unanimously approved the Congressional Accountability Act of 1995 Reform Act. Under the old system, workers who brought a claim of harassment or discrimination had the deck stacked against them: While members of Congress had government assistance to fight and settle claims, employees were left on their own to advocate for themselves. And that was just one aspect of how unfair the old system was to workers who faced harassment.
This new law will better protect people who bring a claim of harassment or discrimination by providing access to confidential advisors, expanding protections to interns and fellows, eliminating mandatory mediation, and making sure that members of Congress, rather than taxpayers, are responsible for any financial awards or settlements for harassment, which would no longer be made in secret.
These wins show that even in an era where civil liberties are under attack, activists can still deliver major victories and successfully advocate for much-needed reforms in the United States.
Brian Tashman is a political researcher and strategist for the ACLU