Curious twist in sex trafficking debate gives glimpse of a gentler Congress

Sen. John Cornyn (R) and Sen. Dianne Feinstein (D) engaged in a search for common ground on the Senate floor Wednesday. It was a rare moment when two senators from opposing sides talked to each other, rather than at the cameras.

It’s not every day that two senators at loggerheads on a bill – in this case, the anti-human-trafficking bill – meet unexpectedly on the Senate floor for a sincere discussion of differences, and, in the course of an unusual 20-minute exchange, perhaps reveal the seeds of a solution to their impasse.

When in the public eye, disputing lawmakers usually take their case to media microphones, one side at a time, or they talk past each other in scripted remarks in the House or Senate. Often, they stand as lonely sentinels on the floor of either chamber, arguing their side to the C-Span cameras.

That’s what Sen. Dianne Feinstein (D) of California was doing late Wednesday afternoon, when suddenly, Sen. John Cornyn (R) of Texas, appeared on the floor.

Senator Cornyn, chief sponsor of the Justice for Victims of Sex Trafficking Act, explained that he had been watching Senator Feinstein on the TV in his office, when he thought he’d come to the chamber so that “maybe we could get to the bottom of this.”

Both senators care passionately about helping victims of human trafficking – the fastest growing organized crime business in the world – but the two sides are like “ships passing in the night,” he observed.

“What you’re seeing is two experienced legislators grappling with a complex provision in a bill, and trying to find common ground,” says Ross Baker, a congressional expert at Rutgers University in New Brunswick, N.J.

“Much of the debate that goes on is much more in the nature of messaging. This is a quest for information, this is a quest for the possibility of a solution,” Professor Baker says. Feinstein and Cornyn are “showing each other a courtesy and civility that people don’t associate with political language today.”

For more than a week, the bipartisan bill has been held up by a sudden dispute over abortion language. 

Republicans had inserted into the bill a reference to the so-called Hyde Amendment, a long-standing provision that prohibits federal funds from being spent on abortion except in the case of rape, incest, or the endangered life of the mother. It’s been routinely approved in annual spending bills for years.

In this case, the amendment was to apply to a victims’ fund collected from fines levied on trafficking perpetrators. Democrats balked over the bill they once wholeheartedly supported, claiming Republicans had sneaked in the reference without telling them. They see it as an unacceptable expansion of the Hyde amendment in both duration and scope – the trafficking legislation being neither an annual spending bill nor the fines, in their view, being federal funds.

Republicans say that the reference has been in the bill for weeks; Democrats just didn’t read it thoroughly.

So on the Senate floor, Cornyn started off by posing this question: If his friend from California voted for the bill when it was being considered in the Judiciary Committee, if she voted for the Hyde Amendment in the 2014 spending bill, if she voted for a similar provision in the Affordable Care Act, and if the amendment has been approved by Congress in every spending bill since 1976, “Why is it, that it all of a sudden becomes objectionable” and a reason to “derail” the legislation they both want?

Feinstein, standing next to her easel of charts and talking points, answered slowly and deliberately. It’s “because of what this legislation is,” she said.

It’s “the raping and the misconduct sexually with young girls, girls 14, 15, and 16. What if they’re impregnated? Should they be entitled to be able to go and get an abortion? Does this body really want them to be forced to bear somebody’s child?” she asked, lifting her arms to her chest in a kind of self-identification.

She went on to do what lawmakers don’t often do: Admit she had made a mistake in not knowing that the reference language was in the bill before voting for it in committee.

“I would plead a mea culpa,” she said, but added, if a person makes a mistake, “Isn’t the right thing to try to set that right?”

For his part, Cornyn said he thought the reason the Hyde language was never debated in committee was because “it had become a routine matter since 1976.”

He put forth a solution being discussed with the committee’s ranking Democrat. It calls for making the victims' fund part of the annual spending-bill process, so that the Hyde language is more in sync with past use. On Thursday, Cornyn proposed that compromise on the floor, though the senior Democrat on the judiciary committee rejected it, stating again that the monies are not taxpayer funds.

Back on the House floor on Wednesday, Cornyn explained that stripping the language completely – which Feinstein literally begged him to do, pointing out that it’s not in the House version – would mean ditching a long-standing bipartisan agreement resulting in “a dramatic expansion” of taxpayer financing for abortion.

But Feinstein responded that, even so, he’s opening a “Pandora’s box of big, emotional issues for women.”

Women, she said, should control their own reproductive system. Democrats feel they have to take a stand on an issue in which they’ve been losing ground year after year.

Cornyn explored another possibility. Wouldn’t the rape exemption under Hyde apply to the victims of trafficking, thereby freeing up dollars for any services the victims might need?

Feinstein answered, “Yes, I think that’s correct, and I suppose we could change this to have a rape implication,” shedding a sliver of light on another possible area of compromise. But, she added, “The gauntlet has been thrown down, and it’s not up to me alone to remove it.”

Minutes later, she returned to that point, adding that there is no language in federal law that defines trafficking survivors as victims of rape. Consequently, people would have to prove they were victims of rape – an unwanted ordeal, especially for a very young victim.

The discussion ended with both sides sticking to their principles, with neither Cornyn willing to remove the language nor Feinstein willing to keep it.

But at least they tried talking.

“It’s what the Senate used to be like, where we would actually talk to each other,” Cornyn said to reporters after the colloquy.