The Washington PostDemocracy Dies in Darkness

Opinion What the criminal-justice reform bill tells us about Congress

That the Senate accomplished anything was surprising enough; that it passed strong bipartisan legislation aiming to reduce prison sentences that disproportionately fall on nonwhite criminal defendants is somewhat stunning.

The Post reports:

The First Step Act passed on a vote of 87 to 12, with dozens of Republicans, including longtime holdout Majority Leader Mitch McConnell (R-Ky.), joining all 49 members of the Democratic caucus to approve legislation that even some GOP supporters fear could leave them vulnerable to charges of being soft on crime.
Senate Judiciary Committee Chairman Sen. Charles E. Grassley (R-Iowa) tried to allay those concerns shortly before the final vote, stressing that [President] Trump “wants to be tough on crime, but fair on crime” — and had told him personally that he had his “pen ready to sign this bill.”

It is not every day that the Koch-backed Americans for Prosperity (“We applaud every senator who came together to put policy ahead of politics") celebrates jointly with the president’s frequent nemesis, the American Civil Liberties Union (“We applaud the bipartisan group of senators who were willing to listen to advocates and include important sentencing reforms that will grant thousands of currently incarcerated people a second chance").

The bill would reduce “the ‘three strikes’ penalty for drug felonies from life behind bars to 25 years and retroactively limiting the disparity in sentencing guidelines between crack and powder cocaine offenses. The latter would affect about 2,000 current federal inmates.” In addition, the bill gives judges more flexibility in deviating from mandatory-minimum sentences and reforms the federal prison system, looking to expand early release programs, with the aim of reducing recidivism.

This got me thinking: Why didn’t this happen a long time ago? When 87 senators agree on something, you’d expect leaders to grab an easy win as soon as possible. The answer is that it was a battle to get McConnell to allow a vote. Whether he had actual qualms about the bill, or was getting yanked around by right-wingers, or was afraid that a released prisoner would commit a horrible crime and Republicans would get blamed for it, McConnell did his best to put this off. When the vote eventually occurred, we saw that the status quo, anti-reformers (including Sen. Marco Rubio, who seems determined since the 2013 Gang of Eight never to do anything hard again) had very few members on their side.

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Imagine if both the Senate and House Republican leadership over the past couple of years put on the floor legislation that a bipartisan majority, a strong bipartisan majority at that, supported. We’d have had immigration reform back in 2013, and if not, a solution for “dreamers” in early 2018. We’d have a bipartisan health-care fix, not the mess created by administration sabotage and a rogue court decision throwing out the entire Affordable Care Act. We’d probably have had an infrastructure bill as well and small steps on gun safety. (In a banner day for sanity, the Trump administration announced on Tuesday that it would outlaw bump stocks.) A bill protecting special counsel Robert S. Mueller III almost certainly would have passed after a 14-7 vote in the Senate Judiciary Committee — except for McConnell’s refusal to bring it to the floor.

Ironically, the biggest impediment to bipartisanship in Congress isn’t polarization per se; it’s leadership that allows polarization to control the first branch of government. McConnell and House Speaker Paul Ryan (R-Wis.) have catered to the lowest common denominator, the extreme ideological fringe of their party. In doing so, they have elevated partisanship — and extremism — over consensus and national purpose. Sometimes they have done so at the bidding of the White House (as on immigration), elevating their loyalty to party and president over their constitutional role as leaders of a coequal branch of government.

It’s not clear why members put up with this. It’s they who are deprived of voting on legislation that they favor. It’s they who get beaten by challengers rightly claiming that they haven’t done much to justify reelection.

To her credit, incoming House Speaker Nancy Pelosi (D-Calif.) allowed rule changes to make it easier to bring widely popular legislation to the floor:

First, if a bill has 290 co-sponsors of any party, it can’t be shelved and has an easier path to getting a full vote on the House floor. Second, if an amendment has the support of at least 20 Democrats and 20 Republicans, it gets a priority vote. And third, if you sit on a committee, you are guaranteed a vote on at least one of the bills you co-sponsored, so long as it includes a sponsor from the other party.
These rules are designed to break the gridlock that currently paralyzes Washington.

The Senate, however, will remain in McConnell’s grip unless and until Republicans decide otherwise. Maybe the success of the criminal-justice reform will inspire Republicans to stage their own revolt. It shouldn’t be this hard to pass overwhelmingly popular legislation. And if McConnell doesn’t see it that way, maybe Republicans need a new Senate leader whose priority is legislating.

Read more:

Michael Gerson: The latest chapter in the unfolding scandal of the American criminal-justice system

The Post’s View: A criminal-justice bill has support from both parties. Mitch McConnell shouldn’t delay it.

Eugene Robinson: In prison reform, a little of something is better than a lot of nothing

Radley Balko: Let’s stop pretending that Trump cares about criminal-justice reform