The Washington PostDemocracy Dies in Darkness

Why isn’t Mitch McConnell bringing up criminal justice reform?

With overwhelming support from Democrats and hard yeses from as many as 21 Republicans, criminal justice reform legislation would sail through if Majority Leader Mitch McConnell (R-Ky.) brought it to the floor for a vote.

But so far, McConnell has dragged his feet, blaming intra-party fighting and a crowded end-of-the-year legislative calendar for why he hasn’t yet scheduled the bill.

Behind the scenes there’s a small uprising of Republicans, led by Sen. Tom Cotton (R-Ark.), who vehemently oppose the legislation that would, among other things, reduce mandatory minimum sentencing for some felonies. The prevailing narrative has been that the bill is stalled because McConnell is reluctant to fracture his caucus and that Cotton is a force to be reckoned with.

Trump priority of criminal justice overhaul bitterly divides Senate Republicans

But there’s a belief among some who are following every turn of this issue that maybe McConnell isn’t bringing up the bill because he simply doesn’t want to.

“People are getting caught up in that Tom Cotton smokescreen,” said Michael Collins, director of national affairs for the Drug Policy Alliance. “Anyone who knows anything about this knows it’s a McConnell problem.”

Criminal justice reform is one of those rare issues that unites unlikely bedfellows. It’s an issue that finds Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.) creating a “bromance” and even former president Barack Obama and President Trump, to an extent, on the same side.

And yet, for many years, bipartisan attempts to pass legislation that would overhaul the criminal justice system has failed to go anywhere. Even with powerful support from high-ranking lawmakers such as Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and Senate Minority Whip Richard J. Durbin (D-Ill.) and the weight of the White House, the legislation has struggled to become more than just a talking point.

With the clock ticking on this lame-duck session, the White House sent in top guns Vice President Pence and senior Trump adviser Jared Kushner, the president’s son-in-law, this week to encourage Senate Republicans to get the legislation done before the end of the year. The alternative, they argue, is renegotiating the existing language with a Democratic House majority next year that will probably demand a more ambitious bill.

McConnell has said little about his own feelings about the bill. In putting off the bill earlier this year, McConnell said he’d make time for it after the election. But that was always going to be challenging given the limited window for getting done other must-pass bills. He told Trump as much during a private meeting.

“He said, ‘We’ll make time.’ There were no qualifiers. You can’t get upset with stakeholders and members who want it brought to the floor to hold McConnell to that,” said Jason Pye, vice president of legislative affairs at FreedomWorks, a conservative and libertarian advocacy group that has been working on this issue. “I think he is at best ambivalent and at worst opposed."

On Tuesday, McConnell remained noncommittal, telling reporters he’s continuing to gauge support for the bill before deciding whether to use up floor time for it.

“We also just had an extensive discussion of criminal justice in our conference, both those who believe we should go forward with a bill this year and those who think we should not,” he said. “And as I indicated earlier, we’ll be whipping that to see whether — what the consensus is, if there is a consensus in our conference about not only the substance but the timing of moving forward with that particular piece of legislation.”

McConnell spokesman Don Stewart reiterated that Thursday and said members are still considering changes to the bill.

Pye said punting the bill to next year is essentially declaring it dead. Once Congress is divided next year, House Democrats will want a bill that goes further than this one does. Why would Democrats hand Trump and Republicans a win ahead of 2020?

Jesselyn McCurdy, deputy director of the American Civil Liberties Union’s Washington legislative office, agreed. By waiting until the lame duck or suggesting tackling it next year, “there’s a sense they don’t want to do it.”

As for McConnell, she said, “I don’t think he’s too jazzed about it. I don’t think this is a priority for him, either. He’s not necessarily a supporter.”

This week, the ACLU started running radio ads in Kentucky directly calling McConnell out for not bringing up criminal justice reform.

A voice akin to that in a movie trailer says: “There’s one person stopping it: Senate Majority Leader Mitch McConnell. That’s right. Mitch McConnell is preventing a bipartisan bill supported by Democrats, Republican and President Trump from even getting a vote."

When McConnell didn’t bring up in 2016, it was understood as not wanting to give Obama the legislative victory. But now, with so many leading Republicans and Trump, the self-proclaimed “law and order” president, supporting it, Collins said he can only come to one conclusion:

“Now it’s a very clear, ‘how do you deal with a problem like McConnell?’ ”