Mitch McConnell hasn’t officially killed criminal justice reform in the lame duck Congress. But the deed is almost done.
Senate Republicans left Washington on Thursday afternoon without discussing the matter at two party lunches this week, according to two GOP senators, a reflection of both the bill’s fading prospects and the awkward divide it’s fueled within the Republican Party.
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McConnell has told Republicans there’s almost no window to take up the bill and debate it on the floor this year, according to multiple GOP sources. And supporters are now making a last-ditch effort to attach it to a year-end spending package, which most senior Republicans say is risky and unlikely to happen.
“Each passing day they get less,” said Sen. Rand Paul (R-Ky.) of the bill’s chances. “We’re still lobbying Sen. McConnell. He has all the power to allow it or not allow it.”
“The people who hate the bill are having their way,” said another Republican senator. “Inaction is a lot easier than action around here.”
The fortunes of the sentencing and prison reform bill among Republicans have risen and fallen as sharply as the stock market in recent days. One day opponents of the measure will think they have finally won, only to see advocates secure another co-sponsor. One Republican fighting the bill — which President Donald Trump has endorsed — calls it a “zombie” proposal.
In the House, Speaker Paul Ryan (R-Wis.) and other GOP leaders are just as eager to see the legislation succeed. They’ve recently discussed taking another go at the bill to try to pressure McConnell into action, according to two senior GOP sources familiar with these talks.
The House passed its own, narrower version of criminal justice reform last spring. But supporters of the legislation think another House vote approving the latest version of the deal struck between the White House and top senators would give the proposal a badly needed shot in the arm. It would also mean the House wouldn’t have to take it up again if the Senate were to pass it.
Bill proponents in both chambers are privately praying that Ryan will attach the legislation to the government funding measure and essentially jam McConnell.
“I think it’s going to be hard to leave town without a vote,” said Sen. Lindsey Graham (R-S.C.), who spoke to Ryan on Thursday. Ryan is “for the bill. Somebody needs to ask him, are you for putting it on the spending bill?”
Ryan is retiring at the end of the month, and he’s been a strong proponent of the criminal justice reforms. Supporters are whispering to him that he could add this to his legacy — though one source close to Ryan downplayed the possibility of this happening.
If the Senate brought up the bill for a vote now, it would surely pass, but not before revealing a painful Republican split between law-and-order hard-liners and reformers. And with just two weeks to solve a government funding impasse and craft some sort of response to Saudi Arabia for the murder of Washington Post journalist Jamal Khashoggi, time is running out.
The Senate majority leader is still telling supporters that there’s probably too little time to take up the bill, despite a broad bipartisan coalition support for it both inside and outside Congress. And Trump is leaning on McConnell, albeit quietly, telling him in several phone calls over the past month that he’d like to see the bill passed before Democrats take the House, according to a person familiar with the calls.
Senate Judiciary Chairman Chuck Grassley (R-Iowa) and other supporters have made a similar argument — that waiting until next year is akin to killing the bill. But McConnell has held firm to his view that the Senate calendar is too crowded and uncertain to take up such a divisive intraparty debate.
Trump has “said basically, Mitch, these are good reforms, this is very popular. Next year, the bill can move away from us in a divided house. We’d really like to see this done,” said the source familiar with the calls. McConnell has responded: “I’m stuck on time.”
McConnell and other GOP leaders have also told Republicans they could take the legislation up next year given Democratic interest in the subject.
McConnell “indicated that yes, he’d be open to taking it up next year. And it doesn’t change that much because for the most part you’ve got Dems backing it,” said Sen. John Thune of South Dakota, the incoming GOP whip. “The argument Grassley and others are making — that if the bill moves left with the Democratic House — that’s probably the most compelling argument for doing it now.”
To supporters, the time to act is now. A more sweeping criminal justice effort stalled under President Barack Obama, and advocates are deeply frustrated that the same appears to be happening under Trump despite his endorsement. Supporters are now entertaining a wide range of scenarios to push the bipartisan compromise through before the end of the year.
Sen. Mike Lee (R-Utah) typically seeks wide-open debates on the Senate floor but has suggested he could support a more closed debate if it helps speed passage of the bill, according to two Republican sources. House Republicans could also help trim the amount of time needed if they pass and send the latest Senate version, eliminating a procedural vote.
And supporters are still trying to rewrite the bill to get buy-in from more Republicans. They currently estimate they could get at least 26 of the caucus’ 51 Republicans, a majority of the majority they say soon will include Sens. Ted Cruz of Texas and Ron Johnson of Wisconsin. But the man actually paid to count the votes says those numbers are too bullish.
“Right now, we have a majority of the Republican Conference either undecided or no,” said Senate Majority Whip John Cornyn of Texas. Asked about more optimistic whip counts, he replied: “We only have one whip.”
Cornyn has told White House aides that they need to get the National Sheriffs’ Association in support of the bill. A number of GOP senators have told leadership that without the sheriffs’ support, they can’t support it. But advocates are close to giving up on the sheriffs, believing they will never be won over without dismantling the bill’s bipartisan framework.
That leaves two options, neither especially realistic given McConnell’s view and Trump’s reluctance to lobby him publicly: putting the bill on the floor and using a few days of limited floor time to pass it over the stiff objections of Sen. Tom Cotton (R-Ark.) and other senators who would block a quick vote; or attaching it to the must-pass spending bill, a high-risk move that could roil Cornyn’s whip count on keeping the government open.
“It’s in McConnell’s hands. There’s time to do it. It could be put in the omnibus bill,” said Senate Minority Whip Dick Durbin (D-Ill.). “It’s a bipartisan agreement. But McConnell has been opposed to an effort even supported by the president so far.”
Eliana Johnson and James Arkin contributed to this report.