On the Failure of Criminal Justice Reform

Editor's note: I've decided to try to write short blogs in lieu of tweetstorms on stories and ideas that require more than 140 characters of response. One reason I don't blog more is heavy editing takes times. So be forewarned that this sort of post will be more stream of consciousness, and should be treated as such....

Carl Hulse had an interesting look at the demise (for this year) of a bipartisan criminal justice reform bill that seemed to have everything going for it—support by leading Republicans like House Speaker Paul Ryan and Senate Majority Whip John Cornyn, passage by the Senate Judiciary Committee on a bipartisan basis, support from powerful liberal and conservative interest groups, etc. 

Hulse details the reasons why the bill failed, many of which link to the presidential campaign. But he omitted one that I think deserves more attention. This strikes me as the sort of bill that previous Republican Senate leaders like Howard Baker, Bob Dole, or Trent Lott would have brought to the floor for a debate and vote. It seems likely that there are more than 60 votes in support of the bill, so a filibuster could be broken. The bill would represent the kind of bipartisan achievement that both parties used to hail, but now happen only rarely. 

McConnell, however, has often been mischaracterized as a deal cutter. He's not. He's a master parliamentarian and a shrewd political tactician, whose motives are often driven by politics. He's a political pragmatist far more than a legislative one. 

He also hails from Kentucky, a hotbed of the kind of populist Republican sentiment that drove the Tea Party and Trumpism. Thus, he went from champion pork barreler to staunch fiscal conservative. Earlier in his career, he morphed from Ripon Society Member (a leading group of moderate to liberal Republicans) to conservative as he sensed the winds of political change blowing.

Legislatively, McConnell is perhaps best known for manipulating parliamentary tools to stall campaign finance reform (when that effort failed, he sued), and to tie the Senate in knots when Democrats have control. He's not the old school style of deal cutter whose focus is on passing the best legislation possible under the circumstances. While McConnell has served in the Senate for 32 years, he hasn't accumulated a decades long record of bipartisan accomplishment like John McCain (AZ), Orrin Hatch (UT), or Charles Grassley (IA). 

All of that is to say that currently he's much more concerned with avoiding any legislation that splits his Republican caucus than he is about legislating. Whereas previous Republican Senate leaders possessed great dealmaking skill, McConnell has rarely cut deals short of crisis situations where he faced little choice. Politically, he'd much rather avoid angering the Jeff Sessions (AL)-Tom Cotton (AR) wing of his caucus, which is heavily aligned with Donald Trump on the issue of criminal justice policy than with the majority of the Senate. 

He faces 0 political risk by preventing the bill from becoming law. By contrast, floor debate on the bill would expose a Republican fissure, and open McConnell to charges of being soft on crime in his next primary election. For a guy more focused on politics than policy, those risks look supremely unattractive. 

I raise this point, because I believe that McConnell's posture, and his focus on political and tactical victories is a leading cause of the demise of the bipartisan lawmaking that used to characterize the Senate. While there are certainly other factors in play, McConnell doesn't share the zest of some of his fellow senior Republicans for legislative achievements, and hasn't minded utilizing any tactic to scuttle legislation that doesn't meet his political goals—whatever the cost to the Senate and the country. 

It's one reason why I see little hope for great legislative achievements under the next president—McConnell will likely remain Senate Republican leader through 2020, and quite possibly beyond. The retirement of his Democratic counterpart, Harry Reid (NV), also a political pugilist, will help the situation, but I have little confidence that McConnell will change his stripes.