Criminal Justice

How Mitch McConnell got to ‘yes’ on a criminal justice vote

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Mitch McConnell had been defying the president and the president’s son-in-law — along with the Republican party in his own home state — as he refused to allow a vote on an overhaul of the nation’s criminal justice laws.

The Senate Majority Leader relented Tuesday and agreed to allow a vote — and his colleagues were quick to line up and claim credit for influencing the Senate’s most powerful figure.

What pushed McConnell, R-Kentucky, was a collective effort, by Republicans and Democrats, home state supporters and lobbyists, and the White House.

The Senate will now vote this month on the so-called First Step Act. It would boost rehabilitation programs for federal prisoners and give judges greater discretion when sentencing nonviolent offenders, particularly for drug offenses.

McConnell credited President Donald Trump’s request, and “improvements to the legislation that have been secured by several members,” to his decision to schedule a floor vote. He declined to talk to a McClatchy reporter Tuesday after the announcement.

Many of his colleagues, jubilant about the news, were quick Tuesday to say they were the influencers, claiming to know the secret of swaying their leader.

Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, argued the McConnell shift wasn’t all that complicated.

“All I had to do was what (McConnell) said: ‘Show us 60 votes and we’ll bring it up,” said Grassley, referring to the number of votes necessary to keep legislation alive.

But the credit-takers took a victory lap.

Sen. Ted Cruz, R-Texas, suggested his push to expand the list of violent offenders who wouldn’t be eligible for early release programs brought additional conservative critics on board and encouraged McConnell to move ahead.

“A number of senators have expressed their views that they agreed with me that we should not be releasing criminals early, and a lot of senators had said if my concerns were reflected in the bill, they would be more likely to support it,” Cruz boasted.

Sen. Lindsey Graham, R-South Carolina, who is expected to succeed Grassley as judiciary chairman next year, gave Jared Kushner — Trump’s son-in-law, senior adviser and First Step Act champion — the “lion’s share of the credit” for inspiring McConnell to act.

Graham said he spoke to Kushner Tuesday morning, before McConnell announced he’d go along, about the legislation and put Senate support for the measure at “close to 80.”

Sen. Tim Scott, South Carolina’s other Republican senator, gave credit to Trump — “he’s the MVP” — and the bill’s lead sponsor, Sen. Mike Lee, R-Utah, and suggested “anyone who takes credit for securing anything other than (them) is probably looking for too much credit.”

But Scott was also glad to say he, too, was involved with building consensus around the First Step Act, serving as a liaison between leadership and the rank-and-file — a role he also played in the lead-up to passage of the Republican tax bill last year.

With Lee, Scott helped develop a constantly-evolving list of senators to target. The two men, along with Graham and Grassley, divvied up members to talk to in order to find out what they needed to get to “yes.”

A turning point for the bill’s fate was a meeting that Scott attended two weeks ago. Afterward, Senate Minority Whip Dick Durbin, D-Illinois, agreed to a recommendation by the National Sheriffs’ Association that the First Step Act maintain tighter restrictions on when federal judges could skirt mandatory minimum sentencing requirements. Durbin had originally wanted to give judges more discretion.

More Republicans supported the bill in response to this concession, which in turn gave McConnell more confidence his members were more united around the legislation than he’d initially thought.

Sen. Cory Booker, D-New Jersey, gave Durbin credit for making sure the bill remained acceptable for his party while also “giving at some points” — like on the Sheriffs’ Association demand — for the sake of bipartisan compromise.

“There was a lot of shaping and massaging,” Booker said. “We’ve all been going back and forth in these last hours: ‘Would you shape this for us? Would you change that for us?”

Booker said there was a trail of text messages among members, but wouldn’t share them with McClatchy.

Ultimately, Booker said McConnell could no longer say “no” to scheduling a vote, given the breadth of support, including from the Koch brothers and law enforcement agencies to the ACLU and civil rights organizations.

“When this kind of alliance happens, if we can’t get something across the finish line, shame on us,” he said.

Mark Holden, general counsel to Koch Industries, which has been pushing for changes to the criminal justice system, explained McConnell wanted to avoid a messy floor fight that would take up valuable time at the end of the legislative session. Congress is hoping to ends its session December 21.

McConnell grew amenable after some GOP holdouts — including Cruz, Sens. Steve Daines of Montana, Thom Tillis of North Carolina and David Perdue of Georgia — were brought on board.

“The message I was hearing was that if the votes are there, then we’re going to have a vote,” Holden said of McConnell. “I don’t know if there’s a whole lot more to it than that. He has a lot going on with end of year issues and I think he was saying to all of us: ‘If you want to get it done, show me it’s worth taking up the floor time’ and I think we’ve been able to show that.”

Meanwhile, back home, Sen. Rand Paul, R-Kentucky, who along with his wife, Kelley, were outspoken supporters, kept up the pressure. Paul urged constituents to call McConnell, whom he singled out Monday as the one person who could make the vote happen.

“There’s always been a promise we would get a vote when we got to a significant majority,” Paul said of McConnell. “It’s a promise kept.”

Whether the legislation actually gets McConnell’s vote is still unknown. He said Tuesday he’ll wait for the final product to make up his mind.

Andrea Drusch of the McClatchy Washington Bureau contributed
Lesley Clark works out of the McClatchy Washington bureau, covering all things Kentucky for McClatchy’s Lexington Herald-Leader. A former reporter for McClatchy’s Miami Herald, she also spent several years covering the White House.
Emma Dumain works out of the McClatchy Washington bureau, where her reporting on South Carolina politics appears in The State, The Herald, The Sun News, The Island Packet and The Beaufort Gazette. She was previously the Washington correspondent for the Charleston, South Carolina Post and Courier. Dumain also covered Congress for Roll Call and Congressional Quarterly.