Backers of legislation overhauling the federal criminal justice system believe Senate Majority Whip John Cornyn has become an obstacle to passage of the bill, a top legislative priority for President Trump before the clock expires on the Republican Party’s full control of Congress.
Senate Majority Leader Mitch McConnell, R-Ky., is taking a hands-off approach to the measure, known as the First Step Act. That has put the onus on Cornyn, and made the Texas Republican the focus of criminal justice reformers who fret that a rare opportunity to revamp federal prison operations and sentencing guidelines could slip away.
Cornyn is balancing competing concerns: McConnell’s apprehension about the limitations of the Senate calendar in the post-election, lame duck session, with a must-pass government funding bill, the farm bill, and judicial nominations left to process; significant GOP opposition led by Sen. Tom Cotton, R-Ark., a Trump ally on most issues; and a hard sell in favor of the bill from the White House, led by Trump and Jared Kushner, the president’s son-in-law.
Some Republicans and political operatives involved in the effort to pass the First Step Act are speculating that Cornyn, who in the past championed elements of criminal justice reform, is simply acting as McConnell’s agent. Cornyn’s priority could simply be to prevent a lengthy floor debate that would divide the GOP conference and eat up precious floor time that could be used for top conservative priorities. The Christmas holiday is essentially three weeks away.
But in an interview Wednesday, Cornyn flatly rejected accusations that he opposes the House-passed First Step Act or is scheming to delay a vote on the legislation until next year, when it would have to be revived and voted on all over again by the 116th Congress. “That’s false,” the No. 2 ranking Senate Republican told the Washington Examiner.
Cornyn’s light approach, with an apparent willingness to let the issue slide into 2019, has piqued the ire of First Step Act advocates.
“Given how inconsistent he’s been, I don’t know if the whip count is going to reflect the true sense of the conference,” said Jason Pye, vice president of legislative affairs for FreedomWorks, a conservative group.
If the bill is bumped to 2019, advocates worry the newly minted Democratic majority in the House would load up the new version with provisions unacceptable to Senate Republicans — and the White House. Republicans in the outgoing House majority overwhelmingly support the existing bill. It would enact a combination of prison and sentencing reforms, improving conditions for inmates in federal prisons and reducing sentences, including for the currently incarcerated.
The proposed sentencing reductions are in particular objectionable to some Senate Republicans. Cornyn said he is working to craft changes that would create consensus among the vast majority of his conference and prevent a lengthy floor debate. With a must-pass government funding bill, farm bill and judicial nominations to process, there is little time to spare before the 115th Congress concludes.
“Unfortunately, if we don’t do it now, then next year that empowers Nancy Pelosi and the Democrats to move this bill far to the left, which means we may not do it at all. So to mean that argues in favor of trying to do it now if we can, and I’m still trying to do that,” Cornyn said. “Any suggestion that I’m less than enthusiastic about the topic is just not true.”
One Republican senator described Cornyn’s approach to whipping the package as “informational,” explaining that he isn’t urging colleagues to support the bill. A knowledgeable Republican aide added that Cornyn has been asking members a two-part question as he assesses where support for the package stands: Do you support and would you prefer consideration be delayed until next year?
Drew Brandewie, a Cornyn spokesman, said that this depiction of the whipping strategy was incorrect. “We don’t divulge these conversations between members, and you can bet whoever does has no clue what they’re talking about,” he said.
Not all proponents of the First Step Act are disappointed with the senator.
“You can say he’s playing both sides. But I think he’s looking for the best path forward,” a Republican lobbyist said, on condition of anonymity in order to speak candidly. “He has been very straight with us, and is trying to get something done.”
But some major players in the effort to pass the package now before the Senate aren’t buying Cornyn’s explanation.
They believe the majority whip is deliberately slow-walking the bill internally even as he maintains enthusiastic support for the bill publicly. With just weeks until Christmas, followed immediately in January by the Democratic takeover of the House, that approach is as good as killing the bill. Holly Harris, executive director of the Justice Action Network, is among them.
She said there are at least 32 Senate Republicans prepared to vote for the bill, which, with the presumed support of Senate Democrats, is enough to reach 60 votes and kill any filibuster. That’s probably not enough GOP support to satisfy McConnell, who prefers that 40 or more Republicans support any major legislation, although Harris is convinced there’s more support to be had with a more aggressive whipping strategy, especially given Trump’s strong backing.
“The timing is the ballgame,” said Harris in remarks echoed by Cornyn critics on and off Capitol Hill. “If there’s any question as to whether the senator is supportive of voting this bill, right now in lame duck, you have to consider whether this senator is supportive at all.”
This story was updated.
