On Immigration, Conference Means Ruin

Published on August 23rd, 2013

And the failure of the GOP’s piecemeal approach.

By Fred Bauer
August 22, 2013

The Senate immigration bill has become toxic for many on the center-right, and some on the pro-worker left. Its purported “comprehensiveness” has been exposed as a morass of giveaways, backroom deals, and loopholes. Its promises of enforcement could easily be broken (that is, assuming they were designed to be kept), and, as even the Congressional Budget Office has conceded, its enforcement strategies, even if carried out, could still allow millions more illegal immigrants over the course of the next decade. In an environment where the White House’s “comprehensive” approach to health-care reform has turned out to be so greatly flawed, it is not surprising that many in the public and in Washington should also have grave doubts about the Obama administration’s version of “comprehensive” immigration reform, which is embodied in many respects in the Senate legislation.

Observing this grassroots anger about the Senate’s approach to immigration, House Republicans have countered with a “piecemeal” approach to the issue, in which the House would pass a series of small-ball immigration bills instead of agreeing on a sweeping grand bargain. If the piecemeal immigration measures go to conference with the Senate bill, though, the conferees could end up sabotaging this strategy.

There is much to be said for promoting targeted revisions of the immigration system. It can be harder to hide loopholes in smaller pieces of legislation. Focused bills can be debated more fully. Most important, any public policy can have unforeseen consequences, and it seems particularly challenging to forecast precisely all the implications of immigration policy. After all, few supporters of the Reagan effort at comprehensive immigration reform expected that the 1986 amnesty would lead to a quadrupling of the number of illegal immigrants living in the country. More modest measures could be effective at teasing out some of the details of immigration reform and limiting some of the fallout of the unforeseen.

However, the case for piecemeal reform falls apart if these individual measures go to conference with the omnibus Senate immigration bill. Once negotiations are opened, the conferees will find themselves debating not piecemeal measures but a giant immigration bill. The House might have some targeted talking points going into conference, but these points will be devoured by the bigness of the Senate bill. Instead of being independent pieces of legislation, the House’s piecemeal immigration measures would become mere details in a broader Senate-driven bill.

It’s easy to see how putting forward piecemeal reforms in the House, only to go to conference with the Senate, will strengthen the White House’s position on immigration legislation. Voting on piecemeal measures may provide temporary political cover for some Republican and Democratic House members: They can be on the record voting for tougher border-security requirements or more interior-enforcement provisions, and against instant legalization. These votes can give them talking points to ward off tough questions in primary or general-election campaigns. And when a bill comes out of conference, House Republicans and the remaining moderate Democrats can talk tough and then, with much feigned reluctance, pass Barack Obama’s immigration agenda. The immigration system needs to be “fixed,” after all — just like the health-care system prior to Obamacare.

Perhaps that is why Senator Schumer, one of the key generals for the Obama administration’s immigration campaign, is now so blithe about piecemeal reform in the House: He realizes that it will be only the vanguard for the Senate’s “comprehensive” approach if it goes to conference. Piecemeal reform, then, could be an effective political tactic to pass the major legislative accomplishment of President Obama’s second term. The best way to defang it is to refuse to go to conference at all.

Moreover, House Republicans weaken their own bargaining position by going to conference with the Senate. In any conference, Democrats would almost certainly act in lockstep loyalty to the president, so only a few Republican defections would be needed to give the White House an operating majority in conference. Should a bill emerge, there would likely be intense pressure (internally and externally) on the House to pass it, whether that involved breaking the Hastert rule (which requires approval from a majority of the Republican members to bring a bill to the floor), using a discharge petition, or luring over a bare majority of the Republican caucus. Speaker Boehner seems to have pledged that the Hastert rule would apply to any measure that comes out of a conference, but there could be great pressure on him to waive this requirement. House Republicans have their maximum leverage before conference. After an immigration conference, much of that leverage will have evaporated.

The following strategy would seem to be the only one that has the potential to keep piecemeal immigration reform authentically piecemeal. Let the House vote on its own independent measures. The Senate will be welcome to consider the House’s bills, and if it passes any of them, President Obama will of course be welcome to sign them. If the Senate wants to amend a piece of House legislation, it can do so, and the House can consider whether to accept the newly amended legislation. But if the Senate refuses to act on the pieces passed by the House, and insists on passing its own comprehensive bill, the all-or-nothing stubbornness of Senate Democrats is not the House’s fault, and the House will refuse to go to conference.

By keeping apart House bills from the Senate’s giant bill, this no-conference procedure would help House measures maintain their legislative integrity. After all, not going to conference on a bill is far from an unusual policy. As Walter J. Oleszek demonstrated in a study for the Congressional Research Service, well under 10 percent of all laws passed by Congress between 1999 and 2007 went through conference.

If Speaker Boehner and the rest of the House GOP leadership remain open to going to conference, proponents of forward-looking, pro-worker immigration reform will have little to gain and much to lose by supporting any new piece of immigration legislation. (As Andrew Stiles reminds us, a formal conference is not the only route to victory for the White House immigration agenda; informal negotiations between House and Senate leaders could also bring a “comprehensive” bill to the floor of each house of Congress. But going to conference on immigration would vitiate any efforts at piecemeal reform, and many of the dangers that a conference could pose for piecemeal reform also apply to informal discussions.)

In the increasingly Orwellian environment of contemporary Washington, where some are more equal before the law than others, supporters of an immigration system that affirms the dignity of all labor, promotes upward mobility, celebrates pluralism within a shared public space, and encourages an economic revival of the middle class have enough of a challenge before them; they don’t need any additional, self-inflicted wounds.

If House Republicans are serious about passing targeted pieces of immigration reform, refusing to conference with the Senate would seem a crucial component of that legislative strategy. But if the House does decide to go to conference, “piecemeal reform” could be another way of saying “let’s make the Gang of Eight 2.0 happen.”

— Fred Bauer is a writer from New England. He blogs at A Certain Enthusiasm, and his work has been featured in numerous publications.

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