Two ways immigration reform could succeed and three ways it could fail

Supporters of immigration reform pray before the start of the reform bill’s markup before the Senate Judiciary Committee on May 9. (Win McNamee Getty Images)

By Dylan Matthews
May 24, 2013

Earlier this week, the Senate immigration bill passed the Judiciary Committee easily, by a  13-5 vote, with three Republican supporters. And odds are looking good on the Senate floor. If Democrats stay unified in favor of the bill (a big if), and if those three Republicans and the two members of the Gang of Eight who are not on the committee back it on the floor, that’s 60 votes in favor, enough to break a filibuster. Supporters are hoping to have more like 70 yes votes, a surprising possibility.

But even if the bill passes the Senate, it has a long way to go before it might hit President Obama’s desk. The reform bill the Senate took up in 2006 passed with 62 votes, only to go nowhere in the House. So, how is the Gang of Eight deal going to pass? And what could sink it? Here are two plausible routes to success and three ways the bill could fall short.

Ways to pass

Gang of Eight Two: Lower House Boogaloo

“I actually don’t think the House is going to take up the Senate bill,” Marshall Fitz, director of immigration policy at the Center for American Progress and a major player in the 2006 and 2007 efforts, says. “There’s no way.” That seems to be the consensus of observers who worked on that fight, not to mention House leadership, which issued a statement rejecting the possibility of simply passing the Senate bill. If something gets to the president, the House is going to have to pass its own bill first.

Perhaps the House’s most natural option would be to pass a bill put together by its own bipartisan Gang of Eight. Reps. Xavier Becerra (D-Calif.), John Carter (R-Tex.), Mario Diaz-Balart (R-Fla.), Luis Gutierrez (D-Ill.), Sam Johnson (R-Tex), Raul Labrador (R-Idaho), Zoe Lofgren (D-Calif.), and John Yarmuth (D-Ky.) reached a deal on a bill for comprehensive reform. The measure includes a path to citizenship after 15 years (the Senate bill’s path takes 13 years). The bill leaves out the issue of guest workers entirely, and takes a hard line on immigrant eligibility for Obamacare (the Senate bill allows newly legalized immigrants with provisional status onto exchanges but bars them from subsidies).

That group is hoping to have legislation by June. If that bill passes the House, it and the Senate bill would go to conference committee, where differences between the two would have to be worked out before it goes to a final vote in both Houses. Clarissa Martínez-De-Castro, director for civic engagement and immigration at the National Council of La Raza, thinks this path could work. “There have been statements from [House Speaker John] Boehner that they think that a bipartisan proposal in the House is a way to go, and they want to see the Group of Eight continue to make progress,” she says. ” It’s possible to see how the bipartisan bill could get there.”

Small bill, big conference

The other way to do it would be for the House to pass a more limited bill, including less  measures that have less GOP opposition than those included in either chamber’s Gang of Eight’s bills. Rep. Bob Goodlatte (R-Va.), the chair of the House Judiciary Committee who opposes a path to citizenship, wants to pass two bills expanding agricultural guest worker programs and requiring employers to use E-Verify, an electronic verification system for determining workers’ legal status.

Fitz thinks that’s the likeliest way for the bill to get to conference committee. “If I was in Vegas, this is what I’d be betting my money on,” he says. “I don’t have a lot, so I wouldn’t be losing all that much…They’ll do high skilled and E-Verify and border security, and they’ll do agriculture, and they may even try to do DREAM. That would be a stretch, but they’ll do those pieces, and they’ll be able to pass all of those with strong Republican support, and that’ll be the package they send into a conference. What will come out is a conference report with a legalization component, and that component will be enough to get most of the Republicans to vote against it.”

That’s where this plan gets tricky. For that legalization-inclusive conference report to get past the House, Boehner (R-Ohio) and the rest of the leadership will have to violate the Hastert rule, which requires that any bill going to the floor have the support of a “majority of the majority” — that is, a majority of House Republicans. To pass a bill with almost all Democrats and a minority of Republicans in favor, Boehner would have to break that rule. But that’s easier than trying to pass a legalization bill twice, and breaking the Hastert rule twice in the process. “I don’t see how they have a vote on the House floor for legalization that gets a majority of the majority,” Fitz says. “And if they’re not going to do that, then why would they want to force that vote twice?”

Andrea LaRue, a partner at NVG who served as an aide to former Senate majority leader Tom Daschle and represented the United Farm Workers in the 2006-07 debate, thinks it’s too early for that kind of talk. “I just think that’s premature, I really do,” she says. “I think a lot of people think the Hastert rule may need to be put to the side, but I think we have to consider all the options that Boehner has, and what momentum there is in the House. Success breeds success.”

She also argues that this isn’t necessarily in total tension with the House Gang of Eight path. “Whether their product is actually formally moved through the legislative process or becomes the yardstick, either way it’s going to influence the ultimate conference process,” she says. Fitz agrees, saying components of the House bill that get sent to conference committee “may be drawn from their bill.”

Ways to fail

Pulling the triggers

The one change to the bill that observers agree could kill it is anything that strengthens the “triggers” it cites, tying legalization to progress on border security and employer verification. As its summary explains clearly, the bill bars the legalization component from taking effect until “the Secretary of Homeland Security submits a written certification to the President and the Congress, based on analysis by and in consultation with the Comptroller General, that each of the following measures has been achieved:

• the Comprehensive Southern Border Security Strategy has been submitted to Congress and is substantially deployed and substantially operational;
• the Southern Border Fencing Strategy has been submitted to Congress, implemented, and is substantially completed;
• the Secretary has implemented a mandatory employment verification system to be used by all employers to prevent unauthorized workers from obtaining employment in the United States; and
• the Secretary is using an electronic exit system at air and sea ports of entry that operates by collecting machine-readable visa or passport information from air and vessel carriers.

But perhaps some skeptics pass amendments strengthening the triggers so that, say, the secretary of Homeland Security doesn’t have to certify the above measures, but the responsibility instead passes to House and Senate committees, or the comptroller general or some other party . Or perhaps a hard numerical threshold, like a 90 percent capture rate at the border, is added.

All of these possibilities trouble advocates. “We’re pretty concerned that any hardening of the triggers, trying to connect the triggers to specific benchmarks like the 90 percent or 100 percent effectiveness rate or whatever,” Fitz says, “if that becomes tied to the legalization, that will be a bridge too far.” He thinks supporters of reform will be able to beat such a move, but it’s a concern.

“There will be things that make this roadmap to citizenship harder which we have to be very careful about,” Martínez-De-Castro says. “They seem to tinker with something very small, but this path is long and arduous as it is.”

LaRue agrees that triggers will be a concern, but she says they’ll mainly be brought up by people already opposed to the bill. “When the word is just being used to say citizenship is a mirage, I think that’s pretty easy to poke a hole in. If there weren’t any triggers, if the systems in the bill were weak, I’d feel differently about this,” she says. “But I think if the word trigger is going to become synonymous with no, the backlash will be really big.”

The three B’s

The three other issues that could pose problems for the bill are summed up well by what Fitz calls “the three Bs”: border security, benefits and biometrics. “There’s obviously going to be amendments to try to increase security at the border,” Martínez-De-Castro says. Fitz expects amendments calling for more border fencing, double-layered fences and so forth. While some compromises are possible, the bill is already very aggressive on the issue. “We don’t think that they have any more room to give on border stuff because of how much has been done and that most of what they want to talk about doing now, and the resources they want to throw at the border, really are not a serious effort to strengthen border security but a political effort from people offering it to block the bill,” he says.

As the disputes in the House Gang of Eight on health benefits show, eligibility for federal benefit programs could be an issue. An amendment to prevent newly legalized immigrants from receiving the Earned Income Tax Credit failed in committee, but Sen. Chuck Schumer (Ill.), a leading Democrat in the Senate Gang of Eight, has suggested he’s open to that change. “[Sens. Jeff] Sessions and [Orrin] Hatch we’ll see on the benefits stuff,” Fitz predicts. Hatch (R-Utah), who backed the bill in committee but hasn’t committed to supporting it on the floor, will likely offer amendments barring newly legalized immigrants from collecting Social Security for work done when in the country illegally and restricting the ability of HHS to provide welfare benefits to immigrants.

And then there’s biometrics. Republicans in the Senate, notably Sessions, have promoted a biometric entry/exit system at U.S. airports. “I do see the visa exit system question resurfacing,” Fitz says. During markup, “Sessions was red in the face and incensed about some DHS report on biometrics…that’s something he’s going to be coming back to, and there’s obviously a lot of support on it from both sides of the aisle.”

Democratic defection

“This year, I think every single Democrat is in play,” Fitz says, at least in the Senate. And maybe this time is different. But in 2006 and 2007, there were sizable Democratic defections. In 2006, four Democratic Senators voted no. In the first go-around in 2007, 13 defected, and the second attempt saw 15 bolt.

Of the 2006 Democratic “no” votes, only one is still in office: Sen. Debbie Stabenow (Mich.). She also voted no both times in 2007. The next three most likely “no”s are  Sens. Jay Rockefeller (W.Va.), who didn’t vote in 2006 but opposed both attempts in 2007, and  Claire McCaskill (Mo.) and Jon Tester (Mont.), who weren’t in the Senate in 2006 but voted no both times in 2007.

There are six other Democratic, or Democratic-caucusing, senators still in office who opposed at least one of the 2007 bills: Sens. Max Baucus (Mont.), Barbara Boxer (Calif.), Sherrod Brown (Ohio), Tom Harkin (Iowa), Mary Landrieu (D-LA), Mark Pryor (Ariz.), along with the independent Bernie Sanders (Vt.).

Some of these senators opposed the bills from the left, arguing that the guest worker provisions would undermine low-income Americans’ employment opportunities. That camp includes Boxer, Brown, Harkin, and Sanders. They’re all likely “yes” votes this time around, with Brown, Harkin and Boxer signaling support already.

But others seemed skeptical of the entire idea of a legalization bill. Baucus, Landrieu, McCaskill, Pryor, Rockefeller and Tester all voted for an amendment in 2007 that would have stripped any legalization component out of the bill. Some of them appear to be on board this time around. Despite Rockefeller saying the 2007 bill “allows 12 million people who are here illegally to jump to the front of the line,” sources close to the senator tell The Post that he supports reform efforts this time around. Landrieu’s office passed along this statement, suggesting she’s open to the bill:

There’s broad understanding now that we must address immigration reform for the economic strength of our country. I hope we can move forward on reform that includes smart border security measures; provides a strenuous, but fair path forward for undocumented immigrants currently living in the U.S; and addresses the needs of our industries, particularly agriculture, hospitality, and high-tech which have specific needs.

As we seek to provide visas to highly-skilled workers and entrepreneurs from around the world to spur economic growth in the U.S., I am also focused on providing a ‘visa to the middle class’ for our domestic workforce that is in great need of greater access to STEM education and other training to enhance their competitiveness. I am confident we will have time for thorough and vigorous debate on this important legislation.

Finally, as the Chair of the Homeland Security Appropriations Subcommittee, I will be particularly involved in how these enhancements are paid for. There is already great pressure on our budget and I’m glad to see that this bill brings in additional revenues through penalties and fees to help pay for necessary reforms.

McCaskill is also expressing more openness to reform. Her office issued the following statement on her behalf:

I’m continuing to look at the bill to make sure it will penalize law-breakers and stress holding employers accountable for violating the law by knowingly hiring undocumented immigrants, but I believe the bill does work to address these priorities. I think this bill is a good compromise—with great bipartisan support, and I think between John McCain, Marco Rubio and the other Republicans that are working on this bill, we’re going to end up with a bipartisan bill that most Senators are comfortable supporting.

Others aren’t turning around quite as fast. A spokesperson for Baucus says, “Senator Baucus is reviewing the bill and talking to Montanans to get their feedback.” A spokesperson for Sen. Joe Manchin (W.Va.), a conservative Democrat who was not in office during the 2006-07 battles, says he’s undecided, and that border security is his main concern.

As it stands, it looks like even previously skeptical senators are coming around. But a unified caucus is far from a sure thing.