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It's Not Going To Happen

by Paul Donnelly

Most observers think if comprehensive immigration reform is going to happen before the 2006 elections, it will happen this fall or early next year (see ILW.COM, August 11th, "Major Change Coming"). The closer a legislative debate gets to next year’s campaigns, so the calculus goes, the less likely a legislative compromise will be. This puts the Republican leadership and the Bush administration onto the pointy parts of a choice that makes significant change in immigration law once again less likely than it appears – and good immigration reform nearly impossible.

Put it this way: when both sides want an issue to run on more than a new law to enact, nothing will happen. And if both sides think what can pass is worse than what they’ve got, nothing will pass.

The politics haven’t changed. The Republican majority in both the House and Senate, and their base in states and Congressional districts nationwide, simply does not favor increases in America’s foreign-born population. The Bush administration’s famous commitment to a guest worker deal with Mexico has not produced anything that might even be called a plan, much less legislation, and their favored political strategy of simply clearing space for alternative proposals like McCain-Kennedy and Kyle-Cornyn has divided the Republican Party without unifying Democrats on an actual Democratic alternative to the Republicans’ anti-Ellis Island model.

The Republican party, particularly in the House, does not want bipartisan legislation. That is, if a bill cannot get a solid majority within the Republican caucus, it will depend on Democratic votes to pass, and thus be a defeat for the Republican leadership. So it will not come to a floor vote. Period.

Of the 232 Republicans in the House, more than 60 are members of the restrictionist Immigration Reform Caucus. Without them, the House leadership is unlikely to move a bill at all. Take those 60 plus votes from the Republican Caucus, and you’re left with 170, which is not enough. True, they are not categorically opposed to "earned legalization" – but that is a limited opportunity, because not serving on the relevant committees they won’t focus on anything but what their leadership asks them to do, as the issues are framed for them.

Republicans and the echo chamber advocates have asked them to focus on a bogus concept of the ‘economics’ of immigration, which has no substance, a shaky constituency, and represents a failed political strategy.

Remember: the whole purpose of a partisan Republican leadership in the House is not to force members to face re-election having passed legislation that depended on the Democrats to enact.

Scandal-plagued House Republican Leader Tom DeLay must consider the immigration issue a Godsend. He has taken a hard line, precisely because framing the issue as border controls and anti-terror measures enables him to play to his largely restrictionist base. This is one of the few issues breaking their way – Iraq is not, the economy is not. The Republican majority in the House is vulnerable next year. But the shift of even Democratic Governors like Bill Richardson, the great Hispanic hope (who declared New Mexico in a state of emergency and has met with vigilantes) shows that the echo chamber may have radically misjudged the political mood.

Speaker Hastert poses a different question. He may be persuaded that a guest worker program can work, despite all the evidence. He has also won some close votes lately, e.g., CAFTA. So it is possible, if improbable, that Hastert will over-rule DeLay and force a vote on an immigration bill: he has said it will be a priority. But he does not have a White House bill to push.

So it is very difficult to see the circumstances in which any of this happens before next spring, when the calendar may simply shelve the whole shebang. The reason is summed up in three dates: September 11, 2001; July 7, 2005, the dates of terrorist attacks in the United States and Britain; and November 8th, 2006, the election.

In the current political climate, dominated by the war on terrorism, restrictionists hold the veto on immigration legislation. They are the ones – with close to 200 votes in the House, and perhaps 40 in the Senate – who reasonably expect to be in a better negotiating position in 18 months than they are in right now. Moreover – as Richardson shows – restrictionist Republicans see Democrats coming toward them: why would restrictionists move away from their goals? There is no example of someone losing because he was too identified with restrictionists, comparable to Spencer Abraham, who lost his re-election despite being AILA’s darling. (The most famous counter-example, Pete Wilson of California, didn’t lose an election, he simply didn’t manage to ride anti-immigration to the Presidency. Believe it or not, most members of Congress focus on their own elections, not the President’s.)

ILW.COM readers may not like that assessment – but there isn’t much dispute that a terrorist incident, even one that ends in an arrest rather than killings, would help restrictionists more than those who favor ‘open borders’.

The current mess may finally be the moment when advocates for the Ellis Island model recognize that their strategy has been wrong for quite some time, framing the issues in a way that fails.

Since George Bush became President in January 2001, immigration advocates have insisted that finally there is a Republican President who is on their side, and it was just a matter of time before the details of what Frank Sharry, Dimitri Papademetriou and others called "the grand bargain" would be worked out. The echo chamber was confident – there would be a guest worker program, and some way for illegal residents to get green cards, and – almost as an afterthought – something for the families who are outlawed and exiled, and the slow grinding that AILA and the ACLU has been doing on the political connection between anti-terror measures and immigration policy would eventually pay off.

Except – immigration advocates, like the Democratic Party as a whole, continue to think in terms of actually enacting legislation, rather than of standing up for principles – like the Ellis Island model, the direct connection between immigration and citizenship (see The New Republic article dated June 19, 2000 by John B. Judis, registration required); and the sanctity of marriage,0213-donnelly.shtm. But successful politics depends on framing issues to move voters – which this approach has utterly failed to do: "Extend 245(i)!" is not much of a battle cry to move masses. What passes for ‘new thinking’ among Democrats – like the discovery that deporting 10 million illegal aliens would expensive – is nearly fatal framing, placing Democrats on the side of ‘the law does not matter’ during a war on terrorists.

Front-page stories, Congressional testimony, editorials and Op-Eds compound the error: "The economic arguments [for immigration reform] are very strong and have not been laid out for people to consider," lobbyist Terry Holt told the Wall Street Journal on August 16th.

But they have been laid out, and they are not strong. (Not that the folks in the echo chamber know this.) The National Academy of Sciences comprehensively examined the economics of immigration in 1997, and authoritatively concluded it ain’t much of an argument: the total value added to the U.S. economy because of immigration might be as much as $10 billion a year, but no higher – in a trillion dollar economy. That’s the equivalent of picking a dime off the sidewalk when you have three twenties, two tens, three fives, four singles and a fistful of change in your pocket: it’s frugal, but hardly lucrative.

The far stronger arguments necessary for a more effective political strategy based on easily understood (and, incidentally, not bogus) values like family and citizenship, have been utterly neglected because they are not compatible with a guest worker approach,0121-donnelly.shtm

The economic arguments for immigration "reform" are all calls for labor subsidies – for a government-supplied workforce in favored industries, from information technology with the H-1B to agriculture with the AgJobs bill -- and everybody knows it. That’s the rock on which the Republican coalition is breaking up, steered to disaster by simple dishonesty.

Restrictionists and libertarians alike – the contradictory pillars of Republican immigration advocacy --- do not want to accept the obviously sieve-like enforcement mechanisms and open subsidies of a guest worker program that seems inspired more by Rube Goldberg than Milton Friedman. So insisting on that approach has limited persuasive power over the Republican base – which may have been reached.

Yet immigration advocates continue to delude themselves that on behalf of a lame duck President with low favorable ratings and a depressing war to fight, the Republican Party will stiff its base – business, no less than middle class and social values voters – for a scheme about which literally no knowledgeable person can keep a straight face while insisting "it can, too, work".

A small flock of little birds tells me of recent White House meetings, part of a series in which key players in various constituencies have been brought up to talk about immigration reform. Having no specific proposal to sell, White House staff listens at these meetings – and they are not hearing what they want.

The premise of a guest worker program, after all, vividly reflected in the Kyle-Cornyn proposal of a ‘must-leave’ visa, is that the workers are temporary and WILL leave. Politically, to enact legislation that would do that depends on the support of employers who want temporary workers.

But in these White House meetings, employers from roofers to software are saying to the White House that they do not want their foreign-born workers to leave, and do not understand the incoherent message the White House is trying to craft: Pro-guest worker is NOT pro-business.

So much for the primary Bush strategy. What of the secondary ones?

As even Milton Friedman points out,0816-Donnelly.shtm guest worker programs are highly regulated subsidies and the opposite of a free market. Despite a trickle of newspaper stories (two in the Washington Post within a week) it’s not pro-family to enact guest worker legislation, nor even amnesty, necessarily.

So religious groups are being urged to support a guest worker bill that is guaranteed to make the anti-family provisions of immigration law worse (as in fact the amnesty did between 1986-1991, when 3 million amnesty recipients resulted in a million person backlog in the nuclear family category just five years later), not better. The confused support that humanitarian groups bring to needlessly complex compromise legislation gets it so far – but no farther.

It may bring it far enough for the Senate to act first, because if the House moves, the issues will be far more focused on border security and provisions against terrorism, and the requirement for illegal residents to leave the country. Framing the issues the way the Senate wants moves it along – a bit.

The best guess is that there are between 50 and 55 votes for McCain-Kennedy in the Senate, but not 60. This means that there will be at least one big vote on an amendment along the lines of Kyle-Cornyn, but that – if the White House backs McCain-Kennedy – the echo chamber’s favored legislation will pass.

There is not a Republican majority in the House for anything similar to a guest worker program with earned legalization that means, in fact, it isn’t about guest workers at all. There is a very large Republican minority – and perhaps more – for the opposite approach.

That means that either nothing will pass the House, and there will be no legislation, or that the House and Senate will conference on widely incompatible bills. It also means a matter of months will pass, taking us into 2006 before the real nut-cutting moment arrives.

In the last two major House-Senate conferences on immigration legislation, the echo chamber advocates got taken to the cleaners and stuck with the bill: in 1990, the House passed and the Senate rejected making the spouses and minor children of legal permanent residents into an unlimited category. When the House leadership went to the groups looking for support for this priority, they yawned. Despite the pro-family provisions of the McCain-Kennedy bill, this is not a moment to recapture the opportunity lost 15 years ago – and the political decisions made in the meantime have pushed that opportunity further away: the very people who are now trying to say families are, too, important, were saying this was not a problem just a few years ago.

During debate over the 1996 reforms, Senators like Mike DeWine of Ohio stated flatly that providing green cards to spouses and kids was a second amnesty, and he helped an overwhelming Senate majority to defeat it – because that was how it was framed. Key players like Jeanne Butterfield of AILA agreed with that result, minimizing the atrocity: Butterfield said the then 1.1 million backlog of nuclear family members was merely the "amnesty echo", and would fade over time.

She was wrong. Scholars like Jeff Passell and David Martin have confirmed what ILW.COM readers knew two years ago: the 2A backlog is at least 50% higher than it was in 1996.

Worse, it was AILA’s champion at the time, Senator Spencer Abraham, who prevailed in the conference over Lamar Smith (who was opposed) to get the 3 and 10 year bar into the final legislation.

This record should not fill folks with confidence in the strategic brilliance of ‘pro-immigration’ lobbyists.

In simplest terms, the basic dispute in this subsidy debate is whether illegal residents must leave to get a temporary work visa (as in Kyle-Cornyn) or not (McCain-Kennedy). That doesn’t lend itself to compromise – and it masks the error in the assessment voiced by Tamar Jacoby of the conservative Manhattan Institute, that "enforcement alone can’t get it done."

The strategy that aims at replacing illegal immigration with a guest worker program as a way to increase green cards for families, and will accept harsh enforcement measures as a price for that bargain, will fail. Substantively, it is simple: a guest worker program is a highly regulated legal labor market, and so cannot compete with an unregulated illegal one. Guest workers don’t replace illegal ones; guest workers BECOME illegal workers.

Politically, there is an extra step: for example, White House meetings with the landscaping and roofing industries. They want both to support a guest worker program. Both depend on illegal workers. Both want some way to legalize their workers. Both are happy to have some complex regulatory scheme that will suppress their workers’ wages – but here, they part company. Working on a roof pays more than working on the lawn. Roofers want permanent workers while landscapers want a permanent supply of temporary workers. The only way for a guest worker program to work for landscapers is enforcement to keep their employees from taking higher paying jobs on roofs. That means either the ‘earned legalization’ approach that everyone understands is amnesty by another name, by which illegal workers became legal permanent residents, or actual enforcement of employer sanctions.

Take your choice.

Which brings us to the current White House strategy, of selling a decision they haven’t made yet through a group called Americans for Border and Economic Security. That relies on people like Dick Armey, the former member of the House leadership who has made common cause with the ACLU on civil liberties issues arising out of 9-11. Armey, a famous small-government, anti-regulation advocate, may be able to argue with a straight face that a guest worker subsidy is the free market solution, but people who actually meet payrolls know better: that’s the message the White House has consistently gotten from its meetings with employers.

And you will ice skate down the Rio Grande before Dick Armey and the libertarian wing of the Republican Party fights with the business lobbies to actually enforce employer sanctions.

So there is simply no political payoff for forcing these compromises on the Republican Party, especially in the House. Business groups don’t want what they’re being offered, and the Bush administration hasn’t actually figured out what it is they’re offering, anyway.

Nor is the actual legislative dynamic promising.

In 1990, the essential House-Senate compromise was to accept business provisions (like the "perfection" of the H-1B program), rather than unlimited nuclear family immigration.

In 1996, the echo chamber advocates killed legal immigration reforms that would have provided green cards for all 1.1 million nuclear family members in the 2A backlog, arguing that this most egregious anti-marriage provision of U.S. law would fade away. It has increased, to at least 1.5 million. When the harshest measures of IIRIRA were passed, no one spoke up to compromise them – because, without legal immigration provisions on the table, there was nothing to bargain with.

In the long march to H-1B increases that were the only immigration show on the Hill before 9-11, the echo chamber advocates floundered around before deciding that making 245(i) permanent would be worth their support for a high tech bracero program: but the H-1B hike happened and 245(i) did not.

9-11 did not improve this situation any, nor did it change the basic – and continuously failed – echo chamber approach to immigration politics.

A prediction: the McCain-Kennedy bill will pass the Senate essentially intact before the House acts, because the Bush administration cannot tell the House exactly what it wants. If the Senate bill loses any significant provision, it will be the family numbers, which at least should cost it the support of humanitarian groups; if it gains any enforcement mechanism, it will be the Kyle-Cornyn requirement to leave the country, proving that guest workers are actually ‘temporary’. That will cost it business support, which was shaky anyway.

A further prediction: the House will take up Kyle-Cornyn, or a leadership bill cobbled together by DeLay from those guest worker provisions and those offered by the restrictionist Immigration Reform Caucus. The goal will be to frame the issue clearly as border enforcement and anti-terrorism legislation with worker protections, because that is a way for Republican House members to protect their base in 2006. They will want an issue, rather than a law – at least, any law the Senate will be ready to accept.

If that bill cannot pass the House with a solid Republican majority – say 185 of the 232 Republican votes, which means at least a third to half of the restrictionist caucus – the leadership will not bring it to a vote.

So if that bill passes the House, there will be a conference with widely different provisions to sort out with the Senate. The key House player at the table will be Judiciary Chair George Sensennbrenner (R-Wi), and the key House leader will be Speaker Hastert – who will have a primarily negative agenda. There will be two things he does NOT want: to have the elections of his 232 Republicans nationalized. Nationalizing the House elections is what gave Republicans the majority in 1994. Outside of border districts (which are overwhelmingly restrictionist for Republicans), immigration is the ultimate national issue, and both action and failing to act will hurt Republicans if it causes them to be seen as the party in control of Congress.

The other thing House Republicans must avoid, for the same reason, is to have to pass an immigration bill with Democratic votes. Not to put too fine a point on it, but the key Senate player, then, will be Ted Kennedy: DeLay will not want to take anything to the House floor that Kennedy will be able to support, much less claim credit for. That’s the Republican tipping point. If it’s the McCain-KENNEDY bill, the House won’t accept it.

The Democratic tipping point may come when – if – they realize that they don’t actually want to keep helping enact flawed bills, either. Richardson and others beginning to recognize that there is a politically legitimate concern about the utter failure of constant tinkering with our failed immigration system may finally be a sign that Democrats will get serious about a genuine alternative – not intended to pass as legislation (because the Republicans control the government) but to frame the issue.

But that won’t happen in this legislative round, and not ever with Senator Kennedy as the Democrats’ leader on these issues. Yet without that genuine Democratic alternative to the Republican guest worker model, something else will have to change for any significant immigration reform to pass. So far, nothing has.

You read it here first.

About The Author

Paul Donnelly writes about immigration and citizenship. He can be reached at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.