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Lead, Follow - Or Get Out Of The Way

by Paul Donnelly

Looking at the prospects for immigration reform this summer calls to mind that great American political thinker Yogi Berra: "It's deja vu all over again."

As a rule, when the House and Senate have passed even slightly different legislation to the same purpose, there is a conference committee that works out those differences. In modern times, there have been three truly important conferences on immigration bills: in 1986, 1990, and 1996. One would think the lessons of each of these three conferences would be applied to the current crisis.

But curiously, only the 1986 experience is cited much these days. The reason is obvious -- opponents of both amnesty and that term of art, 'earned legalization' like to remind people that the 1986 act promised a one-time-only forgiveness of immigration sins, that amnesty was sold as a measure never to be repeated (or needed) because enforcement of employer sanctions would essentially eliminate illegal immigration thereafter. Proponents of the pending Senate bill like to recall 1986 as some sort of triumph, however, an example of a bipartisan compromise rather than a bait-and-switch failure.

Why not recall the 1990 and 1996 conferences, as well? For the same reason people don't like to be reminded of being wallflowers at high school dances, or that can't miss IPO stock they bought just before the bubble burst.

But there are far more similarities than differences between all four sets of legislative circumstances, this year and in the three precedents. The legislative debates in both 1986 and 1996, and to a degree, 1990 were all prefigured by the recommendations of bipartisan blue ribbon Commission reports -- the Hesburgh Commission which urged Congress in 1981 to enact an amnesty, employer sanctions, and increases in legal immigration; and the Jordan Commission whose reports from 1994 through 1997 have largely set the table for the immigration debate, from assimilation (which it called, quaintly, "Americanization") to visa management.

But the political dynamics that threaten comprehensive immigration reform as well as Republican control of Congress this year, were all developed in response to those blue ribbon recommendations over a full generation ago. And yet the underlying political and policy forces have hardly changed at all -- and the common sense approach advocated by Hesburgh and Jordan continues to make sense, if Congress has the wit to see the way.

In 1981, the usual suspects of the immigration debate made their usual error: when Hesburgh recommended a three-fer (amnesty, sanctions, and legal immigration increases), the consensus among immigration lawyers, organized liberals, and (barely) organized libertarians was that they wanted two out of three, the amnesty and the legal immigration increases, but not the necessary third of the deal: no sanctions. So they dragged their feet as the political climate turned against them.

In the end, legal immigration increases were taken out of the bill, and the amnesty which was finally enacted in 1986 was less generous than the one recommended by the Hesburgh Commission, which was in fact legislatively available from 1982-1984. Likewise, the sanctions that were linked to that more generous amnesty were less harsh than the provisions finally enacted in 1986, along with a more restricted legalization.

Most legislative professionals today were not there for this ancient history twenty years ago, but many were there for the 1996 fiasco. Again, the dynamic was similar -- in 1994 and 1995, the Jordan Commission (full disclosure, I was its communications director) recommended a carefully balanced set of enforcement measures with a prioritization for legal immigration that focused on LPR spouses and minor children, the egregious 2A backlog.

Simply because this involved a set of choices -- more of this, and less of that, all of these, and none of those -- the organized immigration lobbies rose as one to oppose "comprehensive immigration reform." It is an enduring irony of the immigration debate that 'comprehensive immigration reform' is a term that changes meaning with every debate. In the early 1980s, it meant amnesty, employer sanctions and legal immigration increases -- and the usual suspects were against it, before they were for it.

In the mid-1990s, it meant testing worksite verification based on the Social Security Number, AND 150,000 more visas a year for spouses and kids of legal immigrants -- and the organized immigration lobbies were against that genuinely "comprehensive immigration reform".

Now it means a complicated system for 'earned legalization' (a term that polls better than 'amnesty' because it is literally unheard of, the political equivalent of 'none of the above'), and a guest worker program in which every "temporary" worker is eligible for a green card: so now 'comprehensive immigration reform' is something to favor again.

Yet the lesson of the 1996 debacle shouldn't be glossed over. Opponents of the Jordan Commission's recommendations focused their efforts on the proposition that the legal immigration system had no problems that actually needed to be fixed, that it's priorities were just fine the way they were, because it was illegal immigration that had to be addressed. There were high-fives exchanged in halls of Congress (I saw them) when legal immigration reform measures were defeated in the House and Senate in early 1996 -- although it took open opposition by Jordan Commission members Bruce Morrison and Bob Hill to finally remove Prop 187 from the House bill.

In the end, the reason so few legislative strategists who now support "comprehensive immigration reform" will publicly recall the 1996 experience is because so many were so obviously wrong. They miscalculated. The worst provisions of the 1996 reforms (the aggravated felony provision, the 3 and 20 year bars) were promoted in the conference committee not by pro-immigration activists favorite demon, then-House subcommittee chair Lamar Smith, but by the activists' own champion, the "Defender of the Melting Pot" himself, then-Senator Spencer Abraham, shortly defeated for re-election.

When a political coalition miscalculates, and cannot get its champions re-elected, re-evaluation is a good idea.

So it is the 1990 experience that warrants a second look. Unlike either 1986 or 1996, the 1990 Act's passage was a success -- a 40% increase in annual permanently legal immigration. Like 1986, much of what the 1990 Act did was based on the Hesburgh Commission (although, speaking as the former press secretary of its principal sponsor in the House, we gave 'em no credit at all). Unlike 1996, the House-Senate conference was not based on a fundamental political miscalculation.

But 2006 is different. The House-Senate differences are considerably wider than those between the respective bills in 1986, 1990, or in 1996.

Still, the mechanism is remarkably like the summer of 1990. That year, then-Senate chair Alan Simpson kept pointedly reminding then-House chair Bruce Morrison that Morrison was running for governor in Connecticut and would not be in Congress the following year, while Simpson was staying in the Senate -- and did not need a bill that bad. He could wait.

Which is the end-all and be-all question for immigration reform in the summer of 2006: is it smart to wait?

For whom?

Quietly -- and sometimes not so quietly, e.g., Frank Sharry's piece in -- many proponents of the Senate bill openly discuss how failure to pass the amnesty/guest worker deal will cost the Republican majority in the House. Then, some of these folks purr, the Senate bill will easily pass a Democratic House: the day of Jubilee, just over the horizon.

What rarely enters into this calculation is the district by district analysis that informs the actual House Republican strategy, which is why their position has hardened considerably. Remember -- Senators get votes by the millions, Representatives by the thousands -- and the Speaker of the House, by twos and threes.

That is why House Republican leader John Boehner (who voted against the Sensenbrenner bill when it passed the House last December) has come around to a leading role against the Senate package, and why the House conservative alternative, the Pence bill, contains no 'earned legalization'.

The Pence proposal, like the debate as a whole, tends to confuse illegal workers with new guest workers, and excludes legal immigration increases entirely. But it is clearly a hopeful sign -- all the more so when, as most understand, one recognizes that a House-Senate conference will likely have to write a bill from scratch.

In those circumstances, saying that those whom you need to pass legislation are acting like "a wounded beast" isn't necessarily the smartest and most far-sighted political strategy, particularly when they just might have an alternative approach to holding onto power.

That is why it is the 1990 experience, not 1986 or 1996, which might provide the best insights for sharp strategy this summer.

One characteristic that strikes observers about the Senate bill is how enormous and unwieldy it is. Political pros who read it come away with an accurate impression that it was largely driven by requests (demands?) from nearly every available immigration interest group perceived to have clout, in a transparent strategy of having a lot to bargain away this time, so as to keep... what, exactly?

In this sense, the 2006 strategy seems to have learned something from the 1996 failure. In 1996, a key Republican staffer explained to me why the final legislation was so harsh: "Once the legal immigration cuts were eliminated, we saw no need to compromise. And nobody asked us to."

But is that the right lesson?

In 1990, the key to enacting any bill at all was not to have lots to bargain away, although of course horsetrading is essential to legislating. The real key was recognizing that there is something peculiar about the organized immigration coalition, that it is incapable as a group of making choices.

Without choices, there will not be a bill -- and without a bill, immigration proponents are betting on a political outcome (Republican loss of the House, perhaps also the Senate) which is not only not a sure thing, aiming at it ensures that those with long memories will remember long, with long knives.

Throughout the summer of 1990, just as now in the summer of 2006, Congressional staff sounded out interest groups in what are called 'pre-conference' discussions. The purpose was to sort out just what was so important that the House should NOT concede it to the Senate, so that the Senate (particularly Alan Simpson and Ted Kennedy) would recognize that, if there was to be the largest increase in annual legal immigration since the 1965 Act itself, the Senate would have to accept... whatever the House was standing firm on.

Obviously (perhaps not so obviously, to those who advocate rather than decide), there quickly comes a time when it is necessary to make a concession to gain a concession, and then to stand by the deal and defend it to those who kibitz that perhaps this concession was too much and that one was too little. Yet failing to present that united front to someone -- like Simpson then, and perhaps BOTH Sensenbrenner and Spector now -- who is not bluffing, guarantees failure.

So what actually got us to the 1990 deal -- arguably, the most successful immigration negotiation of the past -generation - was refusing to constantly renegotiate with its supporters and the representative of its beneficiaries.

Consider the dynamics of this summer.

The original strategy, going back to the "Grand Bargain" between Mexico, the Catholic Conference of Bishops, and the National Immigration Forum announced during President Bush's first term (none of which actually moves any votes in the House Republican Caucus, which some noted at the time), was to pass an amnesty and a guest worker program together, with the President's wholehearted support. Opposition was supposed to just slink away, evaporating in the sunlight of such beneficence.

When some of us pointed out that the President never did support this 'plan', that in fact this wasn't a plan at all (since proponents never came clean about the numbers), and that in fact the President never did have a "plan" of his own at all, we were dismissed, rather than engaged. But to govern is to choose -- which advocates try NOT to do, after all, that's somebody else's problem.

By last summer [see "It's not going to happen": August 22, 2005], it had become clear that, just as happened leading up to the passage of IRCA in 1986, the tide of public sentiment was not running in favor of those who were preventing reforms that were getting ever less favorable.

Now the House is committed to "enforcement-only" or "enforcement-first" legislation, but this is at least partly a political smokescreen.

To be sure, there is considerable opposition to ANY immigration bill that provides additional permanent residency to anyone, but as the Jordan Commission pointed out, and as even (in their inimitably complex manner) proponents of McCain-Kennedy recognize, assimilation moves many from the immigration skeptic column into open support... for LEGAL immigration.

Which requires choices, and distinctions: legal is better than illegal, permanent is better than temporary.

And yet those choices and distinctions have not yet driven the legislative fight. Consider just two: the private sector role in worksite verification, and the LPR spouses and minor children whose MINIMUM wait has increased by two years and six months just since May.

It will be increasingly difficult for immigration advocates to ignore issues like that, if only because the Senate bill treats illegal aliens and new guest workers better than legal immigrants, a huge political liability in such an uncertain year.

The hearings that will commence immediately after Independence Day offer a major opportunity for both sides to consolidate their base of support, which is paradoxically necessary to have any flexibility at all.

And as the 1990 experience shows, for supporters of the Senate bill to be flexible, they will likely have to abandon any attempt to please those who cannot or will not make choices.

Bear in mind, neither Senate Majority Leader Frist nor his Republican Senators (most of which voted AGAINST the Senate bill) wants to lose either House over immigration reform.

Still, it's not all bleak for those who want genuinely comprehensive immigration reform (as opposed to the Senate version). The great weakness of the 'enforcement-only' crowd is political, if only folks would look.

In newspaper circles, there was a famous dispute in the letters column that coined the term "Nestoring". A gentleman named Nestor wrote a letter to the Washington Post in which he stated that since at the time the top highway speed limit was 55 mph, he always drove that speed in the far left lane, where the road was smoother, secure in the knowledge that anyone who sought to pass him in 'the passing lane' would have to be breaking the law. A veritable tidal wave of letters followed, as drivers alternately scoffed or praised Mr. Nestor for his stubborn insistence on the letter of the law -- or his dangerous fanaticism, take your pick.

It wasn't until a state trooper wrote in to explain that the reason why the left lane is 'the passing lane" is to ensure a safe flow of traffic by providing a safety valve for those going faster than others, regardless of the speed limit (which is often slower than 55 mph, after all). So Mr. Nestor was himself violating the law since his purpose in being in that lane was not to pass, that the controversy died down.

As no less than Thomas Jefferson pointed out, this is the oldest problem in politics: "... which Solon and Lycurgus answered differently. Do we mold our citizens to the law, or the law to our citizens?" It is particularly intriguing to see movement conservative support for 'enforcement first" from the likes of Reagan education Secretary Bill Bennett and onetime Labor Secretary nominee Linda Chavez, since the one (Bennett) prominently opposed worksite verification in 1994, and the other (Chavez) withdrew her nomination because she had employed someone unauthorized to work.

The lesson for immigration reform advocates is that enforcement-only, those who think enforcement excludes the private sector and those who confuse illegal aliens with guest workers, as well as those for whom legal immigration reform is an afterthought, are all a bit more like Mr. Nestor than they might think: following a rule that does not include all factors. They're basically in the way.

A deal is still possible, if both sides want one and are willing to work it out: but somebody is going to have to get out of the passing lane to make room.

As Yogi Berra himself said: "It's not over -- till it's over."

About The Author

Paul Donnelly writes about immigration and citizenship, and advises Lookout Services and

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