State Of The Union: The Prospects for Comprehensive Immigration Reform, Guest Article by Gary Endelman

Now back in control of Congress, Democrats pledge a revival of comprehensive immigration reform (CIR).  Should we believe them? Now, that is a question to ponder. If they mean what they say, why did Speaker Nancy Pelosi (D-CA) leave CIR out of the "must pass" agenda that the House Democrats pushed through in their first 100 hours? If they are kidding us, why did Senate Majority Leader Harry Reid of Nevada lay down a marker by introducing S. 9 in the first days of the young 110^th Congress? What will the GOP do following their fall from power? Will they embrace CIR to show they are not anti- Latino or embrace enforcement to show they are tough on border security? Will the Democrats want to give President Bush a domestic achievement in the run-up to the 2008 elections or will they hold back out of a desire to weaken the White House at all costs? Beyond all that, what message about immigration, if any, did the 2006 election deliver on immigration?  Lots of questions; let's look for a few answers.

Let's read the mid-term tea leaves first. The 2006 elections delivered a mixed message on immigration. On the plus side, several high-profile enforcement-only Republicans like Congressman J.D. Hayworth and candidate Randy Graf of Arizona were defeated, along with Henry Bonilla's loss of his House seat in Texas to Democratic challenger Ciro Rodriguez who attacked the incumbent's endorsement of a wall along the Texas/Mexican border. Exit polls in 2006 showed Democrats gaining 11% from Hispanic voters compared to 2004 totals according to the Pew Hispanic Center ; other surveys were even more disturbing for the GOP revealing a drop of 15% from 44% to 29%.  John Conyers, the liberal firebrand from Detroit has replaced R. James Sensenbrenner, the die-hard Wisconsin conservative, as Chair of the House Judiciary Committee. House Republicans took out their anger on the unfortunate Mr. Sensenbrenner, architect of their "get tough" strategy on immigration, by refusing to grant the Wisconsin Republican any slot on a major House committee for the next legislative session. Senator Mal Martinez of Florida , a stalwart champion of CIR, has become the Republican National Chairman. Rep. Zoe Lofgren, a Democrat from Silicon Valley and former immigration lawyer, now heads up the House Immigration Sub-committee with Senator Edward Kennedy of Massachusetts wielding the gavel over the Senate Immigration Sub-Committee.  If the voting record of Democrats in the last Congress is any indication of how the 110^th Congress might behave, CIR might happen. Some 82 % of House Democrats opposed the draconian GOP approach in 2006 while 90% of Senate Democrats backed the McCain-Kennedy version of CIR, a bill deemed so heinous by the House GOP leadership that it refused to even go to conference with the Senate.  So, on one hand, things look good, right?

Trouble is, there is another way to look at the election that is significantly less encouraging. Several pro-immigration Republicans lost in 2006, such as former Senators Lincoln Chafee in Rhode Island and Mike DeWine in Ohio , not to mention Representative Jim Leach in Iowa . Their defeat will make it harder for pro-immigration Democrats to find allies across the aisle.

Rep. Jeff Flake, of Arizona , the most outspoken immigration advocate among all House Republicans, save possibly for Chris Cannon of Utah , was kept off the House Judiciary Committee. House Republicans filled the ranking minority seat on the Immigration Sub-committee with Steve King of Indiana who, last year, drew headlines when he suggested that electrified fences should be erected along the border with Mexico on the theory that they had proved successful in containing livestock. In Arizona , the same state that saw Hayworth and Graf go down in flames, a state with a large Hispanic population, some 17% of all voters, 48% of these Hispanic voters backed a referendum making English the state's official language. At a recent gathering of evangelical conservatives in Amelia Island, South Carolina, Senator Sam Brownback (R-KS) had to defend his embrace of guest worker reform against stout conservative criticism while Congressman Duncan Hunter, the first House Republican since James Garfield to seek his party's presidential nod, used this same gathering to portray himself as an unvarnished foe of any attempt to provide the undocumented with a path towards citizenship. Senator John McCain has won himself few friends among the same Republican activists that he is otherwise moving heaven and earth to attract by his high profile ownership of CIR. So, while some GOP hardliners may no longer be in Congress, and while the lure of all out nativism as a political talisman has undoubtedly lost much of its allure, this does not mean that the Republican Party has found religion on CIR.  While the business wing of the party wants access to more foreign labor, social conservatives worry about social cohesion and a disintegration of traditional values. Will Main Street or Wall Street define the GOP posture on immigration? That answer will tell us volumes. 

Surely, if CIR advocates cannot count on the Republicans, they can rely on the Democrats? Well, maybe.  It is true that Senator Reid, like President Bush, has identified CIR as of his top legislative priorities. Senator Reid introduced S.9 only 3 days after Congress convened, to reflect the sense of the Congress that the time for CIR had come. Senator Reid is not alone. Just recently, a bipartisan coalition  lead by Senator Larry Craig(R-Utah), Senator Kennedy, Senator Diane Feinstein (D-CA), Rep Chris Cannon (R-Utah) and Rep. Howard Berman (D- CA) reintroduced the so-called AgJobs Bill, a key component of last year's debate. AgJobs would provide 1.5 million unauthorized farm workers the opportunity to obtain eventual green card status if they met certain tests.  The Alliance for Immigration Reform 2007, consisting of business, labor, ethnic, religious, conservative and pro-immigrant groups, announced plans in late January 2007 to fight hard for CIR passage. So, we can all kick back and exhale. Right?  Well, maybe not just yet.

Many of the newly-minted Democratic lawmakers might not be so in love with CIR either. This is particularly true with the so-called "Blue Dog" Democrats in the Upper South and Mid-West, many of whom like Heath Schuler of Tennessee and Nancy Boyda of Kansas , who ran to the right of their GOP opponents on immigration, condemning a guest worker program as "amnesty" and urging even tougher border enforcement measures. Brad Ellsworth, an Indiana sheriff who is part of the Democratic freshman class in the House, protested the USCIS policy of catch and release when his deputies arrested an illegal alien in Vanderburgh County . Another Democratic rookie, Nick Lampson of suburban Houston , who replaced former House Majority Leader Tom Delay, opposes any guest worker initiative now as a replay of what Lampson regards as the failed 1986 compromise.  Nor was such Democratic skepticism confined to the House. In the Senate, for example, Claire McCaskill, a victorious insurgent who convinced the voters of Missouri to throw out first-term Republican incumbent Jim Talent, ran a campaign that said yes to a border fence, no to legalization for the undocumented while urging stiffer fines for employers who hired them.  Now that they are in charge, the Democrats may find themselves every bit as fractured over immigration as the Republicans were last time around.  Anxious not to endanger her slim majority and wanting above all to consolidate and expand it after 2008, Speaker Pelosi and Majority Leader Reid are going to have to attract the increasingly important Hispanic vote while still appearing to honor continued public concern over terrorism and internal security. That will not be easy. If the Democrats want to consolidate their gains by picking off the low-hanging fruit, immigration may have to wait a while. House Democrats are unlikely to support any immigration bill that Republicans can use successfully against them in two years. It may not have been an accident that any reference to CIR was conspicuously absent from Senator James Webb (D_VA)'s Democratic response to the President's State of the Union .  His heart-felt invocation of economic populism had a distinctly "Made in America " ring to it. "It's not without its challenges for sure," Jeanne Butterfield, executive director of the American Immigration Lawyers' Association, recently told the Washington Post. "You've got opposition in both parties. You still have restrictionists in the Republican Party. You have Democrats who've been reluctant to move on any kind of worker program."

In the last Congress, then Speaker Dennis Hastert (R-IL) refused to allow any vote on an immigration bill that did not have the support of the Republican caucus, the so-called "majority of the majority" approach. After the Senate passed the Kennedy-McCain CIR bill, Hastert could have pushed it through the House by relying on most Democrats and some Republicans. He chose not to do so. If Speaker Pelosi adopts this same tactic, then we will know CIR will have to wait until next time. It is unlikely that she will want to buck the continued hostility of her labor union allies to any guest worker initiative that some, but not all, of organized labor views as subversive of American wages. Much as social conservatives battle corporate interests for supremacy within the GOP, the old economy unionists in the AFL-CIO compete with the new economy Service Employees International Union, who represents health care workers, public employees and hotel/restaurant laborers, for primacy within the Democratic Party. One big reason why the Democratic Party as a whole is split on immigration is the fact that their trade union allies, who provide so much of the money and vital political ground troops, cannot decide whether to support or oppose CIR. In defiance of the AFL_CIO, from which they seceded, the SEIU unions recently sent a strong letter urging the prompt and total adoption of CIR to Senator Edward Kennedy.  This split over immigration within the house of labor mirrors a much larger and deeper split over the nature of unionism within American society.  Will Speaker Pelosi and Majority Leader Reid be more concerned over placating AFL-CIO opposition to CIR or echoing SEIU support of it?  On the Democratic side, that is the drama to watch.

The general public seems as confused as Congress over what is going to happen. CBS News conducted a poll in early January 2007 to ask Americans if they thought that CIR would pass now that the Democrats had regained control of Congress. The poll revealed that 42% thought it would, 42% thought it would not, while the rest were not sure! So much depends on issues that have nothing to do with immigration. If the Democratic Congressional leadership goes after Bush hammer and tongs over Iraq, if Chairman Conyers blankets the White House with subpoenas, and the partisan warfare erases the last lingering semblance of political civility, it is hard to see how much of anything will happen. Remember that any immigration legislation will require a supermajority of 60 votes to get by in the Senate.  The partisan combatants may decide they have more important fish to fry. The Democratic Left may elect to oppose Bush on immigration because it wants to inflict maximum political humiliation and cares more about that than it does about CIR, particularly if the political realities circumscribe what can be achieved.  This will most certainly be the case.

The Democratic Left believes that its' time has come and any compromise with President Bush  now over a compromise immigration bill that does not provide for complete and immediate green card status for the undocumented is not worth the bother. Better wait, throw out the rascals in two years and come back later to get what they really want. This will be a tragic political mistake. It is vital that the Democrats pass CIR if only to show that they can actually do something, that they can once again become the party of governance, that pragmatic results trump ideological purity. To hold out for the whole CIR loaf now, and spurn anything less, will be the most pyrrhic of victories, proving to all but those Americans who would vote for them anyway, that the Democratic Party cannot be trusted with the levers of power. That will not be the worst of it. Such political recklessness will break faith with the immigrant community as a whole. No longer will they and their children reward the Democratic Party with their loyalty and their votes. No longer will they provide the lever that the Democratic Party can use to flip Florida and other battleground states from Blue to Red. If the Democratic Left goes all out for Bush's blood now, knowing that CIR will go down with the President, then the immigrant community will know in its bones that there is no place for it on the Democratic bus; indeed, they will have been thrown under the bus.  Good government and smart politics dictate a far different course: Get something now and establish a foundation to claim a larger and sweeter triumph in 2009.  As a life-long Democrat, I turn round to my party and urge this wisdom upon them for our sake, our clients' sake and for the sake of our country. As Ralph Waldo Emerson told his American scholar of long ago, in words that seem no less relevant today, "come my friends, it is not too late to seek a newer world."

Endnotes

^[1] Darryl Fears and Spencer Hsu, "Democrats May Proceed with Caution on Immigration," Washington Post (Nov. 13, 2006). http://www.washingtonpost.com/wp-dyn/content/article/2006/11/12/AR2006111200909.html.

^[2] Text of January 17, 2007, Letter to Senator Kennedy from SEIU Leaders Andrew Stern, Anna Burger and Eliseo Medina can be found at http://www.seiu.org/media/pressreleases.cfm?pr_id=1366 

(c) Copyright 2007 by Gary Endelman. All rights reserved.

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

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