III. The “Autopsy”
By the time we advanced the Colorado Compact, reform at the federal level was long overdue. A quarter of a century had elapsed since Congress last addressed America’s immigration system. In 1986, Senator Alan Simpson (R-WY) and Congressman Romano Mazzoli (D-KY), sponsored landmark legislation aimed at dealing with illegal immigration. The law placed new burdens on employers to determine the immigration status of their workers, regulated migratory agricultural labor, and offered a pathway to citizenship (at the time called amnesty) for millions of workers who had entered the country before 1982. When President Ronald Reagan signed the bill, he recognized its significance, saying, “Future generations of Americans will be thankful for our efforts to humanely regain control of our borders and thereby preserve the value of one of the most sacred possessions of our people, American citizenship.” The bill was the first of its kind but left important work undone. Its main purpose was to deal with undocumented immigrants. It did little to bring up to date the other pathways to citizenship, especially our system of quotas and visas, which was better designed for the flood of refugees from Europe after World War II than it was for America in the era of Carter and Reagan.
Four years later, in 1990, Senator Ted Kennedy (D-MA) picked up where Simpson-Mazzoli left off. He led an effort to reform how workers, students, families, and refugees gained admission to the United States, some on a temporary basis and others en route to naturalized citizenship. The provisions of his bill included an increase in the cap on the total number of immigrants per year from 270,000 to 700,000; new visa categories that specified priorities for education, job skills, family members, and refugees; and funding for one thousand additional Border Patrol agents.4 Like Simpson-Mazzoli, Kennedy’s bill had bipartisan support, including backing from President George H. W. Bush. Michael Boskin, who chaired the President’s Council of Economic Advisers, went on the record for the administration:
Numerous studies suggest that the long-run benefits of immigration greatly exceed any short-run costs. With projections of a rising demand for skilled workers in coming years, the nation can achieve even greater benefits from immigration by augmenting the traditional emphasis on family reunification with policies designed to increase the number of skilled immigrants.
George H. W. Bush signed the Kennedy bill into law in 1990. But in the decades that followed, finding a coherent strategic approach to immigration reform eluded Congress. The sheer scope of the task would certainly have been daunting. To take in the entire policy landscape, writing immigration legislation meant addressing border security, verification of employee immigration status, demand for skilled and unskilled labor, visas, refugees, and the multiple possible pathways to citizenship.5 Consensus was also hampered by the competing interests involved. Organized labor—historically worried that guest-worker programs could undermine job security and working conditions—often found itself at odds with immigrant advocates. Hard lines were drawn between those who supported and those who opposed a pathway to citizenship for undocumented workers and their families. Unlikely allies on the left and right were wary of updating the methods for verifying citizenship status: they would be either too cumbersome or too intrusive. Employers and employees from relatively small labor markets—regional agriculture, hospitality and hotels, ski resorts and cruise ships—wanted appropriately parochial solutions tailored just for them.
Subsequent legislation either made narrow adjustments or failed to pass. Bills that did pass tinkered with special visa categories or set national standards for driver’s licenses. More ambitious bills proved polarizing and went down to defeat. After President Obama’s election in 2008, his administration and Congress were preoccupied with stabilizing the economy and passing the Affordable Care Act. They put off immigration reform.
Democrats took a political beating in 2010, especially in the House of Representatives, where, fueled in part by the insurgent Tea Party movement, Republicans added sixty-three seats and gained control of the chamber. In the Senate, Patty Murray, of Washington; Harry Reid, of Nevada; and I all survived the election and preserved the Senate’s Democratic majority. Many political observers credited our wins to the Latino vote. After the election, pressure mounted on Democrats to address immigration. Two years later, running for reelection himself, President Obama took executive action and instituted a policy called Deferred Action for Childhood Arrivals, or DACA. The action allowed “Dreamers,” children who through no fault of their own were brought illegally to the United States by their parents, to work and attend school without threat of deportation.6
During the 2012 presidential election, Republican candidates pushed and pulled one another into positions ever more hostile to illegal immigrants. At one uniformly shrill debate in Tampa, Florida, former Massachusetts governor Mitt Romney, the eventual nominee, managed to stand out by arguing that the Republican Party stood for “self-deportation” as a solution to illegal immigration.7 His hard-line stance proved understandably unpopular with Latino voters. President Obama went on to defeat Romney that November, in the process changing the map so that swing states such as New Mexico, Nevada, Colorado, and Virginia—all with significant Latino populations—became somewhat bluer.
Following the election, for a brief moment, the obvious and continuing demographic shift created pressure on both parties. Not only was the number of Latino voters steadily increasing, but their votes were making a difference. Whereas President George W. Bush had won 44 percent of the Latino vote in his 2004 victory over John Kerry, Mitt Romney had won only 27 percent. Republicans momentarily seemed to recognize the political harm they’d done themselves by harsh rhetoric. The day after the election, Rupert Murdoch tweeted: “Must have sweeping, generous immigration reform, make existing law-abiding Hispanics welcome. Most are hardworking family people.” The next day, Speaker John Boehner announced that he was “confident” that Congress could quickly pass comprehensive immigration legislation. On the same day, Sean Hannity, the influential Fox commentator, announced that his position had “evolved”; he now favored a “pathway to citizenship.” The Republican National Committee, led by Reince Priebus, eventually issued an election “autopsy” report. It made the point—indisputable and yet preposterously overdue—that “America looks different” and that the party was alienating voters of color. The report identified voters of color as the party’s “demographic partners” and stated that they deserved respect. It especially stressed the opportunity of winning back Latino voters:
If Hispanic Americans perceive that a GOP nominee or candidate does not want them in the United States (i.e., self-deportation), they will not pay attention to our next sentence. It does not matter what we say about education, jobs or the economy; if Hispanics think we do not want them here, they will close their ears to our policies.8
One thing was clear: ignoring the immigration issue had not solved any problems. By the time of the 2012 election, 11 million people without a path to legal status were living in the United States. Depending on the region, as much as 16 percent of our construction workforce and 18 percent of our hospitality workforce was undocumented. Our southern border was permeable. Some 40 percent of the undocumented population had overstayed lawful visas, but the government had no way to identify them. Employers relied on an error-prone system to hire, which led to pervasive violations of the law.
All in all, it seemed like a propitious time to act—the most propitious time in years.
IV. The Gang of Eight
Although both parties seemed ready, it was clear from the outset that any serious effort would have to begin in the Senate. In spite of his immediate post–Election Day ambitions, Speaker John Boehner would be tangled up in what Republicans called the Hastert Rule, named after Illinois representative and former Speaker of the House Dennis Hastert. That self-imposed gesture of Republican solidarity prohibits the Speaker from bringing legislation forward unless it has the support of a majority of the House Republican Conference. In the
113th Congress, when the Republicans had a majority of 234 seats, the rule required Speaker Boehner to have the support of 117 Republicans before a bill could be advanced to the floor for debate—even though a bill could pass with the support of as few as 16 Republicans if all 201 Democrats supported it. The Hastert Rule, by its nature, inhibits bipartisanship and vests enormous power in a minority of members of the House.9 Although there was Washington chatter about how, in the case of immigration legislation, Boehner might be willing to break that rule, it was also clear he could not get a majority of the House Republican Conference to initiate legislation providing a pathway to citizenship for 11 million undocumented individuals. From the beginning of his tenure as Speaker, Boehner was vulnerable to attack from within his caucus. For an immigration bill to pass the Republican House—without support from a majority of the conference and without costing Boehner his speakership—it needed a strong bipartisan endorsement from the Senate.
With these dynamics in mind, Senate Majority Leader Harry Reid drew the starting line shortly after the election. He asked Senator Chuck Schumer to assemble a bipartisan group of senators to begin work on a bill. Schumer, who had worked on immigration since the Simpson-Mazzoli days, brought on board two Democratic veterans: Bob Menendez, of New Jersey; and Dick Durbin, of Illinois. Latino groups across the country regarded Bob Menendez highly. They trusted him, and his presence among the Gang of Eight would do much to validate its work. For his part, Durbin had been the primary drafter of the Dream Act, legislation that would have granted provisional or permanent resident status to undocumented residents who had come to America with their parents and who had earned a high school diploma (or better) and had no criminal record. It didn’t pass and has been reintroduced frequently thereafter—and, shamefully, still has not become law. Melendez’s and Durbin’s support would carry weight. Schumer brought me on board to round out the Democratic side.10 The role of Latino voters in my reelection was certainly factored into his choice. So was the Colorado Compact.
On the Republican side, Lindsey Graham, of South Carolina, was Schumer’s first choice. Graham had worked on immigration reform since he was first elected to the Senate in 2002. In 2010, he and Schumer had developed a broad outline for reform that President Obama had endorsed (but that, again, went nowhere). He was living evidence that a Republican in a deeply red state could support immigration reform and win reelection.
Just as important was Senator John McCain. Like his friend from South Carolina, McCain had a track record on immigration reform that went back to the days of George W. Bush. His role in crafting the 2005 Secure America and Orderly Immigration Act, often called the McCain-Kennedy bill, made him the most senior Republican immigration leader. He was from Arizona—a red state but also a border state with a large Latino population. These crosscurrents posed difficult political challenges, but it was McCain’s nature to take them on directly.
Although he had less Senate experience than Graham or McCain, Senator Jeff Flake, also from Arizona, was a natural candidate for the Gang of Eight. Like Graham, he was a member of the Judiciary Committee and would bring another vote for that decisive hurdle. His understanding of immigration was also deeply personal. As a young man he had worked side by side with immigrants on his family farm. As a former executive director of the Goldwater Institute, he also brought sterling conservative credentials to the group.
The final question was who would represent the most conservative wing of the Senate, which had swelled in the wake of several Tea Party victories in 2010. The other seven members had agreed that one condition for joining the Gang of Eight was a commitment that citizenship—somehow—for the 11 million undocumented residents had to be a final part of any deal. To fill this role, Senator Durbin worked intently to encourage Florida’s Marco Rubio to sign on.
Rubio was a darling of the Tea Party, having defeated Florida governor Charlie Crist in the 2010 Senate Republican primary. Rubio had also worked on versions of the Dream Act. When Durbin approached Rubio, the junior senator had just as many confidants telling him not to join the group as telling him to join it. In the end, he decided that it was better to lead than to criticize from the sidelines.
Without great fanfare, Politico reported on the Gang of Eight in December 2012, the first time its existence became public knowledge. We kept up a ferocious schedule of meetings. Unlike many other congressional working groups I have participated in, we routinely started on time, often ran on for extra hours, and never canceled our work sessions. This may seem like a low bar—it is a low bar—but it was a pace unlike any other effort I have witnessed in the Senate.
We developed confidence in a collaborative way of doing business. Graham set an example. Early in negotiations, we gathered at the Capitol in Senator Reid’s spacious meeting room, with its long westerly view down the National Mall to the Washington Monument and Lincoln Memorial. Laying out one of the major issues before the group, someone explained that we needed a pathway to “legalization” for the undocumented people living in America. Graham reset the expectations for everyone in the room. “No,” he said. “You mean citizenship.” In so saying, he established the right aspirational tenor for our work.
The Gang of Eight’s set of working principles, as they ultimately emerged, made a point of taking on directly the complexity of the issues that needed to be addressed:
• Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent on securing our borders and tracking whether immigrants have left the country when required.
• Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families.
• Create an effective employment-verification system that will prevent identity theft and end the hiring of future unauthorized workers.
• Establish an improved process for admitting future workers to serve our nation’s workforce needs while simultaneously protecting all workers.
The antithesis of soaring rhetoric, the principles avoided both fighting words and pacifying euphemisms. They struck a balance, calling for both a secure border and a fair path to citizenship. They recognized the rights of workers and the need for a strong business economy. Ours was a rare legislative effort to push all the deal points to the middle of the table to make it more likely to achieve a good result. When I set these principles alongside the Colorado Compact, I was struck by their basic consistency.
On Sunday, January 27, 2013, we brought the principles forward to a national audience. McCain and Menendez appeared on This Week with George Stephanopoulos. Schumer gave interviews to New York reporters. Rubio made himself available. Two days later, President Obama gave his support at a rally at a high school in Las Vegas. Although there remained skepticism that we could actually go on to write and pass a bill, the principles were greeted warmly by both parties. Intense partisan criticism was limited to the usual Tea Party legislators in the House. Ultimately the principles were embodied in an 844-page bill unveiled in April 2013.
Writing the bill was more balancing act than compromise. We built it out of three interlocking reforms: securing the border, charting a path to citizenship for undocumented people, and defining a set of assurances, or “triggers,” to determine whether the border was secure. Our principles made activating the path to citizenship contingent on securing the border. There was both policy and political logic in this. We knew that unless we secured the border, we would never stem future flows of unauthorized immigration. Although this was good policy on its own, it was also a particular sore point with Republican members of the Gang, who believed that Reagan’s 1986 reform had granted “amnesty” but failed to stem unlawful immigration. The Gang held together by respecting both rationales. All of us knew that creating a path to citizenship, however fair and rigorous, depended on public confidence that we had addressed the underlying problem of illegal immigration.
By the
end, the bill featured a bipartisan commitment to extensive security resources, including: more than 19,000 additional Border Patrol agents stationed along the southern border, more than doubling the current force; complete electronic surveillance of the entire border; 350 additional miles of fencing; and full implementation of an electronic visa entry/exit system, called E-verify, which would make it virtually impossible to work in the United States illegally. This amounted to a $46.3 billion investment in border security, far more than the Trump administration has demanded for its “beautiful wall.”
As we strengthened provisions for border security, we began creating the pathway to citizenship for undocumented immigrants. We simplified the green card system, replacing our outdated visa mechanism with its quotas, caps, and complicated categories. In its place, immigrants would earn a green card through a new merit-based system open to any foreigner. Those with the most points (allocated by education level, English-language level, family ties, and work experience) in any given year would become permanent residents. The bill also provided that any persons living in the United States without documentation could apply for provisional status. After ten years of provisional status—and after paying a fine, while maintaining employment and a clean criminal record—they could apply for a green card. Three years after that, they could apply for citizenship. There were special provisions that sped up the process for the Dreamers and agricultural workers.11
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