Throughout the drafting process, the Gang committed to a bill that could win support from a bipartisan majority in both the Senate Judiciary Committee and the Senate as a whole. Along the way, staff and senators kept the press and Beltway influence groups apprised of progress. This transparency was not some sort of special privilege. It served as a feedback loop that helped us work out the bugs and improve the bill. It also shaped how we would present the bill. As we described the bill before growing audiences, we would face inevitable mischaracterization by opponents. While working with so many prospective audiences, we drafted and revised detailed summaries and talking points—storytelling tools that helped focus the debate on the bill itself rather than on the demagogic fictions spun by talk radio hosts and other nativist zealots.12
In April, the Gang of Eight held a press conference and introduced the proposed Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. The bill’s supporters formed a broad base, including many who could agree on little else: for instance, the US Chamber of Commerce, a newly formed coalition of evangelical leaders, and the AFL-CIO. Karl Rove appeared on weekend political shows, including Fox News Sunday, to rally support for it.13 Unwavering Republicans like the antitax zealot Grover Norquist stood side by side with equally unwavering liberals like AFL-CIO president Richard Trumka on the podium, joined by business, faith, and police and community leaders.
Inevitably, opposition began to mobilize. On the Sunday program This Week, Senator Jeff Sessions, of Alabama, trotted out two arguments successfully used against previous immigration bills: it would “give amnesty now” and “bring in a massive supply of low-wage workers.” Both arguments were demonstrably false. On that same show, conservative commentator George Will took Sessions on, observing that “conservatism begins with facing facts.” He went on to list some of them.
The facts are that of the 11 million people who are here illegally, two-thirds have been a decade or more, 30 percent, fifteen years or more. They’re woven into our society. They’re not leaving. And the American people would not tolerate the police measures necessary to extract them from our community.
Marco Rubio faced perhaps the greatest political challenge as the Tea Party and its affiliates attacked the bill. Rubio defended himself by noting that the bill gave no special privileges to the undocumented—indeed, they would be required to go to “the back of the line.” It was rough duty for Rubio, and no amount of gratitude from Democrats could be comfort enough.
When we introduced our bill, there were fifty-four Democrats and forty-six Republicans in the Senate. We could count on the four Republicans in the Gang to vote yes, but not all Democrats immediately supported the legislation. To reach the sixty votes required to pass a bill in the Senate, we had to increase the yes votes among Republicans without losing support from Democrats. One way to do that was with amendments. Today’s Senate is so frozen that months can drag by without the consideration of a single amendment on the Senate floor. Major legislation like the Gang of Eight bill presented a rare opportunity for a proper legislative process. We welcomed this opportunity, believing that no first take, even our own, couldn’t benefit from revision. Patching holes left over from the drafting process would also introduce fresh thinking across the country.
The amendment process is not without risks. Congressional history has more than its share of bipartisan legislation that would float as drafted, only to sink under the weight of divisive amendments—to defund Planned Parenthood or ban semiautomatic weapons, for instance. The Gang of Eight anticipated that we would see scores of amendments, some with merit and others designed to be toxic. We would have to sort them out and deal with them quickly.
As a general matter, we understood that if some senators had concerns about substantive policy, we might be able to address them to gain a yes vote (while not losing other senators). We knew it was highly unlikely that we could gain the vote of senators who believed supporting the bill was catastrophic for them politically. But we also thought there was room to win some votes by addressing specific issues for certain senators—for instance, by further strengthening border security and enforcement to give conservative senators a win to point to. This was the most likely end point of a settlement. At the same time, we had to defend our measure from amendments intended to paralyze it by breaking its bipartisan backbone.14
I have left out many steps in the legislative process. No sane reader would have the patience for all the arduous negotiation and procedural minutiae. The bottom line is this: on June 27, fourteen Republican senators joined all fifty-four Democrats to pass the Gang of Eight’s bill by a vote of 68–32. It was a resounding bipartisan victory. It was also the last vote the bill would face.
V. The Worm Turns
In hindsight, we wrongly assumed that a strong bipartisan vote in the Senate would give Speaker Boehner the momentum to advance the bill despite opposition within his caucus. As it happened, the Senate bill never saw the light of markup or debate, let alone a vote, in the House. Had Speaker Boehner allowed a vote, the Gang of Eight bill would have passed with unanimous support from Democrats and support from as much as a third of the House Republican Conference. But after meeting with the conference to discuss its position on immigration, Boehner said:
I also suggested to our members today that any immigration reform bill that is going to go into law ought to have a majority of both parties’ support if we’re really serious about making that happen, and so I don’t see any way of bringing an immigration bill to the floor that doesn’t have a majority support of Republicans.
Two factors forced the Speaker into this position. The first was the threat by a small number of members, most affiliated with the Tea Party movement, to challenge him for the speakership, a threat that had existed since the fiscal fights of 2011. House members like Steve King, of Iowa; Tim Huelskamp, of Kansas; Raúl Labrador, of Idaho; and Kevin McCarthy, of California, were outspoken opponents of immigration reform and had participated in previous efforts to challenge the Speaker. They used the Hastert Rule like a shiv, killing the bill in the closed room of the House Republican Conference. The second factor was the threat of a primary challenge that was hanging over the heads of many members of the House Republican caucus—a challenge from the right, engineered by Tea Party activists and their big-money allies. Every House Republican would recognize the reality of this threat when, in June 2014, Representative Eric Cantor suffered an astounding loss in a primary fight largely because he had been perceived as soft on immigration.15 It became obvious that the most extreme minority faction of the Republican Party was preventing the House from even voting on legislation that most Americans supported.
My colleagues and I have puzzled over when we knew that the Gang of Eight bill was done for good. Certainly by the time of Eric Cantor’s defeat, we knew it was all over: the fear among Republicans that they could be taken down by a challenger—and the fear on the part of the Speaker that he could be taken down by his conference—was real and unassuageable. But there had been other troubling signs. The initial failure of HealthCare.gov—the public face of President Obama’s signature Affordable Care Act—combined with Ted Cruz’s cynical and narcissistic government shutdown had further sapped the public’s faith in government.16 The circumstances made it harder to convince people that the United States could competently perform a difficult task, like securing its borders or developing a working biometric visa-monitoring program.
Some say the outcome was evident in June 2013 if one considered the map of House districts. There was too much red in the House, they contended, and it was filled with districts that were carefully gerrymandered not only to secure victory but also to deter diversity of any kind. The representatives elected from these districts could plausibly argue that their constituents had no interest in reforming the immigration system.
By choosing not to act, House Republicans allowed problems the bill would have solved to persist. This is not speculation. Eleven millio
n undocumented people continue to live and work in the shadows. Our northern and southern borders are still not secure. Our visa system remains an operation from deep in the last century.17 I believe that some of the bill’s most ardent detractors actually like it this way: they can keep the pot boiling, nurturing the nativist grievances that elected them.
Certainly the results of the 2016 election cast critical light on the Republican National Committee’s idea that to prevail in elections, Republicans needed to improve their appeal to Hispanic voters. Donald Trump clearly had not read the RNC election autopsy when he announced his presidential campaign. From day one, he defined himself in opposition to its advice. Here’s what he said when he descended the escalator at Trump Tower and announced his candidacy:
When Mexico sends its people, they’re not sending their best … They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people. But I speak to border guards and they tell us what we’re getting. And it only makes common sense. It only makes common sense. They’re sending us not the right people. It’s coming from more than Mexico. It’s coming from all over South and Latin America, and it’s coming probably—probably—from the Middle East. But we don’t know. Because we have no protection and we have no competence, we don’t know what’s happening. And it’s got to stop and it’s got to stop fast … I would build a great wall, and nobody builds walls better than me, believe me, and I’ll build them very inexpensively, I will build a great, great wall on our southern border. And I will have Mexico pay for that wall.
At the time, Trump’s immigration rhetoric seemed as preposterous as it was offensive. His election proved conclusively that the power of nativism in American politics was not a thing of the past. The bigotry and hatred that fueled the Know-Nothings in the 1850s, the Chinese Exclusion Act later that century, and Japanese internment camps in the 1940s—not to mention the literacy tests and English-only ballot initiatives that came back time and again in the twentieth century—also lived in his campaign. We will never know how many Trump supporters truly agreed with him, but enough stomached his rhetoric to deliver him a victory in the Electoral College.
As president, Donald Trump has kept nurturing this ugly nativism. When Representative Paul Ryan took over from Speaker John Boehner, he seemed content to leave immigration reform unmentioned and unaddressed.18 President Trump kept the issue alive. He ordered a series of bans on Muslims coming into the country, dashed the hopes of the Dreamers, kept insisting that the government build a “big, beautiful wall,” and continued to indulge his habit of hateful name-calling, ethnic and racial stereotyping, and disregard for the truth.19
Evidently, the president enjoys the charge he gets from a crowd when he indulges in this ugliness. In May 2018, the Washington Post reported:
The night before Trump delivered his first speech to Congress in February 2017, he huddled with senior adviser Jared Kushner and [Stephen] Miller in the Oval Office to talk immigration. The president reluctantly agreed with suggestions that he strike a gentler tone on immigration in the speech.
Trump reminded them the crowds loved his rhetoric on immigrants along the campaign trail. Acting as if he were at a rally, he recited a few made-up Hispanic names and described potential crimes they could have committed, such as rape or murder. Then, he said, the crowds would roar when the criminals were thrown out of the country—as they did when he highlighted crimes by illegal immigrants at his rallies, according to a person present for the exchange and another briefed on it later. Miller and Kushner laughed.
The president’s approach drove a wedge deeper into the Republican Party. When Speaker Ryan announced that he would not seek reelection, he also promised that he would “run through the tape,” finishing his last term as Speaker of the House.20 But by the summer of 2018, Ryan’s finishing sprint was being tripped up by both moderates and extremists in his party. On one side, members led by Jeff Denham, of California, and Carlos Curbelo, of Florida, began organizing to demand a vote on immigration reform. Whether it passed or not, they would be able to go on the record before Election Day as having supported something better tempered than the president’s angriest outbursts. On the other side, sensing that this upstart movement could be a threat to conservative hegemony over immigration policy, Kevin McCarthy and other members of the House Freedom Caucus leveled a threat: if Ryan brought these bills to the floor of the House, they might well challenge him as Speaker even before he left office. The closer Election Day drew, the hotter the rhetoric became. Exhibit A was the fearmongering by President Trump, his allies in Congress, and the right-wing media over the infamous “caravan” of asylum seekers from Central America trying to make its way to the United States—an “invasion,” the president falsely maintained, as he made a wasteful show of deploying troops to the border.21 Ultimately, the president’s campaign organization ran an issue ad in targeted districts that was so ugly that every outlet, including Fox News, decided to take it off the air.22
There are no rewrites of history, but it is hard not to wonder how things would have turned out had the House taken up immigration reform in 2013—or anytime afterward, for that matter. If reform had reached the floor, there are any number of ways a coalition of 218 votes could have been cobbled together. There are plenty of Republicans who would have benefited if they supported the bill or at least not been harmed, despite threats of tough primary opposition. And even if a handful of Democrats could not support the bill, it is easy to imagine that 185 others would. My guess is that the Gang of Eight legislation would have passed. Instead, a minority of the majority strangled it with the Hastert Rule.
VI. “Yearning to Breathe Free”
And where are we now? No single political issue preoccupied the 115th Congress and the Trump Administration more than immigration—not the Affordable Care Act (also known as Obamacare, which Trump had promised to repeal), not the opioid crisis, not climate change, not wage stagnation, not taxes, not even the budget. In December, as the lame-duck Congress tried to pass a budget that lacked funding for the president’s wall on the southern border, the usual nativist zealots, including Ann Coulter, Sean Hannity, and Rush Limbaugh, turned up the heat on President Trump.23 Heeding their call, President Trump forced a record-breaking thirty-five-day shutdown of the federal government in order to jam a $5.7 billion appropriation for a border wall down the throat of a lame-duck Congress controlled in both houses by his own party. (In his campaign, as most Americans remember, Trump had promised that Mexico, not the US taxpayer, would pay for such a wall.) By failing to deliver for the president, Speaker Ryan and Majority Leader McConnell guaranteed that immigration, which had dogged the 115th Congress, would continue its domination into the 116th. The folly of Trump’s medieval approach to border security aside, the meanness of spirit demonstrated by the administration and its allies is stomach-turning and violates America’s most honorable traditions while recalling our worst. In the end, Trump capitulated and allowed the government to reopen without funding for a wall. In the waning hours of the shutdown the Senate floor staff had begun referring to the chamber as a “Hope Free Zone.”
During our work together on the Gang of Eight, Lindsey Graham would sometimes say, “America is an idea.” I would take that thought further. The idea of America changes over time. It is not stuck in the eighteenth century like a bee trapped in amber. It is our duty as citizens to tend to this idea and make sure it grows into something we would wish for our children and our neighbors’ children. In this sense, all of us play a role as founders.
The original founders imagined a republic, not a despotism. According to their idea of America, we were not dependent on a tyrant or boss or party strongman to resolve our differences. We were a free people and had to resolve our differences ourselves. As we settled our differences along the way, we had to recommit ourselves to start the process again as free people engaged i
n the work of the republic. Central to the founders’ idea was legislative effectiveness.24 Citizens would elect representatives who would assemble to make and remake law. The founders did not expect elected officials to do nothing until they received exactly what they wanted. They expected elected officials to compromise. In my time in office, opportunities to participate in effective legislative debates have been few and far between. The Gang of Eight process was a rare exception.
Effective legislating involves some basic hard work. Assembling good thinkers, hearing from experts and advocates, choosing among imperfect options, grinding out the language of the bill—this is where it starts. Holding markups, making revisions, building coalitions, handling amendments—this is how legislation comes across the finish line. This is the stuff of high school government classes. As citizens, we think this is what should take place in every city council meeting room, in every state legislative chamber, and certainly in the halls of Congress. In Washington, we rarely meet this basic expectation.
Each member of the Gang of Eight shared a basic understanding of what makes American citizenship attractive to those who want to become Americans. There are countless ways to picture it. Think of the parents who want their children to enjoy opportunities unimaginable in their home country. Think of the student who wants to learn at one of our great universities and intends to call America home. Think of someone displaced by war or terror or hatred—and the sanctuary he or she seeks. Think of anyone who, in Emma Lazarus’s great words, is “yearning to breathe free.” We worked together because we understood that immigration has been a defining characteristic of American history and will help define our future. We knew that no good comes from hoarding citizenship and that we should grant it in a manner that respects and upholds the rule of law. When we take the opposite view, we act against our traditions. As a nation, we will never flourish if we choose to depend on a permanent underclass, deprived of some or all of the freedoms others enjoy. Free people do not remain free by denying freedom to others.
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