The Restless Wave

by John McCain

  Things were different in the Senate. The rules of the place require bipartisan negotiation and agreement to pass most major bills. Ted and I thought we had hammered out a compromise that could attract twenty or more Republican votes and most of his caucus. And we had. Our bill added ample additional resources for border security, including hundreds of miles of new fencing, and new restrictions on employers who hired undocumented workers. It created a new guest worker program that would allow workers in the country for three years, with the possibility of one three-year extension, if they had standing employment offers for jobs that had not been filled after advertising their availability. Contrary to the complaints of immigration restrictionists and some labor leaders, there are a good many businesses all over this country that cannot get American citizens to take the jobs they offer, and not, as is often alleged, because the pay is so low. I once caught grief from talk radio blowhards for saying, “You can’t get Americans to pick lettuce in Yuma in the summer if you paid them fifty dollars an hour.” But it’s the truth, whether the anti-immigration crowd wants to hear it or not.

  Finally, the bill dealt practically with unauthorized immigrants already in the country, if somewhat convolutedly due to the political balancing required to get support from liberals and conservatives, by legalizing the status of all but the most recent arrivals. We proposed a three-tier system. If someone had been here for two years or less, they would be deported if found. Those here for two to five years would have to return to a border entry point and apply for a temporary guest worker visa. As long as they passed a criminal background check, they would be allowed to stay. Those who had been living in the country for more than five years would be offered a path to citizenship. After an eleven-year probationary period, in which they would have to come out of hiding, pay a penalty and any back taxes they might owe, submit to criminal background checks, and learn English, they could become citizens of the country they were already positively contributing to in numerous ways. We would make two more attempts at comprehensive reform after this one. But this remains the general outline of a practical, workable, effective, fair, and decent solution to the problem of illegal immigration.

  Debate on the bill began in May. Every day the bill was pending, the leading co-sponsors met with Ted and me in a room off the Senate floor before we went into session. We shared intelligence and plotted strategies for the amendments that would be offered that day. We had an agreement that if either the Republicans or Democrats in the room considered an amendment a “poison pill,” a deal breaker in other words, all would vote against it. A freshman senator who frequently joined our morning conference, an eloquent and ambitious addition to the Senate, declined to join our pact.

  I had been eager to work with Barack Obama. There had been so much buzz about him the moment he arrived. The Democratic leader, Harry Reid, had already given him significant roles to play in some of the more politically charged debates his first year in the Senate. Like everybody else, I’d been impressed by his 2004 convention speech in Boston. Here’s a guy, I thought, who talks about bridging partisan divides, who can really move people with a speech, and he’s coming to an institution where we make a lot of them. Most of us, no matter how modest our talent for oratory, have tried more than once to convince our colleagues we are a Cicero. And most of us recognize the real thing when we see it. Barack Obama was the real deal when it came to public speaking, as the world would soon discover. I wanted to work with him, to enlist his voice in causes I cared about.

  We did briefly work together early in his first Congress. I was trying to put together a bipartisan coalition for a series of ethics reform proposals, and approached him to join us, which he did. We got along perfectly well until Harry got his hooks into him, getting him to promote some ethics changes Harry wanted because they would put Republicans at a disadvantage. Harry was a character, and partisan to the core. We had our moments, he and I. We both liked the fights and we liked to fight. But even though there were times in our long association when I was seething over something Harry did, I could never quite sustain a permanent dislike for the guy. He was scrappy as hell. He had come up from nothing and had more than a little pride about it. Woe be to the opponent he felt didn’t respect him. On this occasion, he had somehow convinced Obama to send me a letter criticizing some reform I had proposed that I thought Obama had agreed to support.

  I was traveling overseas when the letter reached my office, about an hour after it had been sent to the press. My administrative assistant at the time, Mark Salter, got hold of it, and before he had finished reading it we started receiving press calls about it. When I called the office that day and Salter mentioned it to me, I told him to send a letter to Obama from me. “Brush him back,” I instructed, the baseball term for when the pitcher tries to nearly, emphasis on nearly, hit a batter crowding the plate. Salter, the hothead, beaned him, penning a letter so loaded with sarcasm and insults that amused reporters welcomed it as a controversy suited for a couple days in the cable news blender. It blew over by the end of the week. Obama made a pretty funny, smartass rejoinder, and Salter and I might have made another smartass remark after that. But by the time I got back from my trip, I had let it go, and believed he had as well. I wanted Obama to join our immigration effort, and was pleased when he agreed.

  I had been a man in a hurry when I arrived in the Senate in 1987. I recognized the type, and remembering how my ambitiousness had been so consuming, I had a sympathetic regard for those suffering the same ailment. I didn’t know then that Barack Obama would run for President in 2008, the year I was contemplating another run. That took daring and confidence I’m not sure I possessed in those early days of my career. But I knew he would run for President someday. He had the bug and he had the chops. That was clear on first acquaintance.

  It was clear, too, that he was focused on other objectives during that first effort at immigration reform. When he joined our morning conference, he usually had a note card in his shirt pocket with concerns about the bill he wanted addressed, and the interests who were most interested in those concerns were usually quite obvious. More often than not, they were concerns raised by the AFL-CIO or another important Democratic constituency. It was noticeably self-interested, but not an unfamiliar or unacceptable approach to legislation with the political impact immigration reform has. There were mornings when I wished he had spent more time helping us strategize how to beat back politically tricky amendments than he had advocating for amendments he wanted. That said, when he spoke on the floor on behalf of the bill he gave us good value.

  Ted Kennedy gave value no other senator could. His influence on his caucus was greater than the influence any other senator in either caucus had. He could persuade, cajole, maneuver, humor, shame, and scare Democratic senators into doing what he wanted them to do. And with that booming voice he could be pretty intimidating. Barack got a taste of it during that first immigration fight. It happened one morning near the end of the Senate debate. Obama had made a couple of requests, and while I can’t remember exactly what Ted said, it was something along the lines of “Why don’t you pitch in and help, instead of making demands every morning,” only louder. It stopped the conversation in the room for a minute. He had done it for the benefit of Republicans there, I’m sure, to remind us we could trust him. But I think he also intended to help Obama, whom he considered a unique talent. He told me he did. That day he was helping him learn how to “win friends and influence people” as the old marketing slogan goes, how to get stuff done. Obama took it in stride.

  The bill passed on May 25, 2006, with a filibuster-proof majority, 62 votes, which included 23 Republicans and 38 Democrats (and one Independent). It was major legislation passed the only way most major legislation is ever passed: with a broad bipartisan majority built on compromises both sides could live with and good faith on the part of the senators most involved. The sponsors of the bill held a press conference after the win to thank supporters and urge the House to agree t
o a conference. When it was my turn at the mic, I paid tribute to Ted, “the last lion of the Senate.”

  We all expected the bill would have to become more conservative, for lack of a better word, in conference with the Republican House. Ted knew that, and was prepared to bring his caucus along. Regrettably, House Republicans weren’t inclined to negotiate at all. When you serve in an institution where the majority almost always gets its way completely, giving in on anything is hard to accept, and disdain for the Senate with its compromising, split-the-difference ways runs high. House Republicans kept referring to the bill as the Reid-Kennedy bill instead of Kennedy-McCain as the rest of the world called it, as if that name change would fool anyone into believing that no Republican supported it. Many Republicans in Congress did, and polling made clear that a majority of Republicans in the country supported it. But it didn’t have the support in the House of a “majority of the majority,” Speaker Hastert’s precondition for letting any legislation come to a vote. And so it died, despite the White House urging Senate and House Republicans to come to terms on a compromise.

  • • •

  In November of that year, Republicans were crushed in midterm elections, losing both houses of Congress. The loss was mostly attributable to dissatisfaction with the Iraq War, not Republican opposition to immigration reform. But I don’t think the latter helped us any. In the silver lining category, with the Democrats now in charge of the House, proponents of comprehensive immigration reform would have an easier time passing a bill, or so we thought, anyway. But gridlock in Congress is not always strictly a partisan divide. In 1998, I had moved anti-tobacco legislation through the Commerce Committee, which I chaired at the time, with only one dissenting vote. We had gathered a wide coalition of most of the various interests affected by the bill, with the exception of the tobacco companies themselves, from tobacco-state senators to trial lawyers who had sued the tobacco companies. But when the bill got to the floor for debate by the full Senate, a tactical alliance formed between the most anti-tobacco progressives and conservative opponents of the bill when the latter offered amendments to entice the former, ostensibly to toughen sanctions against the tobacco companies, but in reality to weigh the bill down and bleed its support. The tobacco bill died in a blaze of anti–tobacco company indignation, equal parts cynical and earnest.

  A similar fate awaited the new comprehensive immigration bill we introduced in 2007. Early that year, before the Senate had even convened, Ted and I had approached my friend and Arizona colleague Jon Kyl, a prominent conservative and thoughtful legislator, who had opposed our bill the year before but sincerely wanted to find a solution to the impasse. Working closely with the Bush White House and with Jon, we put together a bill that incorporated provisions from a bill Jon had sponsored with John Cornyn. While Lindsey and I and our staffs were involved in the discussions, the biggest changes to the bill were mostly a product of Ted’s and Jon’s negotiations with input from the White House. I was running for President at the time, and frequently out of town. I tried to be in the Senate for much of the debate, and my staff was involved in decisions on floor strategy. Two Democrats supporting the bill were running for President, too, Hillary Clinton and Barack Obama. Of the two, Barack was the more engaged in the effort. All of us were increasingly absent from the Senate. When I was on the campaign trail, I called Ted, Jon, and Lindsey several times a day for an update, and to offer suggestions. I missed the action when I wasn’t in the Senate, and wished I could have temporarily suspended the campaign. This was in the period when we were in trouble and teetering on the brink of insolvency. I was also getting the hell kicked out of me for my immigration views by some of my Republican rivals, chiefly Mitt Romney, as well as a nuisance candidate and anti-immigration hard-liner from Colorado, Tom Tancredo. Once, when we were both in the same South Carolina restaurant, Tancredo sent my table an order of chips and salsa, meaning I’m not sure what. I guess he thought that since I didn’t want to kick out of the country every Mexican-born immigrant, I must like chips and salsa.

  The bill, thanks to Jon’s contributions, should have been acceptable to the get-tougher-on-security-and-enforcement camp. It authorized over $4 billion more for border security, thousands of new Border Patrol agents, seven hundred miles of new fencing, infrared cameras, drones, and sensors that detected footsteps. It increased penalties on employers who knowingly hired undocumented workers, and created a central database of information on all immigrant workers provided by their employers, as well as a biometric identity card that immigrant workers would have to show employers to prove they were in the country legally. It terminated the existing family reunification policy for immigrants who became citizens, and substituted a more restrictive one that limited family visas to a naturalized citizen’s spouse and children. And it established a merit-based point system for granting work visas, which would give preference to more skilled workers. These were all key demands of conservative critics, who had felt our previous effort hadn’t been tough enough on illegal immigration.

  We also established a guest worker program urged by the business community that would have given temporary visas to foreign workers who had job offers in the U.S. They would expire after two years, when the worker would have to return to his home country. The legislation incorporated the provisions of the Dream Act, which offered eventual citizenship to immigrants who were brought to the country as minors, and who were attending college or serving in the military. And the bill still offered a path to citizenship for the millions of unauthorized immigrants living and working here already. It was a longer and more conditional path than the one we had proposed the previous year. Anyone living in the country without a visa could, after passing a criminal background check, apply for a new “Z” visa in 2010, which would allow them to remain in the country. After eight years in the country, they could apply for permanent residence, or a “green card,” if they paid a fine and back taxes. Existing law allows green card holders to apply for citizenship after five years. The entire process would have taken about sixteen years from the date of the bill’s enactment. And the Z visa holder had to return to their home country to apply for a green card. It wasn’t a generous or easy route to citizenship. But it was the product of practical politics based on the premise that we couldn’t deport all or most or even a substantial minority of the undocumented immigrants in the country, and we shouldn’t want to.

  Democrats controlled both houses of Congress, and the White House was fully behind the bill, having pushed with Kyl for many of the more restrictive changes to the bill. That opened up fissures with some of the other interests supporting comprehensive reform. Labor, not all unions, but certainly the AFL-CIO, hated the temporary worker provisions. Some immigrant groups were upset with changes to the family reunification policy, and with the point system. Those fissures were seen by conservative immigration restrictionists as opportunities to kill the bill. Despite the inclusion of many provisions they had long advocated, any bill that provided any kind of path to citizenship, no matter how attenuated and scrutinized and difficult a path, was “amnesty.” The impracticality bordering on stupidity of such a position is equaled only by its inhumanity.

  Many conservatives voted for amendments offered by Senate liberals at the behest of labor and by immigrant groups dissatisfied with the bill. In effect, conservative opponents helped make the bill less conservative and business-friendly, knowing that each successful amendment attracted new opposition to the bill or at least created confusion and chaos that extended the debate.

  One of those amendments was offered by Barack Obama over the objections of the bill’s other co-sponsors, who, as we had the year before, had pledged to act by consensus. It failed, but he co-sponsored another amendment objected to by the group, offered by Byron Dorgan of North Dakota, to sunset the temporary worker program after five years. It passed and it cost the bill some of its business community support. I wasn’t there when it happened, but Lindsey called to describe it to me. Wh
en Obama informed the other co-sponsors that he was supporting and even offering amendments they agreed should be opposed, Ted tore into him in front of the others, at length, accusing him of bad faith. Obama objected that he had never agreed to act by consensus, and felt strongly that the changes he supported were needed. Ted, as he would have done with any other member of the body who needed the instruction, Democrat or Republican, explained that only senators who hold up their end of bargains get anything done there. However vociferous it was, the remonstration was again as much for Obama’s benefit as it was for the Republicans in the room. Ted, the liberal lion of the Senate, was chastising a Democratic colleague for voting with other liberals. He was showing him the ropes, how to work the Senate, something Obama would need to know whether his presidential bid failed or succeeded. Lesson one: only give your word if you’re sure you can keep it.

  The opponents succeeded. Various tactical alliances formed, all intent on continuing the debate until they could get what they wanted in the bill or what they disliked out of it. We made three attempts to cut off debate, all three failed, and Harry Reid reluctantly pulled the bill from the floor. A golden opportunity to get immigration reform done was squandered. Republicans and Democrats had collaborated in its defeat. President Bush expressed his disappointment. So did its Senate proponents. I continued to get pummeled by my primary opponents for my immigration views as my campaign was on the brink of imploding. Ted called to tell me to keep my chin up, we’d get it done next time. I wasn’t so sure.