The immigration issue

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My U.S. News column this week is on immigration, and since I wrote it (Friday deadline), the playing field has changed. Late on Friday afternoon, the Senate Judiciary Committee passed, by a 12-to-6 margin, a bill with border-security provisions (less stringent than in the House bill passed last December) and with legalization and guest worker provisions (not covered in the House bill at all).

The vote saw all eight Democrats being joined by four Republicans: Chairman Arlen Specter, Ohio's Mike DeWine, South Carolina's Lindsey Graham, and Kansas's Sam Brownback. The legalization and guest worker provisions tended to follow those in the bill sponsored by Edward Kennedy and John McCain. Arizona's Jon Kyl and Texas's John Cornyn, cosponsors of a bill with different legalization and guest worker provisions, voted against the Judiciary bill.

Speculation has been abounding about the political motives behind these votes and the political effects of the issue. But in the Senate Judiciary Committee, at least, I think most if not all members voted their convictions. The Democrats tend to favor an approach that legalizes current illegals and lets more guest workers in—that's reasonably consistent with their philosophy—and note that labor unions, which might arguably be concerned about letting low-wage competition in, have not weighed in that direction. And the differing views of Republicans cannot be ascribed to an attempt to woo Hispanic voters in their states.

Here are the Latino percentages of the electorate, according to the 2004 NEP exit poll, in the states represented by Republican supporters of the Judiciary Committee bill: Specter (3), DeWine (3), Graham (1), and Brownback (5). In other words, none faces peril from an angry Latino voting bloc; the highest Latino percentage is in a state, Kansas, that is overwhelmingly Republican and hasn't elected a Democratic senator since 1930. Here are the Latino percentages for the Republicans who voted against the bill: Hatch (5), Grassley (1), Kyl (12), Sessions (1), Cornyn (20), and Coburn (4). Large and growing Latino blocs in Arizona and Texas might have provided their senators with a motive to vote for the bill, but they didn't, and the reason, I think I can say based on my conversations with them, was because they believe it would be bad public policy. Also, the committee's Democrats face electorates with widely varying Latino percentages, but they all voted the same: Leahy (1), Kennedy (6), Biden (2), Kohl (2), Feinstein (21), Feingold (2), Schumer (9), and Durbin (8).

Last week, Senate Majority Leader Bill Frist said that he would bring his own border-security-only bill to the floor unless a majority of Judiciary Republicans voted for a committee bill; Minority Leader Harry Reid said he would mount a filibuster if Frist did that. Only four of the 10 Judiciary Republicans voted for the bill, and Frist has kept his word. But the Senate Republican leadership has also made it clear that it will allow amendments—and under Senate rules, it can hardly expect to stop them—which makes the filibuster threat moot. It looks like the votes are there on the Senate floor to produce a bill that looks a lot like the Judiciary Committee product, and Judiciary Democrats like Edward Kennedy, who has done serious work on immigration issues over a period of more than 40 years, presumably will offer amendments to produce that result. Jeff Sessions, one of the opponents of the committee bill, admits glumly that something quite like it will probably pass.

Then, presumably, we will have a conference committee. The question is not so much whether it can come up with something capable of winning a majority on the House floor as whether it can come up with something that the House leadership—Speaker Dennis Hastert and Judiciary Chairman James Sensenbrenner most especially—will allow to come to the House floor. Hastert has said in the past that he doesn't want to bring measures to the floor that don't have the support of a majority of House Republicans, and his spokesman says that still holds on this issue. Sensenbrenner responded very negatively to the Senate Judiciary bill. But newly elected House Majority Leader John Boehner, in a more conciliatory tone, said the House will take a look at whatever the Senate passes. The key number here may turn out to be 117—a majority of the 232 House Republicans (that's assuming Republicans hold on to the California seat vacated by the disgraced Duke Cunningham). House backbencher Tom Tancredo, an enthusiastic backer of immigration restrictions, has assembled an Immigration Caucus with 91 members—short of the magic number but uncomfortably close to it. He'd be happy to lead the opposition to any bill with legalization ("amnesty") and guest worker provisions.

It's easy to see how partisans of either side could manipulate this issue for short-term political gain. Partisan Democrats could insist on legalization and guest worker provisions unpassable in the House—and tell Latino voters that evil Republicans prevented passage of a compassionate bill. Partisan Republicans could insist on a border-security-only bill and tell voters wary of illegal immigrants that evil Democrats want to keep our borders open to illegal immigrants.

But I'm not sure it will play out this way. I'm of the perhaps Pollyannaish belief that many of the key players in both parties and on both sides want serious legislation. They see that it's really unacceptable to have large numbers of illegals in the country: Laws should not be flouted. They see that our economy has come to depend on the services of large numbers of people who are here illegally: We need to make our immigration laws work in tandem with the labor market. They see that if we fortify the border we also need to make provision for economically needed workers, which means some kind of guest worker provision. If I'm right, the conference committee members will try to come up with a compromise that is passable. Whether they can do that, of course, is uncertain. But I think the prospect for legislation is greater than 50-50 right now, though not much greater.

The formula will probably be tough border security provisions together with legalization and guest worker provisions that will not put currently illegal immigrants in line ahead of immigrants who are currently obeying the law. Whether current illegals will have to return to their country of origin to regularize their status (as in the Kyl-Cornyn bill) will be a tricky issue to finesse; we don't want to make legalization so easy as to reward illegals, but we also don't want to make it so difficult that current illegals will ignore it and take their chances on illegal status.

I conclude with some political advice to Republicans, from two different sources. David Frum argues that any legalization or guest worker program would be political poison for Republicans. Dick Morris argues that the best thing for Republicans would be tough border security together with legalization and guest worker provisions.

For what it's worth, I'm closer on this to Morris, whom I only barely know, than to Frum, who has been a longtime friend; I would add that I think Morris's formula would be politically advantageous to Democrats, too. Frum is worried that anything smacking of amnesty would alienate a large part of the Republican base and that Republicans need high turnout to prevail in 2006. I agree on the latter point, but I am doubtful that a border-security-only bill can pass the Senate, and I think inaction on what is a genuinely pressing issue would hurt the Republicans' reputation for competence.