It's going to be fascinating to watch the progress, or lack of progress, of the immigration compromise hammered out by Sens. Edward Kennedy and Jon Kyl. They're an interesting pair of partners. The first bill that Kennedy floor-managed as a senator was the immigration act of 1965, some 42 years ago. Last year, he and John McCain worked out the details of the bill that passed the Senate on May 25 by a 62-to-36 margin. That was described as a "comprehensive" bill, with border security, guest-worker, and legalization provisions. It was vocally opposed as "amnesty" by many on the right. Kyl voted against it. What Kennedy and Kyl appear to have agreed on--there's no text available yet, as far as I know--answers some of the objections on the right. Guest workers will be limited to two years and will then have to return to their country of origin for one year before they can come back for another two-year stint. Family reunification will be limited, at least in some circumstances, to the immediate family--no aunts, uncles, cousins, or grandparents. There are trigger provisions that keep the legalization sections from coming into effect until border security is improved in certain ways. And illegal heads of household would have to return to their country of origin--"touchback"--and pay a $5,000 fine before they could receive legal status.
Kyl was negotiating out of weakness. It takes 41 votes to block a bill, and the 62-to-36 majority for the Senate bill last year suggests that there was no way he could get to 41. The two senators who didn't vote (Rockefeller and Salazar) are likely yeses. Four Democrats voted no: Dorgan and Stabenow (presumably because they shared the fears of many union leaders that more immigrants will lower the wages of low-skill workers), Byrd (who perhaps shares the same view and is in any case not easily malleable), and Nelson of Nebraska (a rather conservative guy). They're probably still in the "No" column. Four Republicans who voted no were defeated by Democrats, and, while it's not clear that any of their successors (Webb, Tester, Casey, McCaskill) would have voted yes, at least some of them might have. Three Republicans who voted yes have been replaced, two by Democrats, one of whom might be counted as a no (Brown), the other who seems a likely yes (Whitehouse). Bill Frist's replacement, Bob Corker, can probably be counted as a no, like his Tennessee colleague Lamar Alexander. So if you were Kyl and you wanted to block something like the 2006 bill, you'd have to hold the four Democrats who replaced no-voting Republicans and you'd have to pick up Brown and Corker just to get to 38. And, leaving Corker aside, those are five senators of the opposite party with whom you've had no chance to build a personal relationship. Then you'd have to persuade three other senators to change their minds. Not a strong hand.
So it's remarkable that Kyl was able to get as many concessions from Kennedy as he did. Evidently, Kennedy, who whatever else you may think of him is a highly capable and hardworking legislator, decided that he preferred an imperfect bill that can pass to a perfect bill that could fail. This is a course of action he's followed before, on the No Child Left Behind Act in 2001 and in the first round of votes on the Medicare prescription drug bill in 2003 (he opposed what came out of the conference committee). If Kyl was not at all certain that he could rally 41 votes, Kennedy apparently feared he could. All it would take is for a few Democrats to take the stand that Dorgan and Stabenow did. Perhaps his own soundings in the Democratic caucus suggested that was possible. Or perhaps he feared the Republican leadership would figure out a way to stall and prevent passage.
It's not clear, however, whether he has calculated correctly. Initial reaction from politicians more concerned with the national response than with vote-counting in the Senate has been negative. Republican presidential candidate Mitt Romney came out against it, and Rudy Giuliani issued a statement saying his top priority was border security--not a ringing endorsement. Hillary Clinton said she would study the proposal, and Barack Obama said it should be "carefully examined." AFL-CIO President John Sweeney came out stoutly in opposition. Senate Majority Leader Harry Reid and Speaker Nancy Pelosi both said they had "serious concerns." In contrast, Senate Minority Leader Mitch McConnell said there was "reason for optimism" the Senate would pass a "landmark piece of legislation." It sounds to me as if Democrats are pressing Kennedy for concessions back in their direction. As Mickey Kaus, a staunch opponent of the bill, points out, "It's not uncommon for a bill to ultimately fail because it loses votes at both ends." His case in point: Richard Nixon's Family Assistance Plan in 1971, which was defeated by a combination of those who thought it was too generous and those who thought it was not generous enough.
Then there is the question of what the House will do if the Senate passes something like Kennedy-Kyl. Last year, Speaker Dennis Hastert refused to bring up an immigration bill similar to the Senate's on the grounds that it was opposed by a majority of House Republicans. Instead, the House passed a border security bill in December 2005 and in September 2006 passed a bill, which became law, authorizing a 700-mile border fence. (The fence is scaled back in Kennedy-Kyl, a concession by Kyl much criticized by Kaus and conservative bloggers.) Pelosi's frosty response to Kennedy-Kyl suggests that her inclination is to pass something closer to the 2006 Senate bill than to Kennedy-Kyl--or not to pass anything at all. It was assumed last year that there was a majority in the House for something similar to the 2006 Senate bill, with a fair number of Republicans and a large majority of Democrats for it. But with the AFL-CIO in opposition, a lot of House Democrats may not be inclined to support Kennedy-Kyl, and probably very few Republicans will. Can Pelosi rally 218 of 233 Democrats for Kennedy-Kyl? Probably not. Could she get 218 for the 2006 Senate bill? More likely. Pelosi has the potential to do on this issue what Hastert did on the 2001 and 2003 tax cuts and the 2003 Medicare prescription drug plan: pass a version that's acceptable to the party base and then beat down the Senate negotiators in conference committee as far as possible. Key House conference committee negotiators would come from the Judiciary Committee. Chairman John Conyers, from a low-income Detroit district, is not thought to be gung-ho for guest workers and legalization. Howard Berman, the No. 2 Democrat, is highly knowledgeable on the issue and would most likely favor something like the 2006 Senate bill but is adept at compromise. Pelosi probably feels she cannot trust either of them to do her bidding: Conyers has muttered too much about impeachment over the past two years and as the senior member of the Congressional Black Caucus is not subject to much in the way of discipline; Berman, from a district with a (mostly nonvoting) Hispanic majority, was one of the 59 Democrats who voted recently against the get-out-now resolution on Iraq and is probably more amenable to a Kennedy-Kyl type of compromise than she would be. The ranking Republican, Lamar Smith, can be counted on to oppose any guest-worker or legalization programs, as he did while chairman of the subcommittee handling immigration.
My own response to the Kennedy-Kyl compromise is mostly positive. But I haven't fully digested the details, and, to use congressional lingo, I reserve the right to revise and extend my remarks. I have long felt that we need to regularize the flow of immigration into our country and to do more to assimilate immigrants. I even went to the trouble of writing a book on the subject. Kyl got concessions from Kennedy that are intended to shift the flow of immigration from family reunification to high skills--a useful course correction, in my view. And I have come to believe, reluctantly, that we need to move to a tamperproof ID, something that Mexico has done successfully with its voter registration card. Failure to pass any immigration law will leave us with a status quo that, in these two respects at least, is less desirable than what Kennedy-Kyl seems to provide. But let's see how things work out. Next week is going to be an interesting time in the Senate.