This week is supposed to be “Immigration Week” in the Senate, when Majority Leader Mitch McConnell makes good on his promise to allow a fair, open debate.
President Trump campaigned on building a “wall” on the southern border and then endorsed reductions in legal immigration (although not the H-2B workers employed by his own Mar-a-Lago club). Democrats refused these proposals, so Trump took a “hostage” by canceling the executive branch’s Deferred Action for Childhood Arrivals (DACA) program. Notably, Trump’s announcement that he was canceling the program (which Congress had never authorized) was paired with a call for Congress to finally pass a law granting legal status for undocumented residents who were brought to the US as children.
Of course, Trump insisted that any law to provide for these DREAMers, as they’re known, would have to include his immigration proposals as well, including reducing immigration from “shithole” countries.
DACA makes a bad hostage, however. On the one hand, the kidnappers need to extract a huge ransom. A non-trivial portion of Trump voters and congressional Republicans object to any legal status for anyone who came or stayed without documentation, so any DACA bill will be denounced as granting “amnesty.” This is why the White House’s ransom demand — a border wall, reduced diversity and family visas — is extremely high, and negotiations broke down in February.
On the other hand, killing DACA is bad politics. Allowing DREAMers to stay is supported by 70 to 80 percent in various polls, while Trump’s demands — including the border wall — poll much worse. Every day that the focus is on DREAMers who broke no laws (as adults) and, in many cases, have worked hard to join and contribute to American society is a day that Trump fails to convince Americans that immigrants are criminals.
This is the background for the “free-for-all debate” that the Senate is supposed to be having this week, in which senators offer amendments to an empty bill. As of Wednesday at noon, this wild, raucous deliberation has yielded exactly zero votes on amendments. The reasons are a great illustration of what is wrong with the Senate.
1) All senators are equal, but McConnell is the boss
This bill nicely illustrates how the majority and minority party leaders of the Senate are increasingly involved in structuring the terms of debate. There are two strategies that highlight the role of party leaders.
Unanimous consent agreements: As it turns out, “freewheeling debate” means “do what you want as long as you conform to agreements negotiated between party leaders and accepted by all 100 senators.” Instead of actually allowing any senator to offer any amendment, the Senate is stalled while McConnell and Minority Leader Chuck Schumer negotiate which amendments will be allowed, and in which order.
60-vote thresholds: Senate rules only require a simple majority to amend a bill. But Senate GOP leaders have announced that any amendment to the bill must garner 60 votes to win. This threshold is not required by the rules and can only be imposed if it is part of a unanimous consent agreement. Of course, that means that any senator interested in actually passing something has to agree to this ground rule or the Senate will go nowhere.
2) Is the Senate making policy or writing campaign ads?
McConnell’s opening proposal to Schumer is that the Senate would vote on a Pat Toomey (R-PA) amendment to punish sanctuary cities, while the Democrats could hold a vote on any proposal they choose. The Toomey amendment is a classic example of what Frances Lee calls a message vote: a vote used to reinforce a partisan contrast rather than change policy for the better.
Assuming Democrats vote down the Toomey amendment, Senate Republicans and the National Republican Senate Committee would communicate their outrage to the world via tweet and press release in the short term. And come the fall, Republican candidates and the NRSC could run television ads against Democratic senators running for reelection in red states.
Of course, McConnell’s offer is fair in that Democrats could bring up their own message amendment and get Republicans on the record. Most interestingly, Democrats could bring up their preferred DACA/DREAMer legislation as a standalone proposal and force Republicans to either vote against a popular policy or vote with the Democrats and allow a simple DACA plan to become the first — and possibly only — policy in the immigration bill.
Schumer, however, would prefer to eschew the messaging and only consider comprehensive proposals like the bipartisan McCain-Coons or Graham-Durbin plans, or the Trump proposal introduced by Sen. Chuck Grassley (R-IA). Maybe Schumer prefers these proposals because the Democrats are more inclined to focus on realistic proposals, but it could also be that Democrats fear a round of messaging amendments more than the Republicans because they have more incumbents at risk in 2018 than the GOP.
3) Sequence matters
The McConnell-Schumer negotiations highlight the importance of sequence. Schumer wants to hold the first vote on the Trump plan, presumably so that the Democrats (and perhaps a few “no amnesty” Republicans) can vote it down and then focus on passing a less restrictionist proposal.
McConnell, on the other hand, would prefer to hold the Trump-Grassley proposal until the very end and then propose it as the only viable option (all others being defeated already) or as the alternative to any amendments already adopted. Senate expert James Wallner (whom you should follow on Twitter!) explains:
We now also have a better idea of the process McConnell would like to follow once on the bill as a result of the two unanimous consent requests he propounded yesterday. He wants to allow minor amendments first and then offer a clean up substitute at the end (which is real bill)— James Wallner (@jiwallner) February 14, 2018
At this point, it is not clear how events will unfold. But the sheer difficulty of having any debate at all illustrates why the Senate has ground to a halt. It is not simply the supermajority thresholds that stall the chamber; it is the combination of supermajority rule and the practice of negotiating the agenda between party leaders who are trying to balance their parties’ electoral interests (force votes on their own message issues, avoid votes that endanger members in electoral jeopardy) with senators’ desire to actually move the country forward.
However, it seems quite possible that at some point, the Democrats may conclude that they are better off calling President Trump’s bluff and refusing to negotiate with kidnappers. It is not clear whether Trump would actually proceed with deporting current DACA recipients, and if the Democrats gain a majority in the House — and even the Senate — in the 2018 elections, they will be in a much stronger position to set the agenda and decide which immigration package makes it to the president’s desk.