During the last serious attempt at an immigration overhaul, Sens. John McCain and Jeff Flake played pivotal roles.
McCain and Flake, both Arizona Republicans, were members of the bipartisan “Gang of Eight” that hashed out a sweeping immigration reform deal that would pass the Senate in 2013. They were the only senators in the group from a border state.
McCain, the senior GOP member of the Gang of Eight, died in 2018 and Flake retired in 2019, leaving a vacuum on the Republican side of the aisle as President Joe Biden makes another attempt at reforming the U.S. immigration system.
Biden unveiled his plan during his first day in office, proposing an eight-year pathway to citizenship for many of the estimated 11 million undocumented immigrants in the United States.
But the political landscape is much changed from a decade ago. For one, Biden’s plan faces an evenly divided Senate, where under the existing rules they will once again need large Republican support to pass any legislation on immigration. And so far, no bipartisan coalition has emerged in the Gang of Eight tradition.
Arizona has changed over the past 10 years, too. The state largely has moved on from the anti-immigrant fervor stoked by former Arizona Senate President Russell Pearce, former Gov. Jan Brewer and former Maricopa County Sheriff Joe Arpaio.
Arizona’s U.S. senators could still play a big role in what happens on immigration. Sens. Kyrsten Sinema and Mark Kelly, both centrist Arizona Democrats, lack the seniority of the long-serving McCain but are positioned in the split Senate to influence whatever legislation comes together.
But that still leaves a void on the Republican side of the immigration debate, without influential GOP senators such as McCain or Sen. Jon Kyl, R-Ariz., who were willing to stake their political capital on that issue and drum up support from within their party’s ranks. Kyl, who served three terms from 1995 to 2013 before returning to the Senate for four months after McCain’s death, was the lead Republican negotiator who worked with the late Sen. Edward Kennedy, D-Mass., on a McCain-supported 2007 immigration reform plan that never became law.
“Senator McCain truly believed in finding the solution to this, and believing it’s the right and the fair thing to do to get a pathway to citizenship, and try to do the best they could,” said Mark Delich, who was a McCain legislative assistant from 2009 to 2016, working on immigration, homeland security and other topics. He now is the director of federal policy and government relations at FWD.us, a pro-immigration political group.
“And my hope is that the senators who are there now follow the same route,” he said.
Even with McCain’s heft, Congress failed to enact immigration reform despite the Senate passing bills in 2006 and 2013.
The 2013 “Gang of Eight” bill cleared the Senate on a 68-32 vote, with 14 Republicans voting in favor. Despite the bipartisan support for reform in the upper chamber, then-House Speaker John Boehner, R-Ohio, under pressure from conservative “tea party” lawmakers, refused to consider it, effectively killing the bill.
“That’s a harder disappointment than other defeats have been because first, it’s something that most Americans want, and most members of Congress know is the right thing to do,” McCain and co-author Mark Salter wrote in his 2018 memoir, The Restless Wave: Good Times, Just Causes, Great Fights and Other Appreciations. “But most of all, because it’s something this country needs to do now, in this political moment, as old fears and animosities that have blighted our history appear to be on the rise again, exploited by opportunists who won’t trouble their careers or their consciences with scruples about honesty or compassion for their fellow man.”
In the absence of McCain and Flake to champion immigration issues, several Republican names have surfaced as possible successors. Two other GOP members of the Gang of Eight, Sens. Lindsey Graham of South Carolina and Marco Rubio of Florida, are still in office. But to date, no Senate Republicans have committed themselves publicly to working with Biden and Democrats to pass immigration reform.
Some Democratic senators, including Arizona’s Mark Kelly, said they have begun having conversations with Republicans about immigration. Others have touted their bipartisan credentials to boost support for Biden’s proposal.
Sen. Bob Menendez, D-N.J., also a member of the Gang of Eight, announced in late January that he would introduce Biden’s immigration plan to the Senate, the U.S. Citizenship Act of 2021. That could happen as early as this week, according to aides.
“I’m under no allusions. I know from my time at the ‘Gang of Eight’ that passing immigration reform through the Senate, particularly, is a herculean task. But in 2013 when we did that, as part of the ‘Gang of Eight.’ We were told it would never happen,” Menendez told a group of migrant advocates on a call last month.
The bill is expected to include the main points of Biden’s plan, with the centerpiece focused on providing legalized status for an estimated 11 million undocumented immigrants living in the United States. It also calls for additional investments to ports of entry along the U.S.-Mexico border and aid to Central American countries to tackle the root causes of migration.
However, some analysts say the current makeup of the House and Senate, with margins so tight, a very polarized atmosphere, and with Republicans already looking ahead to 2022 midterm elections, will make it even tougher to craft a compromise and pass the bill.
“It used to be members wouldn’t want to touch this issue during an election year. But now, it’s always practically an election year. They’re always campaigning,” said Lora Ries, a senior research fellow for homeland security at the conservative Heritage Foundation.
She previously worked on Trump’s presidential transition team after his election victory in 2016. Ries subsequently joined his administration serving in various positions at the U.S. Department of Homeland Security.
“The window of time is so limited, and these bills are so complicated and the debate dragged out, that it doesn’t make for a good formula for successfully passing something,” she said.
Which Republicans will step up?
The Citizenship Act of 2021 will face an uncertain path in the Senate under its rules and procedures. But it could have an easier path if Democrats eliminate the filibuster, which would allow them to pass it on a simple majority vote instead of having to clear a 60-vote threshold.
For now, the filibuster is expected to stay in place, in large part because of opposition from certain moderate Democratic senators, including Sinema.
That means that Democrats will need the support of at least 10 Republican senators to pass any immigration legislation.
Graham and Sen. Dick Durbin, D-Ill., another Gang of Eight member, on Feb. 4 introduced their latest version of the DREAM Act, which focuses on undocumented migrants brought to the U.S. as children.
“I first introduced the Dream Act 20 years ago, and I’ll continue fighting until it becomes the law of the land,” Durbin said when he introduced the bill. “This is a matter of simple American fairness and justice. I thank Senator Graham for partnering with me again in this important bipartisan effort.”
That raises the possibility of doing immigration reform in a piecemeal process, where lawmakers take on more targeted legalization efforts, rather than a comprehensive approach that in the past has also included additional border security and a plan for foreign guest workers. But even that faces hurdles.
Congress has been unable to pass the DREAM Act on repeated occasions, including in 2010 when the House approved the bill, but senators from both parties maintained a filibuster in a 55-41 vote, killing its chances in the Senate.
The basic framework for comprehensive immigration reform was set by McCain, when he joined forces with Kennedy to create a comprehensive plan in 2005, and then again with Kyl in 2007. Both proposals failed.
Notably, other than additional technology and infrastructure upgrades at the nation’s ports of entry, Biden’s plan does not include major border security or immigration enforcement components, which have traditionally been included to entice Republican support.
Delich said Biden, like McCain, is intimately familiar with the inner workings of the Senate and that his Citizenship Act of 2001 is merely the first step in what could be a lengthy process to craft a compromise with Republicans.
But he added that he thought those elements are not necessarily needed as part of this comprehensive approach. Delich said border security efforts have consistently received federal funding to the tune of $25 billion each year.
“It’s not like nothing has been done at the border, whether it’s the one thousand miles of fencing or walls, or an increase of agents. A lot of that work has been done already,” he said. “We’ve done a lot on the border; we’ve done a lot of the interior enforcement. But we haven’t done anything on … improving our immigration avenues or on the legalization of folks who are undocumented.”
Ries, who is critical of Biden’s proposal, said one of the risks with crafting a comprehensive bill is that they grow into hundreds or thousands of pages and die under their own weight, she said. While Biden may pick up support in one particular part of the bill, that might mean losing support on others.
“What’s different about what the Biden administration seems to be introducing is there’s no border security. So it’s not even starting out as ‘comprehensive,’ which in the past meant both benefits and enforcement,” she said. “This is just benefits. And so as is, it’s a non-starter. You’re not even going to get the (Sen. John) Cornyns (of Texas) and the Lindsey Grahams if there is no border security as part of the bill.”
Kyl echoed those thoughts. He also worked on compromise immigration bills in 2005 and 2007, but both ended up failing.
“There are plenty of Republicans, like Senators Lindsey Graham and John Cornyn who will gladly work on immigration legislation,” Kyl said. “The question is whether President Biden wants bipartisan legislation, or will try to push his one-sided bill with Democrats only.”
Some of the senators The Arizona Republic contacted for comment on Biden’s proposal were unavailable for interviews or did not respond to requests, mainly because of the attention on Trump’s second impeachment trial. Others issued written statements.
Many of the Republican names that have surfaced in conversations with analysts are familiar to the immigration debate. There are only five Republicans still serving in the Senate who voted for the comprehensive immigration bill the Gang of Eight championed in 2013.
They include Gang of Eight veterans Graham and Rubio as well as Sens. Susan Collins, R-Maine, John Hoeven, D-S.D., and Lisa Murkowski, R-Alaska.
Kevin Bishop, Graham’s spokesperson, said the senator did not see Biden’s immigration proposal going very far as is. The same goes for the DREAM Act the senator co-sponsored, he added, if presented as a standalone bill.
“One question, which has not been asked enough, is exactly what are Democrats willing to give up to get something like the Dream Act passed,” Bishop said in an email. “Trump offered $25 billion for border wall in exchange for passage of Dream Act. They didn’t take him up. So what are they prepared to do to get it done?”
A Rubio spokesman referred to a Jan. 19 statement on Biden’s immigration proposal. There were other priorities that required more immediate attention, such as COVID-19 and the economy, Rubio said at the time.
“We need laws that decide who and how many people can come here, and those laws must be followed and enforced,” Rubio’s statement read. “There are many issues I think we can work cooperatively with President-elect Biden, but a blanket amnesty for people who are here unlawfully isn’t going to be one of them.”
There was no response from the other three senators who voted in favor of the 2013 bill, Collins, Hoeven and Murkowski. Or from Sen. Mitt Romney, R-Utah, who has emerged as a potential swing vote on major issues.
Other options to pass the bill?
With the prospects of a deadlocked Senate, there are other potential routes to get an immigration bill passed, even without Republican support, according to Frank Sharry, the founder and executive director of America’s Voice, a progressive immigration reform group.
Sharry has been closely following, and at times directly involved in, conversations about immigration reform in Congress for much of the past 20 years. It is only a matter of time before U.S. lawmakers approve a legalization bill, Sharry said.
“So, first question is can we pass a bill that legalizes millions with Democrats only? And the answer is yes. If they are part of a package and that is approved by reconciliation,” Sharry said, referring to the process by which lawmakers can expedite approval of budget legislation.
“The idea is, we think, we include Dreamers, TPS (temporary protected status) holders, farm workers and other essential workers in an economic recovery package that requires 51 votes. Then we have a chance to legalize millions this year,” Sharry said. He put the number between 7 and 8 million undocumented immigrants.
So far, that idea has not gained any traction within Congress.
Most of the focus has been on another, more controversial option: eliminating the Senate filibuster. The move would allow Senate Democrats to overcome Republican opposition on major legislation and pass it on party lines, with Vice President Kamala Harris breaking any tie votes.
Doing so would require support from all Democrats, including moderate lawmakers like Sen. Joe Manchin of West Virginia and Sinema.
Sinema was unavailable for an interview because of the impeachment trial. But her office pointed to her earlier statement opposing the removal of the filibuster.
“Retaining the legislative filibuster is not meant to impede the things we want to get done — rather, it’s meant to protect what the Senate was designed to be: a place where Senators come together, find compromise, and get things done for our country,” Sinema said in the statement.
But analysts believe that Sinema, Kelly and other moderate Democrats will be under increasing pressure to support eliminating the filibuster, especially if bipartisan attempts to craft a compromise bill fail to produce any results.
“I’m optimistic that in the end, Sinema and Kelly will do what is right for the country,” Sharry said. “And I’m afraid that backing the filibuster and therefore thwarting major legislation is not the way that they are going to serve their state and their country best.”
Even Ries, with the Heritage Foundation, agreed that Sinema and other moderate Democrats will be under constant pressure to remove it.
“Time will tell, but given the vote-a-rama and the Democrats pushing through the COVID relief package, and other tactics that the Democrats are pushing right now, I’m not comfortable that the filibuster is safe,” she said.
Sinema and Kelly could play big roles
Regardless of which of those scenarios Democrats end up choosing to advance immigration reform in Congress, they underscore the considerable influence Sinema and Kelly could play.
Despite their relatively recent arrival in the Senate, the two have already showed signs of their influence.
In Sinema’s case, her stance on the filibuster settled an important question in the transition to the new Democratic Senate majority.
Sinema, who joined the Senate in 2019, filed numerous bipartisan bills aimed at strengthening border security and tackling the backlog in immigration cases, her office said.
In a statement, Sinema doubled down on her pledge to work with Democrats and Republicans to address what she called a broken immigration system.
“Strong border security and a fair immigration system go hand-in-hand, and I remain committed to finding bipartisan, commonsense solutions to secure Arizona’s border, keep Arizonans safe, and ensure migrants are treated fairly and humanely,” she said.
In Kelly’s case, he is just a few months into his term. And he faces re-election in 2022 to continue filling the seat once held by McCain.
Kelly is part of a bipartisan working group in the Senate, made up of 10 Democrats and 10 Republicans, who worked with Biden on the COVID-19 relief package, Kelly said.
That group has already started to address other issues beyond the pandemic, including conversations with other Republican senators on immigration reform.
In his statement, Kelly expressed support for some of the elements of a possible immigration deal.
“Parts of those solutions include investments in advanced technology and staffing at the border, upgrading ports of entry, providing a pathway to citizenship for Dreamers and keeping their families together, and modernizing our legal immigration system to set Arizona’s economy up for success,” Kelly said.
Like Sinema, he also committed himself to working with members of both parties to achieve those changes.
Both senators came under criticism from progressive groups earlier this month for voting in favor of a non-binding amendment to the COVID-19 relief bill that made undocumented immigrants ineligible to get stimulus aid, even though existing rules already establish that. Both defended their votes.
Delich, the former McCain aide, said senators should do what they believe is the right thing. But he pointed out that thousands of undocumented immigrants working essential jobs continue risking their health and should be eligible for aid.
He added that lawmakers, particularly in a state such as Arizona, need to be able to engage with different constituencies and have the ability to address the nuances in the immigration debate to be successful.
“It’s too big and important of an issue to the state to avoid it, and so I don’t think they’ll have a choice but to engage it,” Delich said. “I think you look at how the 2020 election played out, it only benefits them to engage in a positive manner and try to find a solution that is bipartisan.”
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