As the Senate opened a much-anticipated immigration debate Monday, lawmakers may be embarking on something rarely attempted anymore in Congress: openly and collaboratively legislating.
Not in several years has there been a freewheeling process to draft and vote on important legislation. In the increasingly partisan climate, bills are typically crafted behind doors and either accepted or rejected, as seen in the GOP’s recent tax-cut plan or the ill-fated attempts to repeal Obamacare.
But that is not what is expected — at least not so far — when the Senate tries to strike a compromise to protect young “Dreamers” from deportation while beefing up border security and making other immigration changes.
The fair and open debate promised by Senate Majority Leader Mitch McConnell (R-Ky.) may resemble the last big attempt at an immigration overhaul in 2013. That process lasted months.
“Now it is time to back up this talk with the hard work of finding a workable solution,” McConnell said Monday. “I hope this body can seize this opportunity and deliver real progress.”
Hanging in the balance are the livelihoods of nearly 700,000 young immigrants, who have been in the country illegally since childhood. President Trump is ending the Obama-era Deferred Action for Childhood Arrivals program, which offered them temporary permits to live and work in the U.S.
McConnell was pressured to open the process as a concession to Democrats to end last month’s government shutdown.
But even as of Monday evening, some were worried the collaborative process might be short-lived. Republican leaders said they would try to limit debate to about a week.
And despite his assurances, McConnell quickly put his thumb on the scale by announcing his support for a Republican-backed bill that reflects Trump’s preferred approach. It would provide Dreamers a decade-long path to citizenship, but also include $25 billion for border security and limits to future legal immigration by capping family visas and ending the diversity lottery.
“It’s our best chance to produce a solution that can actually resolve these matters,” McConnell said, reminding senators that any bill would also need approval by the GOP-led House. “It has my support.”
Immigration advocates argue that the Republican limits on legal immigration are too high a price to pay.
Congressional leaders often promise open debates only to quickly run into the political and procedural constraints that arise when lawmakers capitalize on the opportunity to force votes on particular issues, often designed to push their colleagues into politically difficult decisions.
Those poison pill-type amendments used to be rare, but the late Sen. Jesse Helms, a Republican from North Carolina, popularized their use in the 1970s. That led leaders to increasingly limit debate and restrict the ability to offer amendments.
McConnell faced the same dilemma when he became majority leader in 2015 and oversaw debate on the proposed Keystone XL pipeline. He won praise for the unusually open process. After that, though, the Senate reverted to a more structured and partisan consideration of major bills.
“Open debates and regular order used to be run-of-the-mill,” former U.S. Senate historian Don Ritchie said in an email. “It was the way everything got done on a normal basis. These days they are rare occurrences.”
Democrats see the proceeding as a chance for Congress to lead as Trump gives conflicting signals over what to do on immigration.
“The purpose here is not to make a point,” said Senate Minority Leader Charles E. Schumer (D-N.Y.). “The purpose is to get something done.”
Though Republicans hold a 51-seat majority, most legislation requires 60 votes to avoid a Senate filibuster, meaning they’ll need Democratic support for passage.
Trump set the debate in motion when he announced last fall that he was ending the DACA program, giving Congress a March 5 deadline to devise a legislative fix. A court case has kept the program running for now.
As the debate unfolds, senators are expected to offer a range of proposals — from more sweeping measures, like the Trump-designed plan that McConnell supports, to those that more narrowly seek to address the issue.
One from Sen. Jeff Flake (R-Ariz.) seeks simply to extend DACA for three years, along with border security funding during that time, buying time while a more lasting solution can be negotiated.
“I still hold out hope for the mob of moderates in the middle who are working hard for compromise,” said Ali Noorani, executive director at the National Immigration Forum, referring to the bipartisan Common Sense Coalition, led by Sen. Susan Collins (R-Maine). Coalition members were in talks all weekend to try to build a consensus bill.
“The process, as unconventional as it is, I would argue has a chance to get to the right outcomes,” he said.
On Monday, senators took a procedural step to begin debate, utilizing a shell bill that will carry various proposals being brought up as amendments.
Senators have not decided which amendments will be offered first, but some expect the more expansive proposals, like the Republican effort proposed by Sens. John Cornyn (R-Texas) and Charles E. Grassley (R-Iowa), which McConnell supports, will be among those considered earliest.
Sen. Richard J. Durbin (D-Ill.) may offer the so-called Dream Act, the latest version of the nearly 20-year-old proposal to provide the young immigrants a path to legal status and citizenship. Or he may offer the bipartisan bill that he and Sen. Lindsey Graham (R-S.C.) developed that included Trump’s border security funds but was rejected by the White House as insufficient.
The number of amendments will not be infinite, as McConnell “fills the tree,” Senate parlance for limiting the number of amendments each side will be able to offer as branches of the main bill.
Michael Crespin, a political science professor and director of the Carl Albert Congressional Research and Studies Center at the University of Oklahoma, doubts the immigration debate unfolding this week will become the Senate norm again.
“I think this is a one-off,” Crespin said. “I don’t see an open amendment process any time in the future.”