Exhausted by years of sputtering immigration talks with Republicans, Democrats plan to try their luck with the Senate's byzantine rulebook instead.
Top Democrats, with the support of the White House, are planning to tuck a handful of immigration measures into their forthcoming $3.5 trillion spending bill. The tactic — which just months ago seemed like a long shot even to liberals — is now widely seen as President Joe Biden’s best shot at confronting one of Washington’s policy leviathans and delivering on a decades-long party promise.
“It’s very, very difficult to get Republicans right now. Even those who were around showing leadership in 2013 are very hesitant to step up,” said Michigan Sen. Debbie Stabenow, the No. 4 Democratic leader. “Unfortunately, in the world we are in, with Sen. McConnell trying to slow down and stop everything, this is our best option.”
Taking that backdoor approach to immigration, which wouldn’t require a single GOP vote, could cast a chill over any future attempts at bipartisan reform. But those bipartisan talks have stalled out in the Senate after nearly a dozen meetings, and Democrats have perhaps their only opportunity at going around Republicans on the issue.
Though a long way short of a comprehensive overhaul, Congress’s fiercest immigration advocates are embracing it.
“We have had an every-which-way approach to immigration reform,” said Rep. Raul Ruiz (D-Calif.), who leads the Congressional Hispanic Caucus and began pushing for the idea in January. “This is currently our best effort.”
Some Democrats are more blunt in private, saying they believe the current strategy is their only chance to enact meaningful immigration changes this Congress. But there’s no guarantee it will work, and there’s some skepticism in the Senate about what can actually be done.
The plan, still in the draft stage, would create a pathway to citizenship for certain undocumented groups, such as Dreamers who were brought to the U.S. as children and farmworkers already living here. Many Democrats, including the Hispanic Caucus, are also pushing for “essential workers,” including health workers during the pandemic, to receive green cards under the bill.
Success is still far from certain: Democrats don’t know whether the measure can survive the Senate’s obscure budget rules that would allow the bill to pass without GOP support. Democrats say they will go back and forth with the Senate parliamentarian, its nonpartisan rules referee, to push the breadth of immigration reform as far as it will go.
The parliamentarian vets whether provisions of a bill passed using the legislative power known as budget reconciliation can evade a GOP filibuster and pass with a simple majority. While immigration provisions have survived past parliamentary scrutiny, they did so while commanding significant bipartisan support. This will be different, with a strong partisan challenge from Senate Republicans. (The current parliamentarian, a former immigration lawyer, stripped out Democrats’ minimum wage hike in a coronavirus aid bill earlier this year.)
Already, Senate Republicans’ campaign arm is set to hammer Democrats if they go along with seeking a path to citizenship. And the Senate GOP is vowing to adamantly contest the tactic.
“It’s something that we would challenge,” said Sen. Thom Tillis (R-N.C.), who has been involved in the bipartisan talks. “There’s a legitimate question to be asked about whether it’s eligible for reconciliation.”
A powerful coalition of House Democrats has recently backed the gambit of tackling immigration through the budget, including leaders of the Progressive Caucus, the Hispanic Caucus and the Black Caucus. In the Senate, Majority Whip Dick Durbin, Sen. Bob Menendez (D-N.J.) and Sen. Bernie Sanders (I-Vt.) are among the strongest proponents.
Durbin confirmed this week that the party aims to put citizenship for some immigrants into the sprawling spending bill but cautioned that the “decision has not been made” concerning how many immigrants who fall under the Dreamers, farm workers and essential workers designations would get a pathway to citizenship.
While Democratic leaders haven’t revealed details about their precise plans, several lawmakers said the party will take a trial-and-error approach. One Democratic lawmaker involved said negotiators are still looking at which mix of policy changes would raise enough money to pay for other unrelated priorities in the sprawling spending package.
“I’m pretty confident,” Ruiz said, citing several studies about the policy’s economic impact, but he stressed that the goal was a measured approach that can satisfy the Senate budget rules. “We will be flexible and continue to push throughout the entire process and get as far as we can get.”
So far, the idea is attracting little resistance from Democrats, even with their threadbare margins in both chambers. House Democrats, which have struggled on broader immigration bills, have already unanimously backed a pathway to citizenship for those Dreamers, farmworkers and immigrants previously granted Temporary Protected Status, known as TPS. Another option is extending a path to citizenship for all TPS recipients.
But several Democrats caution that it will be trickier to reach consensus on the other group: “essential workers,” a label already spurring complex discussions about which employees count. One bill from Sen. Alex Padilla (D-Calif.) and Rep. Joaquin Castro (D-Texas) would open the door to citizenship for more than 5 million front-line workers across nearly 20 sectors, including janitors, nurses and farmworkers.
The bipartisan Senate group is “still at it, but if that doesn’t work then I think there is a strong demand by several of us to see immigration in reconciliation,” Menendez said.
Democrats argue there’s another reason to be more optimistic: This Congress wouldn't be the first time lawmakers have tacked on immigration to a budget bill. Several lawmakers have pointed to a massive GOP-led bill in 2005 that included a measure to address a backlog of immigrant visas — which was allowed under the same arcane budget process but had much broader support from both parties.
“I do think the precedent is one thing we can look at to feel good,” said Rep. Pramila Jayapal (D-Wash.), who leads the Congressional Progressive Caucus. Jayapal, along with other progressive leaders, recently met with Schumer, Durbin and Menendez to help prep their party’s case on the issue.
Jayapal and others also argue that the Congressional Budget Office itself has shown that many of their preferred immigration changes will have a measurable impact on the budget.
But trying to add immigration to their budget bill is a big political risk for Democrats, who months ago watched their minimum wage hike fall to a rules judgment in the Senate. This time around lawmakers and advocates said they are taking a gentler lobbying approach, making sure not to look as if they are personally attacking the parliamentarian as they push for immigration reform to be included.
The outside pressure is undoubtedly high. Immigrant advocates argued this week that if Democrats do not succeed in passing a pathway to citizenship this year, they cannot depend on key Latino constituencies to turn out in 2022.
Sen. Mark Kelly’s (D-Ariz.) “reelection depends on” delivering a pathway to citizenship, said Lorella Praeli, co-president of Community Change Action, a progressive grassroots group.
Many young Latino voters who supported Democrats in high numbers in 2020 have undocumented family members, said Praeli, warning that “they have been hearing, ‘We're going to get it done, you just got to vote for us!' cycle after cycle. ... And so at some point, that argument loses its potency.”
Kelly said on Thursday that the Senate needs to support young immigrants and farm workers but that he’d need to “look at the details” of whatever is proposed.
Heather Caygle and Anthony Adragna contributed.