The next few months offer the best chance in a generation for the two parties to solve a problem that has bedeviled Congress like few others. Both sides agree the U.S. immigration system is broken. Both would seem to gain from a deal that clears a pathway out of legal oblivion for the nation’s 11 million illegal immigrants. Support is building for a landmark pact. But while negotiations are progressing in both the House and Senate, an agreement is a long way off. As the talks grow more detailed, obstacles to a deal may begin to emerge:
Problem #1: The Gang of Eight
The first snag lurks in the Senate, where the so-called Gang of Eight has huddled privately since the election in hopes of hammering out a bill. Members have crafted a set of measures that would create a pathway to citizenship for the nation’s estimated 11 million undocumented immigrants within about 13 years while requiring them to register with federal authorities, pay back taxes and fines, learn English and undergo background checks. The deal, both sides agree, would also beef up border security and determine how the future flow of immigrants will be regulated to match the needs of the economy.
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The Gang’s closed conclaves have been marked by Vatican-style secrecy, often a sign of progress in a town where silence is rare. The Gang’s members – Republicans Marco Rubio, Lindsey Graham, John McCain and Jeff Flake, and Democrats Chuck Schumer, Dick Durbin, Bob Menendez and Michael Bennet – have, by all accounts, developed a rapport. “You can tell by the tone of their voices,” says an elected Democrat briefed on the progress of the private talks.
But the broad themes are the easy part. The full bill will stretch to hundreds of pages, each peppered with detailed provisions that could spike it. Members bring clashing political imperatives and ideologies to the talks. Rubio, for example, is trying to repair the GOP’s tattered image with Hispanic voters without sparking a backlash among the movement conservatives he’d need in a presidential bid. Graham, who faces a probable primary challenge in 2014, has a habit of basking in the bipartisan spotlight before bolting when negotiations intensify. The measure of the Gang of Eight’s success isn’t whether they are aligned at the start of their talks. It’s whether they are all aligned at the end.
Problem #2: The Lobbyists
A few years ago, an impasse between the leaders of the Chamber of Commerce and the AFL-CIO helped scupper an immigration-reform bill backed by President George W. Bush. At that time, business and labor could not agree on how many visas to grant low skilled workers who make the construction, agriculture and hotel and restaurant industries hum. The Chamber wanted cheap labor, but didn’t want workers to stay; unions were concerned about protecting citizens’ jobs. Soon after, reform collapsed.
This time the two groups have nurtured an unlikely alliance. “There has been a sea change,” says a labor source close to the discussions. Nudged by Graham and Schumer, the two lobbies released a set of shared principles, including one stating that Americans should get “first crack” at available jobs and that businesses should have the flexibility to hire to meet the demands of the market. But history could repeat itself again. The two sides call for a new federal agency charged with setting visa levels, but they have yet to agree on who’s eligible or how the new bureau will work. The issue of future flow has been a stubborn sticking point before. And it is as easy to imagine conservatives balking at efforts to create a new government agency as it is to foresee unions drawing a line at a small number of foreign workers.
(MORE: Committee to Save the GOP Says Pass Comprehensive Immigration Reform, Become Inclusive to Gays or Keep Losing)
Problem #3: House Republicans
Even if Senate negotiators can come up with a package to get 60 votes in the upper chamber, “the question continues to be, how does it get through the House?” says Frank Sharry, an expert on immigration reform. As in the Senate, a bipartisan cluster of eight representatives from across the ideological spectrum have been secretly meeting for months. Congressman Luis Gutierrez, an Illinois Democrat who has long been a leader on immigration reform, is full of praise for the new tack taken by his Republican counterparts. But, he acknowledges, “You still have to put those votes on the board, and that’s going to be a real, real test in the House of Representatives.”
For their part, Republicans say the party’s old dogma, which held that illegal immigrants should self-deport and then go to the back of the line, is not viable policy. Even many immigration hard-liners say they want to help shape comprehensive reform. “It’s time for us to belly up to the bar,” says Ted Poe, the Texas Republican who chairs the House immigration reform caucus. But for conservatives, amnesty remains a dirty word. “A bill that’s basically amnesty, that says you’re here and you’re going to be a citizen — those two things are not going to come out of this conservative House,” says Poe. Even citizenship is charged enough that Republican Senator Rand Paul, who gave a speech March 19 backing a path to legalization for undocumented immigrants, avoided using the term. Many House Republicans, including several in the Judiciary Committee through which a bill must pass, have a long history of antipathy to amnesty, and only a grassroots rebellion to fear as next year’s primaries approach.
Then there is the reality that even if Republicans were to be widely supportive of amnesty, very few of those new citizens are likely to abandon the Democratic Party anytime soon. “Republicans face a choice: do they ditch their principles and go all out in a failing attempt to outpander Democrats?” asks Rosemary Jenks, director of government relations at NumbersUSA, which advocates for lower immigration levels. “It’s becoming very clear to Republicans in Congress that this is not going to get them the Hispanic vote.”
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Problem #4: The Democrats
Little discussed but also looming is the possibility that Democrats drag their feet on reform. Liberals will balk if the path to citizenship is too long or too onerous, or if enforcement provisions are too rigid. Many conservatives also suspect that Democratic power brokers, despite their daily hammering of Republicans to get moving on immigration reform, would privately prefer to keep the issue as a cudgel than actually pass a law. Barack Obama “wants to make a bill come out of the Senate that is so far out there that it would never pass, so that he can blame us for not being compassionate and use the issue to take back the House in 2014,” says a House Republican. Even some liberals see this as a plausible scenario. “There’s always a lingering doubt in my mind,” admits one House Democrat. Obama knows that putting his fingerprints on the deal is an easy way to kill it; when a draft of his proposal leaked in the press, he called Republican negotiators individually to apologize. But if negotiations in Congress bog down, he may not be so hands off.
By all accounts, negotiators are making genuine progress toward a landmark deal that builds on a foundation laid during its last fumbled attempts. But lawmakers still have to thread a bill through a thicket of obstacles in a bitterly divided Congress. Sources close to the negotiations say they expect both chambers to introduce legislation in early April, giving Congress several months to haggle out a pact before members scatter for their summer recess. It sounds like plenty of time, but it’s not. Immigration will have to jockey for attention this spring with gun control, budgets and a potential grand bargain on tax and entitlement reform. Meanwhile, the human cost of the political stalemate is high. Each day, 1,400 undocumented immigrants are deported.
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For now, Washington is optimistic. “I believe we are finally at a moment where comprehensive reform is within our grasp,” Obama said in January. This is the best chance in a generation, but there are reasons a deal has been so hard to come by.
— With reporting by Massimo Calabresi