Can a Dusty Legislative Gambit Revive Immigration Reform?

Progressive activists want to use a so-called discharge petition to force a vote

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Speaker of the House John Boehner and Democratic leader Nancy Pelosi in Washington on May 15, 2013

Immigration reform is dying. The majority of voters want it. A broad bipartisan coalition pushed hard to enact it. The timing seemed propitious after the 2012 election. But all the economic arguments, policy papers and polling data marshaled by supporters cannot convince the Republicans who control the House. The best shot in a generation at rewriting U.S. immigration law looks destined to die with a whimper.

And yet there may still be a way to resuscitate reform efforts and force a vote on a path to citizenship. It involves a rarely used parliamentary tactic known as a discharge petition.

The legislative practice enables a simple majority of the House to force a vote on a bill, discharging the relevant committee from its responsibility to report it and circumventing the power of leadership, which controls the floor. Discharge petitions are rare. The tactic was successfully employed just 26 times between 1931 and 2002, when it was most recently leveraged to win a vote on the McCain-Feingold campaign-finance-reform bill. But a cadre of progressive activists, including powerful labor groups like the AFL-CIO and the pro-reform organization America’s Voice, have zeroed in on it as perhaps the best way to sidestep Speaker John Boehner‘s insistence that any immigration bill brought to the floor have the support of a majority of the GOP conference.

(MORE: Exclusive: RNC Ups Immigration-Reform Pressure on Congressional GOP — but Rejects Path to Citizenship)

“Certainly if the House fails to pass a bill with a path to citizenship and strong worker protections, then the discharge petition has to be an option for us to pursue,” says Tom Snyder, manager of the AFL-CIO citizenship campaign.

The argument that advocates should resort to this dusty legislative gambit is a sign of how sharply the odds of comprehensive reform have fallen. Once bullish, Democratic sources now admit the tapestry of forces aligned behind the Senate bill — including business lobbies, evangelicals, Silicon Valley donors and senior GOP strategists — won’t sway House Republicans. While House leaders have said several immigration proposals will receive individual votes this fall, a large faction of Republicans are loath to pass anything at all, lest Democrats use the ensuing conference committee as a vehicle to jam through provisions they oppose.

Hence the emergence of the discharge petition as an option. With Republicans content to let immigration languish, and a tangle of nasty budget disputes likely to overshadow it, a petition is one plausible mechanism to force the issue. “One of the biggest threats we face is that Republicans will slow-walk immigration reform to death,” Frank Sharry of America’s Voice told the Washington Post. “This is a way to counter that.”

To activate a petition, reform advocates would have to introduce a bill in the House. The legislation would then need to “ripen” for 30 legislative days — or until November, given Congress‘s light work schedule this fall. At that point, supporters would try to cobble together the 218 required signatures to force a vote, using a coalition composed of nearly all Democrats and perhaps up to 20 Republicans.

It is not clear whether the vehicle for the petition would be the bipartisan bill that passed in the Senate, which many Democrats consider flawed. House Democrats considered introducing the measure before scattering for August recess, and decided against it — a sign that many members remain cool to the notion of a parliamentary workaround.

(MORE: Immigration Debate Brings Strange Bedfellows — and New Hope — to Washington)

Others still feel the bipartisan group charged with devising a comprehensive House bill remains the best bet to thread an immigration overhaul through the chamber. Many Democrats have written off the group’s labors as a fool’s errand, since it has been reportedly on the verge of releasing its blueprint for six months now. Yet “it’s the best chance we have at getting a comprehensive House bill,” says a Democratic leadership aide. “Introducing the Senate bill could undermine that effort.”

In addition, Democrats want the depth of the GOP’s obstructionism to become clear to voters. “The discharge petition is a tool in the arsenal for the pro-reform side, but it is not ripe yet,” says another Democratic aide briefed on the issue. “The impasse has to be reached before a discharge petition gets traction.”

Historically, discharge petitions have been viewed as a rebuke to House leaders. It’s possible that even the handful of Republicans amenable to comprehensive immigration reform would balk at employing the tactic out of deference to Boehner. Jeff Denham, a California Republican who has said he would support a pathway to citizenship under certain terms, said in a statement to TIME that he “absolutely will not sign a discharge petition.”

Boehner has also been something of a sphinx about his own immigration convictions. Plenty of observers, Republican and Democrat alike, suspect he sides with the majority of GOP senior strategists who believe the party needs a bill to repair its relationship with the nation’s fastest-growing demographic. If that’s true, the argument goes, Boehner might be relieved for a path to passage to materialize without his overt blessing. At the same time, it’s hard to see how Republicans would reap much credit.

It may seem hard to fathom that the momentum to overhaul the broken immigration system has been snuffed out so swiftly. But Democrats who sounded triumphant just weeks ago now privately concede the effort is dying, and a legislative Hail Mary may be the last shot to revive it.

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