No one doubts that momentum has quickly developed for a deal on comprehensive immigration reform and border security. But by rushing to get a deal done and working behind closed doors, Congress is cravenly trying to sneak reform through without a full hearing before the American public.
After a poor election showing, as well as a campaign that revealed serious demographic issues for Republicans in future contests, the GOP appears ready to make some compromises on previous hard-line positions regarding normalization for the estimated 11 million illegal immigrants living in the U.S. Democrats, sensing an opportunity to burnish the legacies of both President Barack Obama and Senate Majority Leader Harry Reid (D-Nev.), have engaged in both quiet and stagy bipartisanship to keep the political winds at the back of comprehensive reform.
This weekend brought news of breakthroughs in both efforts. On the stagy side, Sen. Chuck Schumer (D-N.Y.) announced on ABC News that the bipartisan Gang of Eight had reached a "substantive agreement" on a reform package. "We have to draft the legislation," Schumer warned, but added that the group had reached agreement in principle on "all the major pieces now."
On CNN, another Gang of Eight member also announced a conceptual agreement. "It will be rolled out next week," Sen. Lindsey Graham (R-S.C.) promised. "We've got to write the legislation," Graham added, "but 2013, I hope, will be the year that we pass bipartisan immigration reform."
On the quiet front, a bipartisan effort in the House also appears close to success. Members of this group have kept a much lower profile, since every one of its members will have to face voters next year, and a compromise agreement on this issue could be worse for Republican and Democratic incumbents than a swing and a miss. Politico's Jake Sherman reports that this group has also found enough common ground to come to a conceptual agreement, although issues such as covering the costs of border security might prove tricky to resolve in legislative language. Notably, not a single quote appears in the Politico article, which should give readers an idea of how potentially toxic this issue can be for both parties.
Two developments appear to have given the efforts in both chambers more steam. First, Schumer finally gave ground publicly on the need for measurable success in border-security efforts as a trigger for normalization. That runs counter to President Obama's statement during an interview with Telemundo last week, in which he appeared to suggest the two measures should be implemented separately. "There needs to be a certain path for how people can get legal in this country," Obama insisted, "even as we also work on these strong border security issues." At the same time, though, Obama was curiously vague on the timeline for normalization, as Telemundo noted in its report. That may have foreshadowed the compromise position that Schumer publicly embraced on Sunday.
Perhaps more importantly, two interest groups normally at loggerheads on immigration policy reportedly found their own common ground. The business community wants a guest-worker program in order to keep labor costs low, while the unions want immigration restricted to keep compensation higher for its workers. Over the weekend, two of the biggest organizations in play reached a compromise on this point that will take pressure off the politicians looking to push reform across the finish line. The U.S. Chamber of Commerce and the AFL-CIO agreed on a proposal to support a proposed W-Visa program that would allow 200,000 workers a year to take janitorial, construction, hospitality, and farm jobs. Schumer pointed out that this question has been one of the big deal-breakers on immigration reform, "but not this time."
With all this momentum, and all this rare bipartisan spirit, what could slow down a rare success story in Washington? Perhaps the realization that neither political party has yet to agree on legislative language — and that some senators might want to avoid a public debate that could damage them politically.
The first hint of this came soon after Schumer and Graham claimed victory on behalf of the Gang of Eight. One of their colleagues in the group, Sen. Marco Rubio (R-Fla.), immediately dashed cold water on the celebration. In a press release titled "NO FINAL AGREEMENT ON IMMIGRATION LEGISLATION YET" (all caps in the original), Rubio pointed out the obvious — there cannot be an agreement on legislation without at least seeing the legislative language first, and it doesn't exist in either chamber at this moment. Even in their arguably early celebrations, both Schumer and Graham conceded as much.
Rubio went beyond that point, however, to warn about the next steps in the process. While the House group plans to offer the eventual legislative language in three separate committees, Rubio suggested that the Gang of Eight was considering bypassing committees and hearings altogether. "That legislation will only be a starting point," Rubio warned. "We will need a healthy public debate that includes committee hearings and the opportunity for other senators to improve our legislation with their own amendments." Rubio hailed the work of the eight senators from seven states, but added, "Arriving at a final product will require it to be properly submitted for the American people's consideration, through the other 92 senators from 43 states that weren't part of this initial drafting process. In order to succeed, this process cannot be rushed or done in secret."
The fact that this needs to be said speaks volumes about the breakdown of public access to congressional action. For the past four years, the debate and production of the most basic of all legislative efforts — the federal budget — has been shielded from public view, thanks to the Senate's refusal to work within normal order. Instead, the public has had to endure artificial crisis after crisis while a few politicians make all the decisions behind closed doors. Their agreements are then rushed through in temporary measures or continuing resolutions.
Critics claimed that these "fiscal cliffs" and episodes of brinksmanship demonstrate the corrosive nature of partisan bitterness and division, since the two parties could not even conduct the most basic of business together. But now we have what appears to be bipartisan agreement on one of the most contentious issues facing the U.S. over the last decade or more — and Rubio's statement suggests that the negotiators don't want any sunlight on cooperation, either. It shows that the problem may not be bitter partisanship after all, but a lack of intestinal fortitude among our governing class.
This lack of transparency and public involvement is much worse for self-government than a lack of resolution on the immigration issue. While it's easy to understand the political risks of taking public positions on immigration reform, and to appreciate how fragile any eventual agreement would be, the impulse of Congress to hide its work and then rush it through an ill-informed vote is the worst legacy of the Senate's four-year abdication of its responsibilities. Legislation as far-reaching and important as immigration reform and border security deserves a public hearing and input from elected officials of all 50 states, not just a self-selected clique of elites enabled by public officials anxious to dodge responsibility for the outcome.