It was a fiasco -- the worst possible result: A terribly flawed bill that, of all the GOP's Senate superstars, only Marco Rubio could support. All the other rising stars -- Ted Cruz, Rand Paul and John Thune -- voted "no," as did Leader McConnell and Whip Cornyn. Worse yet, the jam down created a toxic environment around immigration reform, greatly complicating if not dooming the effort in the House for this session.
For reasons I discussed with Bill Kristol (transcript here) and Mark Steyn (transcript here) on the day of the vote, the Speaker needs to find a way to distance the House from the Senate train wreck. Perhaps a quick vote down would be the best way, or a "no" vote on the same day the House passes its own "first step" border security bill. Who knows? As Robert Costa notes this morning, the Speaker plays his own game. But the Senate bill is political poison, and the Speaker and the Leader have no intention of surrendering their majority by embracing this fiasco of a bill.
How much of a fiasco? Read my interview from Wednesday with a very good guy and a serious conservative, Senator John Hoeven of North Dakota. It is pretty clear he got terrible advice on how statutes actually work when interpreted by the courts, and worse advice on what the fence meant to border security conservatives. We too often assume that legislators actually know how the laws they think they are drafting will actually work. There wasn't a member of Congress in the early '70s who knew how the Endangered Species Act, the Clean Water Act, and Clean Air Acts would turn out to be twisted engines of anti-growth extremism, and as the Hoeven interview made clear, one of the authors of the key amendment actually thought he was mandating a fence that would work when he was doing exactly the opposite.
The job of immigration reform now falls to House Judiciary Chair Goodlatte and some key House members, among them Raul Labrador. But with proponents of smart, comprehensive immigration reform losing at half-time, here are ten key things to keep in mind -- the first five on the substance of the subject, the latter five on the politics.
1. The need for real reform is enormous for all the reasons Senator Marco Rubio has repeatedly stated, among them the national security issues of porous borders and millions of illegal immigrants already in the country, with more headed this way.
2. The humanitarian issue is real and pressing -- Catholics, evangelicals and other people of faith are pressing for relief for the millions of honest, hard-working illegal immigrants living in fear of deportation and separation from their families. We should continue to press for serious legislation while realizing that many opponents of the Senate bill share these concerns and wish only to solve these problems. Without real border security, the humanitarian situation will only deteriorate further. The solution begins with a strong fence.
3. The connection between Obamacare and the regularization process is real -- and it needs a true remedy, not a glossing over. If the illegal immigrant population is regularized, it cannot be eligible for Obamacare (the cost would be staggering). Neither should this ineligibility become a reason for employers to prefer the newly regularized over citizens and legal residents with green cards.
4. The demand for a fence is real, and it must be mandated with specific language. It must extend across tribal lands where necessary, it must contain citizen standing to sue for enforcement, it must trump all contrary laws which contain citizen standing provisions that could be used to block it, and it must have detailed construction specs and mapping. The fence is the first line of defense against a recurrence of this problem, not pie-in-the-sky alleged technology breakthroughs, no matter their detail. The new technology is very nice, but double-layered fencing works where it is built, so build it across vast stretches of the 2,000 mile border. There is nothing sacred about the 700 miles used in the 2006 law that has been ignored. There has never been an explanation for the number; it is a classic Beltway convention without any substance behind it. Put in writing on a map where and why the double-layered fencing will be built and the where and why it won't be built. In no other business in the world would such sloppiness on such a key issue be tolerated, but the Senate just waived the whole thing off and then proposed to empower Janet Napolitano to waive even more of it off. The very worst part of the very bad Senate bill was Section 5(b). Read it and weep over the fact that either (a) the GOP staff lawyers are so bad or (b) the Democratic staff lawyers are so good.
5. No bill is better than a terrible bill, or even a badly flawed bill, or even a decent bill without a fence that will simply recreate the problem with bigger numbers over a shorter period of time.
6. Senator Marco Rubio remains a GOP superstar who will be in much demand in 2014 and a very serious contender for the GOP presidential nomination if he chooses to be. And his candidacy will be greatly enhanced by this. He has marked out his reformist credentials on a key issue and can go as conservative as he wants to on every other issue. Thanks to his immigration efforts, the media won't be able to paint him as an extremist as it is trying to do with Ted Cruz right now. The immunization process is painful, but Rubio's a pretty tough character. In addition, the noise from the extreme wing of the anti-immigration reform movement is wildly amplified by the media. Here's a test: Ask any elected official you know if they'd like to have Senator Rubio headline a fundraiser for them next month. They will all say "Yes!" Almost everybody in the GOP still loves Rubio, but many disagree with him on this key issue. Big deal. Recall that W had the same issue with things like ports and immigration reform but never lost the GOP base.
7. Senators Ted Cruz, Rand Paul, and John Thune all helped their national ambitions as well, should they decide to pursue them, because they all participated in a very smart way in the Senate debate. Cruz was an eloquent, precise lawyer with style and energy. Paul kept up his campaign to be taken seriously as a legislator known for candor and responsiveness. Thune offered the sort of simple, clear border fence amendment that appeals to those of us who long for legislators to do their jobs with precision and transparency, not with talking points. Along with Governors Christie, Jindal, Kasich, and Walker, the GOP has a deep bench of potential nominees for 2016. None have been damaged by this debate.
8. No House GOP member at all afraid of a primary can support the Senate bill. Period. That's why it was wildly reckless as a matter of party politics for GOP senators to push it forward without a real fence. The border fence remains the physical expression of a national resolve to stop not just illegal immigration, but also terrorism and trans-national crime. Refusing to build it -- turning their collective back on the clearest part of GOP agreement -- was hurtful to the House GOP in a way that borders on contempt.
9. Read Jonathan Alter's new book The Center Holds (or at least my interview with Alter from Thursday's show) to discover details of the 2012 campaign in Spanish language media. Ignore that "campaign-within-a-campaign" if you will, but understand this: There are states in play in 2016 that will be decided based on what happens between now and the fall of 2015 on immigration reform. The Supreme Court, which figured so prominently in this week's headlines, will be fundamentally recast by 2020. If the GOP wants to compete in 2016 --if it cares about the country's role in the world and the make-up of SCOTUS -- it must get immigration reform done.
10. But for the politics of the immigration reform to be good, the substance of immigration reform must be great, not terribly flawed as it is in the Senate bill.
That's where we are at the close of the first chapter of the immigration reform debate, one written largely by Chuck Schumer. (Even most of the paragraphs allegedly written by Republicans were ghosted by Schumer's troops.) Senator Schumer is very, very smart. Perhaps the House Republicans will find a way out of this corner into which their Senate colleagues have sent them, but that will require a great deal more innovation and energy than they have shown thus far.