By Russell Berman - 11/12/13 06:00 AM EST
This article is the first of a two-part series on immigration.
Rep. Luis Gutiérrez’s phone was ringing. It was President Obama’s chief of staff.
Gutiérrez (D-Ill.) was part of a bipartisan group of lawmakers in the middle of May that was on the cusp of a breakthrough agreement on immigration reform.
Denis McDonough told Gutiérrez that Obama opposed a key concession that Democratic negotiators had made to House Republicans.
“Stop the progress on the House bill,” Gutiérrez described Schumer as saying. “I want you to stop. You are damaging the Senate proposal moving forward.”
The White House and Senate Democrats did not want a more conservative House plan — designed to pass muster with a Republican majority — to emerge before the Gang of Eight’s proposal had passed on the Senate floor.
Lacking support from party leaders, Democrats in the House group suffered from internal divisions over how far to bend in their bid to reach a deal that could set up a compromise with the more favorable Senate bill.
Tempers flared frequently between Gutiérrez, the colorful Chicago lawmaker revered by immigration advocates, and Rep. Xavier Becerra (Calif.), a Los Angeles liberal who had risen up the ranks of the Democratic leadership.
Immigration reform is widely seen as dead in this Congress, and the finger-pointing has already started.
Both parties are responsible for the effort’s demise.
Speaker John Boehner (R-Ohio), for example, refused pleas from GOP negotiators for a commitment to move the House bill. Republicans could never give Democrats a clear sense of how many GOP lawmakers might support the proposal if it ever reached the floor.
Inside the House Group of Eight, momentum toward a deal slowed as negotiations became bogged down in a dispute over healthcare. By the end of May, the group had lost its self-described conservative hardliner, Rep. Raúl Labrador (R-Idaho), who quit despite pleas from top Republicans, including Rep. Paul Ryan (Wis.), that he stay at the table.
The remaining seven met through the summer, but their moment had passed.
“I think Raúl figured that no matter what happened, we weren’t going to make a deal,” said Gutiérrez, one of four House Democrats in the group. “When he left, everybody said we were still alive, but I didn’t think we were.”
The group’s collapse after more than four years of talks left the House without a bipartisan immigration proposal to rival the Senate bill that passed in June, and a year after Obama’s reelection, the prospects for his top second-term domestic priority are bleak.
Abandoning the legislation in September, Texas Reps. Sam Johnson and John Carter cited a growing lack of trust in the Obama administration’s commitment to implementing the law.
But in a series of interviews with The Hill over the past two months, Democratic and Republican negotiators said the group’s failure stemmed from divisions among Democrats over strategy and policy, as well as Boehner’s refusal to put his weight behind the bill and help steer it through the House.
This account is drawn from extensive interviews with six members of the group and several of their advisers. Some spoke on the condition of anonymity to reconstruct, for the first time, private negotiations that occurred over several years.
ROLLING THE DICE
Leaders in both parties, including Boehner, once had high hopes for the group, which formed before Obama took office in 2009. The Speaker had made clear in public and in private that the House needed to tackle immigration reform after the 2012 election, and he told Republicans he thought the group represented the chamber’s best chance for success.
Ryan, the popular House GOP budget chief and 2012 vice presidential nominee, worked with members of the group behind the scenes and bolstered it publicly with words of support at critical moments.
The group began under humble auspices in 2008, when Becerra approached Johnson, a deep-red conservative and a colleague on the Ways and Means Committee.
Johnson, a respected former POW in Vietnam, had served as a founding member and chairman of the conservative Republican Study Committee years earlier, and publicly he gave no indication that he would be a deal-maker on immigration. To this day, Johnson’s website boasts that he has “zero tolerance for those who break the rules” and supports an “enforcement-first” policy.
“If you are here illegally, you ought to be deported,” Johnson says in a quote atop the website’s immigration section.
“We vote almost the opposite of each other,” Becerra noted.
But during those early private talks they found common ground on immigration. “Do we want to roll the dice and expand?” Becerra recalled them asking each other. “So we said yes.”
Gutiérrez had been a co-sponsor of bipartisan House legislation during the last major immigration push in 2006-2007. He attended early meetings of the new group, but when he saw the discussions moving to the right, he bolted.
At its peak, the group included more than 20 members. Its hallmark was secrecy.
Meeting over take-out dinners in House conference rooms, the members kept their deliberations hidden not just from the public, but also from the Obama White House.
While Democratic negotiators occasionally updated senior officials and the president was aware of the group, Democrats refused to tell the White House which Republicans were at the table. And even after they drafted and reviewed a 500-page bill earlier this year, lawmakers never showed it to senior White House officials.
In the early months of the Obama presidency, immigration reform fell down the list of priorities, and when the political environment turned toxic over healthcare, Democrats pulled back.
When Republicans won the House majority in the wave election of 2010, the bill was shelved.
“Maybe we should just lay low for a while,” Becerra said he told Johnson.
‘ALMOST ALL OF THE MEMBERS WERE GONE’
For the next two years, members of the group had only informal conversations, but after Obama won a second term in November 2012, he signaled that immigration reform would be a top priority in 2013.
Across the Capitol, Schumer and Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.) reunited and formed what would be become known as the Gang of Eight.
On the House side, Becerra had become the chairman of the Democratic Caucus, the fourth-ranking leadership post. He once again approached Johnson, but they quickly recognized a more immediate challenge.
“Almost all of the members were gone,” Becerra said.
Whether by retirement or defeat, several of the negotiators had left the House, and each side went searching for replacements. On the Democratic side, Becerra and Rep. Zoe Lofgren (Calif.) remained. The Republicans had Carter, Johnson and Rep. Mario Diaz-Balart (Fla.), whose brother, Lincoln, was an original member of the group.
To replace the Democrats, Becerra recruited Rep. John Yarmuth (D-Ky.) and sounded out Gutiérrez, who returned, reluctantly, with a demand that the group soften a provision requiring immigrants in the country illegally to appear in a federal courtroom before they could gain probationary legal status.
The Republicans brought in Labrador, a former immigration attorney who had, in just one term, built a reputation as a conservative firebrand.
An early order of business was changing the initial process for legalization that Carter had crafted.
Under the new process, immigrants would appear instead in an immigration court, where they would formally receive an order of probation to defer the adjudication of their deportation proceeding. Under the terms of probation, they would have to take a number of steps, including the payment of fines, learning English and obeying the law, and they would not be eligible to apply for green cards for at least a decade.
“We had agreed on a process to help transition the undocumented that was rigorous,” Becerra said. “It was tough, but I thought it was fair. It wasn’t an effort to try to treat them as criminals.”
The negotiators operated under the assumption that of the 11 million estimated illegal immigrants now in the U.S., a sizable portion would not make it through the process of legalization.
“We knew that many of them would not pass the test, but we felt that was fair,” Becerra said.
RACING THE SENATE
As winter turned to spring in 2013, the House negotiators — still working nominally in secret — were racing against their much more public counterparts in the Senate to lay down the first marker on immigration reform.
Once the members had settled on a path to legalization, the talks advanced quickly, and some in the group wanted to go public with a framework for legislation, if not a complete bill.
“That was a consideration,” Becerra said.
Ultimately, the Senate Gang of Eight finished first, unveiling its 844-page bill with fanfare on April 16.
The concessions made by Schumer and fellow Democratic Sens. Dick Durbin (Ill.) Robert Menendez (N.J.) and Michael Bennet (Colo.), spilled over into the House talks, where Democrats were forced to drop demands for provisions favored by liberals, such as a diversity visa program prized by the Congressional Black Caucus and by the Congressional Asian Pacific American Caucus.
“That set a bar,” Yarmuth said of the Senate bill. “We understood that we could not be, whatever provision it was, could not be to the left of the Senate.”
A HARD TRIGGER
To win conservative support, Republicans demanded a “hard trigger” to tie the path to legalization for immigrants to progress in implementing either the border security or interior enforcement parts of the bill. One idea that Democrats rejected was to give immigration enforcement power to state and local law authorities, similar to controversial Arizona legislation that the Supreme Court had partially invalidated.
Democrats instead agreed to a trigger on the employment verification system, known as E-Verify, which could have resulted in immigrants losing their probationary legal status if the new program was not implemented within five years.
In interviews, Democrats said they backed the proposal based on assurances from the White House that the E-Verify program would take a maximum of three years to complete. That would leave as many as four years of extra time, because the clock would not start until the first immigrants applied for probationary status one or two years after enactment of the bill.
Still, Becerra objected to the provision and insisted that the full Democratic leadership weigh in.
“Somebody doesn’t implement E-Verify properly and they’re told, ‘We’re deporting you now.’ I did not agree with that,” he said in an interview.
When the Democrats in the group met with the leadership, House Minority Leader Nancy Pelosi (D-Calif.) gave her approval of the concession, though she went around the room and asked each of the negotiators if they agreed. Gutiérrez, Lofgren and Yarmuth all said yes. Becerra said no.
Gutiérrez confronted Becerra, pointing out that while Becerra was balking at the E-Verify provision as unfair, he had been the one to agree, years earlier, to a legalization path that Gutiérrez had characterized as the “criminalization” of immigrants in the country illegally.
The E-Verify trigger remained in the bill.
“I lost. I lost,” Becerra said.
THE WHITE HOUSE, AND SCHUMER, COME CALLING
Neither the White House nor Senate Democrats were happy. The Senate bill contained no such hard trigger, and with that proposal advancing steadily toward a floor vote, party leaders worried that the introduction of a more conservative House proposal would scare off Senate Republicans — particularly Sen. Marco Rubio (Fla.) — or cause them to demand similar concessions in the Gang of Eight plan.
“If this proposal had moved forward before the Senate bill passed, there would have been no bill in the House, and no bill in the Senate, period,” a Senate Democratic aide said.
McDonough called Gutiérrez and Lofgren to voice the president’s opposition. Schumer and other Senate Democrats followed suit, urging them, at the very least, to hold off on any announcement before the Senate bill made it off the floor.
“The request wasn’t that the House never move forward, the request was that the House wait,” the Senate aide said. “Democratic senators, the White House, and Leader Pelosi believed that pushing a proposal to the right of the Senate bill before it had even been passed would have sent Republican senators running from the bipartisan process, and would have all but eliminated any hopes of having a path to citizenship at the end of the day.”
The House Democrats refused to make that commitment, but despite pressure from Republicans — including Boehner — to speed up their bill, the negotiations dragged through May and June.
Schumer declined to comment for this article.
Multiple Democrats in the House group said they understood the concerns of McDonough and Schumer, but said the White House never took seriously their warnings that the House GOP would not accept the Senate bill and that the lower chamber needed its own bill to set up a conference committee.
“It is clear to me that there was no strategy on the White House’s part post-Senate victory. Because the Senate victory was the strategy,” Gutiérrez said.
In an interview, the director of Obama’s Domestic Policy Council, Cecilia Muñoz, would not comment on the calls from McDonough, but said the White House needed to be flexible as it dealt with two very different chambers of Congress.
“Our strategy has been focused on getting the best possible vehicles out of the Senate and the House at the earliest possible date,” she said. “That’s been true for a long time and it continues to be true. That also requires some flexibility and fluidity given the dynamics in each chamber.”
While the White House worked with both Democratic and Republican members of the Senate Gang, its involvement with the House group was more limited and less formal, in part because Republicans did not want to be seen as negotiating with Obama.
“As we did with the Senate group, we tried very hard to be useful without being heavy handed,” Muñoz said. “And the signals we were getting from the House group was that we needed to give them the space to do their work. That’s what we did.”
See Wednesday’s edition for Part 2: The Republicans back out.