The manner in which the Gang of Eight’s S.744 reached the floor of the Senate included a mix of both open democracy and behind-the-doors secrecy.


Regardless of the merits of the omnibus immigration bill (which many find wanting) the procedures used to get the bill to, and through, the Senate Judiciary Committee were both interesting and uneven. I have been following the bill for weeks and watched many hours of the Committee’s mark-up, during which it considered, at least nominally, hundreds of amendments.

You might say that there were three phases of the bill’s history so far.

Phase I: Conspiracy

The writing of legislation is routinely done by a single member, a quiet process that concludes with its formal introduction. And then the advocacy and negotiations begin.

In the case of S.744, much of both processes took place secretly as the four Democrats and the four Republicans hashed out their differences and reached their compromises privately before the bill was formally introduced.

The major issues, such as the terms of amnesty for illegal aliens and the expansion of various foreign worker programs, were thrashed out among the eight, with the Democrats pushing for lenient terms for the illegals and the Republicans seeking lenient terms for the foreign-worker-using corporations. They then worked out an 800-odd page, detailed document granting concessions to both camps — and none to those who worry about too many numbers.

The conspiracy phase ended — or, more accurately, paused — with the introduction of the bill. The original text can be seen here. A modified version of the same bill by the same authors was released soon thereafter, and it was this version that was amended in committee.

Phase II: Democracy

Then we had a burst of democracy.

After the versions of S.744 became public, the full Senate Judiciary Committee held hearings on the bill, and later had four long days of “mark-ups” in which amendments were considered. The formal title of these sessions, which is rarely used in Washington, is “Executive Business Meeting”, which is misleading because it sounds as if they are held behind closed doors (as they were years ago).

These were, in the case of S.744, open sessions, screened live (and recorded) and thus available to anyone with a computer (see here).

I would not say that these sessions were great theater, although there were moments of tension and humor; one needed to have a copy of the long bill on the computer screen, as well as the amendments, to understand the discussion. Given the highly technical nature of most of the discussion it was sometimes hard to follow.

The Senate Judiciary Committee has 18 members, 10 Democrats and eight Republicans, and is presided over by one of the most senior members of Congress, Pat Leahy (D-Vt.), a staunch liberal and pro-immigration person. Sen. Chuck Grassley (R-Iowa) is the ranking Republican and is one of the major critics of S.744.

Sen. Leahy, while encouraging speed from time to time, did not rush the sessions; when an amendment was before the committee, he allowed everyone who wanted to talk, and to talk at some length. Sen. Jeff Sessions (R-Ala.), the other vocal opponent of S.744, spoke on just about every amendment, and often read from news stories and academic studies to prove his points.

Some amendments were disposed of by voice votes, but if a member wanted a roll call of the committee it was granted, and there were many of these. The disposition of the amendments was recorded overnight on the committee’s website, and the full list of the proposed amendments and their dispositions can be seen here.

In addition to amendments acted on by the committee, there were other amendments more or less offered for the record that were not put before the committee by their sponsors. Another footnote: There is often the notation “VV” after some of the amendments. While this looks like “W” on the website it is really V V, for voice vote, with the letters jammed together.

There are also notations of “second degree” amendments, but no “third degree” ones. A “second degree” amendment is merely an amendment of an existing amendment. (Capitol Hill, like other inward-looking societies, has its own language.)

In general terms, the text of S.744 was largely untouched by the amendment process, open though it was. There are two Republican and two Democratic members of the Gang of Eight serving on the Judiciary Committee — Lindsay Graham (R-S.C.), Jeff Flake (R-Ariz.), Richard Durbin (D-Ill.), and Chuck Schumer (D-N.Y.). All four of them united behind the text of S.744, and they were routinely supported by all the rest of the Democrats leading to many 12-6 votes in favor of the bill as it stood. On many other votes the division was 16-2, with only senators Grassley and Sessions voting for the restrictionist position.

The democracy part of the process came to a crashing halt half way through the fourth and final day of mark-ups, however, when another off-stage-produced legislative package, like the original S.744 itself, was thrust on the committee.

Phase III: Conspiracy, Again

On Tuesday, May 21, at about four in the afternoon of the last mark-up day, Sen. Orrin Hatch (R-Utah), together with Sen. Schumer, introduced a revised version of Hatch Amendment No. 10.

This was a 19-page omnibus (i.e., multiple-elements) amendment designed to do two things: 1) make it easier for big employers to bring still more H-1B workers into the country; and 2) to cause Hatch to vote in committee, and hopefully on the floor, for S.744 thus amended. (The degree that the Democrats sold out protections for U.S. workers in this amendment in order to get Hatch to vote for legalization was remarkable and shocking.)

According to comments at the mark-up, the text of the amendment had been made available to the senators at 11:40 that morning (in the middle of the hearing) and it had been worked out between Gang of Eight members and Senator Hatch. I could not get a copy of Hatch No. 10 on the Internet until the next day. The lack of notice and the complexity of some parts of Hatch No. 10 subdued the debate, which was exactly what the Gang of Eight must have wanted.

The Hatch/Schumer Amendment was approved that day, 16-2, and the bill, thus amended, was sent to the Floor of the Senate still later in the day, 13-5, as reported in an earlier blog.

What’s Next? The next big phase will see S.744 go to the floor of the Senate, where there will be more open exchanges, and more (probably futile) attempts to amend the Gang of Eight’s handiwork. Thus another round of democracy, in the continuing roller-coaster of the political process.

If some immigration legislation passes both the Senate and the House, then we will be in for an ultimate round of conspiracy — the often murky maneuvers of a joint Senate-House Conference Committee, where lobbyists thrive.

But perhaps it will not get that far.

Conference committees, incidentally, are, for better or for worse, a distinctly American invention. If you have only one chamber in your legislature, you don’t need them.

 Most democracies have a single, all-powerful legislative chamber, as does Nebraska, plus the territories of Guam and the U.S. Virgin Islands. The other 49 states have bicameral legislatures, and hence conference committees or the equivalent thereof.

David North

The Center for Immigration Studies is an independent, non-partisan, non-profit, research organization. Since our founding in 1985, we have pursued a single mission – providing immigration policymakers, the academic community, news media, and concerned citizens with reliable information about the social, economic, environmental, security, and fiscal consequences of legal and illegal immigration into the United States.