Coming Senate Shenanigans on DACA?

On Monday at 5:30 p.m., all eyes will be on the Senate, when it takes its first procedural vote to open debate on an immigration bill.

What’s in the bill? Nothing, yet. Majority Leader Mitch McConnell (R-Ky.) has brought an empty shell bill to the floor and committed to an amendment process that is “fair to all sides” as a way to determine what policies will constitute the final bill.

On its face this may sound acceptable. However, for those who prioritize American sovereignty, citizenship and secure borders, there is still much about which they should be wary.

Next week’s debate will be unpredictable and likely far less “free-wheeling” than it sounds in the descriptions. Given all the forces at work—including McConnell’s acknowledgment that all amendments considered to the bill will have to overcome the high 60-vote hurdle—here are three possible scenarios for how this debate ends up.

1. After a few amendments are offered and fail, McConnell emerges with his own amnesty “compromise.” Given the high rate of secret deal making in the modern Senate, it is possible that this announced open process is just for show, while the real deal is being made in the Leader’s office. The groundwork for this outcome is laid after several amendments are considered and fail. The “process” appears to be stalled (though it’s not, since this was the plan, anyway), and senators put on a show of panic. At this point, it’s possible that McConnell and Democrat Leader Chuck Schumer (D-N.Y.) come to the floor with a deal negotiated entirely by themselves and a handful of others, drop it on the Senate floor without warning, and demand its passage before the rest of the Senate even has time to read it. But because senators are so relieved that someone has a solution, they’ll pass it, and any senator seeking to amend the compromise will be roundly shunned. (For a case example, see what happened to Sen. Rand Paul (R-Ky.) last week when he tried to amend the GOP’s trillion-dollar spending deal).

Undoubtedly, a McConnell-Schumer compromise would reflect substantial concessions to Democrats on amnesty, as the party has made clear that they’re after far more than simple legal relief for the 700,000 recipients of the Deferred Action for Childhood Arrivals (DACA) program. If the Senate proceeds with this route, it should become obvious to observers that Republicans in Congress are taking the path of least resistance—pretending to have a debate, while orchestrating a secret deal that they intended to pass all along.

2. Senators toss everything into one giant amendment proposal in an effort to get 60 votes. Though McConnell has committed himself to an open process, his requirement that all amendments be considered at a 60-vote threshold, rather than at a simple majority, actually makes the process quite restrictive. Moreover, it encourages the creation of massive proposals where members toss in all kinds of bad policy, and then say they “have to” pass it because “nothing else gets 60-votes.

This 60-vote excuse is a sham. Individual senators, from the Leader on down, have far more authority to force consideration of amendments at 51-votes than they like to admit. If Democrats decide to filibuster, so what? The GOP also has the tools to force Democrats into a real, talking filibuster that requires Democrats to work very, very hard to make their point. If Democrats want to prioritize illegal immigrants over American citizens, then Republicans should make them do it in the most onerous and public way possible. Yet, by conceding to 60-votes right off the bat, McConnell is doing nothing less than giving in to Democrats before they even mount an opposition. This has become the hallmark of the McConnell Senate. Rather than doing the work necessary to overcome the 60-vote filibuster, leaders in the Senate would rather use it as an excuse to pass poor policy.

3. No amendments are able to meet a 60-vote threshold and the entire process collapses, causing a “do something” panic. While this could be the most preferable outcome for those who don’t trust the Senate to prioritize border security, citizenship, and sovereignty, it also poses a danger. The Congress is currently operating under the idea that it must meet a March 5 deadline to address the DACA issue. In reality, there is no deadline. When or how DACA expires is solely up to President Trump. Moreover, a January court order has allowed for DACA recipients to apply for two-year renewal of DACA protection. So, regardless of what Congress does or doesn’t do, the “DACA kids” aren’t going anywhere. (It’s also worth pointing out that most DACA recipients aren’t kids.)

However, false deadlines like these are dangerous, as failing to meet them creates a panic in Congress to “do something now.” Invariably, “doing something” results in principles being sacrificed and policy priorities being left behind, all borne out of a sense of urgency to meet a deadline that, in reality, doesn’t exist.

The Senate should be aware that Americans will be carefully watching them next week. This debate is not just about “what can get 60 votes,” as McConnell has said. Rather, what Senate Republicans do on the floor next week—or, critically, what they decide not to do—will speak volumes about their commitment to sovereignty, citizenship, and the rule of law.

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About Rachel Bovard

Rachel Bovard is senior director of policy at the Conservative Partnership Institute and Senior Advisor to the Internet Accountability Project. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.