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Amnesty: Dangers of (Skipping) Conference

Jul 31, 2013

Tomorrow, lawmakers will head home for their five-week August recess. Pro-amnesty advocates, who have been working with Republicans like Sen. John McCain (R-AZ), are planning rallies and protests throughout August. At the same time, the White House and Sen. Chuck Schumer (D-NY) are pushing business groups, often thought of as traditional Republican allies, to weigh in with members back home. To say the pro-amnesty movement is made of strange political bedfellows is an understatement.

But this is all theatrics. As the Washington Post and National Journal explained earlier this week, there is a concerted plan to use the "narrow agreement on border security in a House committee" to "be the gateway to a broader agreement on immigration." At first glance, that would seem to refute the step-by-step approach House Republican leaders pledged to take on the issue of immigration.

Given the news and internal gamesmanship, conservatives would be wise to ask what the end game is for this strategy outlined by the two papers. Right now leadership is keeping that strategy relatively quiet, which means the rank-and-file members are in the dark. Before going home to meet with constituents for five weeks, it is important those members understand their leadership's plan on immigration.

How do rank-and-file members respond when asked: Why is the House pushing to go to conference with the Senate-passed amnesty, a bill House leaders acknowledge is dead on arrival?

Lawmakers, their constituents and the press should understand the legislative process for going to conference and why an amnesty bill is unlikely to go through the regular conference process.

Let's walk through the steps:

1. House passes a bill - any immigration-related bill - and sends it to the Senate.

2. Senate files cloture on a motion to proceed to the House-passed bill. The cloture petition would take two days (roughly half a legislative week in the Senate) to "ripen" once it's filed.

3. After cloture ripens, the Senate would vote on cloture on the motion to proceed. If 60+ Senators vote to invoke cloture, the Senate would then proceed to thirty hours of debate, unless time is yielded back. All told, the process of getting onto the bill could take at least a week.

4. Senate Majority Leader Harry Reid (D-NV) would then offer an amendment to strike all the text after the enacting clause. The language would be replaced with the Senate-passed amnesty bill.

5. A second cloture vote would be required on the new amendment. As described above, this process could take another week.

6. After the Senate voted to adopt the amendment, Sen. Reid would take steps to invoke cloture on the underlying House bill, as amended. Again, the process of running post-cloture time could take up to a week. If Sen. Reid were to allow an open amendment process, Senators could offer amendments and force votes on germane amendments to the underlying bill. More likely though, Sen. Reid will do what he has always done; fill the amendment tree and play gate keeper to block meaningful votes.

7. After post-cloture time expires, the Senate would vote on final passage.

8. Following passage, any attempt to go to conference would offer opponents of amnesty one last procedural option. TheSenate's new collapsed motion to go to conference, as a result of the January 2013 rules compromise, is debatable, but this vote does not have the same time constraints as the first three motions nor is it amendable. However, going to conference at this point would likely require unanimous consent, which conservatives could block.

9. To initiate the process of going to conference through regular order, the Senate would have to send the House bill, as amended by the Senate, back to the House.

10. To begin an official conference, the House would then have to send it back to the Senate after expressing disagreement with the Senate amendment. The Senate would subsequently use the new collapsed motion to go to conference, which would require a cloture vote.

The process described above is a simplified version of what must happen before a conference committee on amnesty can begin. Obviously, the calendar is the biggest obstacle to getting any immigration (i.e., amnesty) bill through regular order. So, what can the pro-amnesty crowd do to skip this tedious process?

There are three main options to pass a bill before they leave for the year-end holiday rush.

Option 1, Regular Order. While unlikely (for the reasons described above), there is a 20% chance they could take this route. With year-end spending bills, debt ceiling and a handful of other issues on the fall agenda, time is not on the side of amnesty proponents.

Option 2, A Pelosi's Discharge Petition: Democrats in the House are reportedly laying the groundwork for this highly unlikely approach. For this to succeed, Sen. Reid would have to send the Senate-passed amnesty over right before the House adjourns, which would allow Rep. Nancy Pelosi (D-CA) to begin the discharge petition process. There is a 5% chance this strategy is successful because 1) Democrats would need near unanimity, 2) 15 to 20 pro-amnesty Republicans would have to break ranks and support the Senate bill as passed, and 3) the bill itself would have to dodge a Blue Slip (the Constitution requires revenue bills start in the House, not the Senate) threat from Ways and Means Chairman Dave Camp (R-MI).

Option 3, Bait-and-Switch: The easiest path to amnesty would be to negotiate outside the confines of a formal conference. The House has all the pieces of a comprehensive bill in the committees of jurisdiction: Michael McCaul's (R-TX) border security bill; Trey Gowdy's (R-SC) border and interior enforcement bill; Darrel Issa's (R-CA) visa bill; Lamar Smith's (R-TX) E-Verify bill; Bob Goodlatte's (R-VA) Ag Jobs bill; and Eric Cantor's (R-VA) KIDS Act. Behind closed doors, a handful of pro-amnesty lawmakers from the House and Senate would cobble together a compromise between these bills and the Senate-passed amnesty. The new bill would be sent to the House and Senate floors for approval.

The question for rank-and-file members is this: could you sell this process, let alone the final policy product, to your already skeptical constituents?