The Failure of Immigration Reform Has Created a Living Hell. What's Next?

I am an immigrant advocate. I have worked in the nation's capitol for more than a decade in pursuit of comprehensive immigration reform legislation that would enfranchise millions of undocumented workers, reunite families separated for years by restrictions and backlogs, and admit needed workers in a way that would protect their rights, and do so in a way that would restore the rule of law to our nation's dysfunctional immigration system.

A year ago I predicted that an admittedly flawed comprehensive immigration reform bill would clear the U.S. Senate, get improved and approved in the House of Representatives, and be signed into law. I was wrong. In June of 2007 the Senate bill crashed and burned before the House ever had a chance to take it up.

The so-called “grand bargain” that had been birthed in a back room by the White House and leading Republicans and Democrats in the Senate turned out to be an orphan. The right wing went nuts and mobilized in opposition to what it called an “amnesty” bill. Many in the progressive community stayed on the sidelines or actually opposed what they saw as a Bush- and business- friendly bill that was not sufficiently pro-worker and pro-immigrant.

Those of us who supported the Senate bill held our noses in doing so. We knew the Senate bill was deeply flawed, but we believed the legalization component for the 12 million undocumented immigrants was decent and the family reunification provisions could be fixed before final passage, and we were hopeful that if the bill passed the Senate, the House would make it more worker- and immigrant-friendly on a number of fronts. Truth be told, we were motivated as much by fear as by hope, for we worried that in the aftermath of a failed immigration reform effort, the situation for immigrant workers and families on the ground would become a living hell.

We never got to test the first assertion, since the House never took up comprehensive reform once the Senate bill died. Unfortunately, the second prediction has come true. Immigrant workers and families are currently subjected to a virtual state of siege. High-profile raids, state and local anti-immigrant initiatives, and aggressive police enforcement of immigration laws in a growing number of communities have created a climate of terror that permeates the daily lives of some 20 million people in mixed-status families (most undocumented immigrants live in households with other family members who are citizens or permanent residents). They fear the knock at the door in the middle of the night, the red police light in the rearview mirror for a traffic violation, the helicopter over the work site, and the agents sitting in parked cars near elementary schools, for each could mean arrest, detention, deportation, family separation and dashed dreams.

What happened? Why did comprehensive immigration reform fail? Didn't a Republican-controlled Senate approve a version of comprehensive immigration reform in 2006 with 62 votes, 23 of them Republican? Why did a more right-leaning version of comprehensive immigration reform fail in 2007 in a Congress controlled by Democrats? And what will it take to get back to immigration reform with a path to citizenship for the 12 million undocumented immigrants currently working and living in the United States?

Here's my take on the specific and big-picture reasons we lost.

The specific reasons are twofold. First, the right-wing revolt against President George Bush and the bill intimidated all but a handful of Republicans into opposition. By way of background, the right-left legislative strategy we adopted relied on Bush, Republicans and business allies to deliver 25 to 30 Republican votes in the Senate to reach the filibuster-proof margin of 60 votes. This seemed doable when the grand bargain was first unveiled. But after the party's conservatives decided to join with the extremist anti-immigrant groups to rise up in protest, only 12 Republicans voted for a bill designed to attract their votes. Second, as a policy solution to the complex challenge of illegal immigration, the grand bargain was viewed not only as too liberal by the right, but as too conservative for the left and too unworkable for the policy experts. This combination meant that the bill, which needed to catch an updraft of support from a public wanting a solution and constituencies wanting a bill, instead met a stiff headwind of resistance.

The bigger-picture reasons for losing, though, shed light on how we might reinvent our strategy and reorganize for a comeback. We were defeated because:

1. We ended up on the wrong side of the globalization/economic anxiety debate and the legitimate concerns of American workers and taxpayers.

2. We were not prepared to effectively counter the culturally charged and increasingly racialized debate.

3. Our field and media efforts were insufficient to counter the intensity and framing of our opponents.

4. Most importantly, we did not have enough electoral might -- meaning identified voters for whom immigration reform is a defining issue -- to strike fear in the hearts of policy makers who were frightened by a more vigorous opposition.

In light of this, what will it take to win? How about this: a voter mobilization effort that punishes anti-immigrant politicians, a policy approach that excites progressive constituencies, a communications effort that redefines the debate and a grassroots effort that neutralizes the loud but not large anti-immigrant forces.

What might this look like? First and foremost, the movement needs an unprecedented citizenship promotion and voter mobilization drive. The good news is that national and local organizations such as the Service Employees International Union (SEIU), the Association of Community Organizations for Reform Now (ACORN), the National Association of Latino Elected & Appointed Officials (NALEO), the National Council of La Raza (NCLR), Democracia USA, and Center for Community Change, along with coalitions in Los Angeles, Illinois, New York and Massachusetts, as well as others, are coming together to make this happen. If they succeed, come November you may hear pundits talking about “el voto castigo” in which Latino immigrants as well as other immigrant voters came out in record numbers to punish anti-immigrant candidates, most of whom have an “R” next to their name.

Second, we need to rethink our policy approach. Of course, some things must not change. Legalizing the currently undocumented and reducing family backlogs has to be part of any immigration reform proposal aimed at modernizing our immigration system intelligently. But the old comprehensive immigration reform strategy embraced a significant increase in temporary worker visas for the “future flow” of needed workers. This element of comprehensive reform divided progressives. Especially as we enter and weather an economic downturn, a new strategy needs to consider a more limited set of “future flow” worker visas that extend permanent status rather than temporary status to new workers, with perhaps limited but reformed temporary worker programs (with more robust labor protections incorporated) targeted at agriculture and other seasonal industries.

In addition, our understanding of what constitutes the workplace enforcement component of immigration reform needs to expand beyond the drive to create a workable worker verification system. We need to include enhanced labor protections and aggressive enforcement of labor standards for all low-wage workers. For example, we need to consider expanding the Occupational Safety and Health Act, fighting wage theft by strengthening enforcement of minimum wage and overtime laws, stopping the misclassification of workers as independent contractors, improving access to job offers by all low-income workers by requiring employers to make information available to all potential applicants, protecting against discrimination in the workplace by strengthening civil rights laws and enforcement, enabling workers to join a union if they choose to, protecting workers who are displaced when their jobs are shipped overseas by improving Trade Adjustment Assistance, helping workers and their communities plan for and adjust to plant closings and mass layoffs, and modernizing the nation's unemployment insurance program.

It seems to me that the combination of a limited number of permanent visas for the future flow and strong worker protections and supports for all workers is both good policy and good politics. It's good policy because it correctly identifies the common problem of worker exploitation through “divide and conquer” tactics and devises solutions that protect foreign-born and native low-wage workers alike against unscrupulous employers. It's good politics because it repositions immigration reform as a serious strategy to create higher pay and labor standards for all workers currently in low-wage jobs -- jobs that need not be low-wage forever.

Finally, we are going to need a more aggressive and assertive communications and grassroots strategy to define and drive the debate going forward. Remarkably, the right-wing xenophobes have too often presented themselves as mainstream defenders of the American way of life. In fact, they are nothing of the sort. They use high-sounding arguments to hide their low-road disdain for immigrants from Latin America. Their ugly policy goal is to drive immigrant families -- most of them Latino, some legal, some not -- out of the country. They call it “attrition through enforcement” and claim that by enforcing the laws on the books, immigrants will “humanely” self-deport. But there is nothing humane about a deliberate strategy of repression aimed at driving 12 million undocumented immigrants and their millions of U.S. citizen children and loved ones out of the country. Let's call it what it is: nothing less than a nonviolent form of ethnic cleansing. It is time to raise the moral stakes of the debate and make the choice clear to Americans: mass deportation or earned citizenship?

In addition to making it clear that opponents of broad reform are extremists that have hijacked the debate, we have to make sure we win the argument that our approach to reform -- workers with rights, families that are enfranchised with all the rights and responsibilities of citizenship, and visa limits as well as labor laws sensibly enforced -- is better for workers, taxpayers and the rule of law. We have to run to, and not from, these issues. After all, we are right. Making sure immigrants are on track to become citizens with all the rights and responsibilities of full membership while cracking down on unscrupulous employers who encourage a race to the bottom for all workers is clearly the most practical way to replace the chaos, illegality and exploitation of a broken system with a legal regime that strengthens the right of workers, enhances the tax base of communities and restores the rule of law to both our borders and our workplaces.

But it's on us as advocates and members of key constituencies -- locally and nationally -- to make and win the moral, practical and political arguments. If we do, over time I believe that most Americans will demand the kind of political leadership and pragmatic solutions needed to move immigration reform across the finish line.

Are these the right lessons to learn and strategies to pursue? Time will tell. And in the meantime, if you have a better way to go, I'm all ears. But the scope of the challenge is clearer to me now than it was a year ago. Back then I naively thought we were having a policy debate over how to fix a broken immigration system. Now I recognize that immigration is a both a new front in the culture war and a key element of the political war between progressive and conservative forces.

In fact, I suspect historians will look back and judge the treatment of immigrant workers and families to be one of the defining issues of our time. Will our generation respond with smart policies and humane treatment, or with intolerance and repression? Will we as a society rise above the hostility that roils this racially charged issue, or will we succumb to coded language, wedge politics and the deepening of racial hierarchies? Will our national leaders fulfill their constitutional responsibilities to properly regulate immigration, or will paralysis and polarization widen the vacuum currently being filled by anti-immigrant state and local measures? Will future generations look back at ours as the generation that joined the great American tradition of hard-won victories over the politics of exclusion and marginalization, or as the generation that yielded to the forces of ultranationalism determined to drive millions of vulnerable immigrant workers and families from our midst?

It's up to the progressive community to recognize the stakes. If we do so, I am optimistic that we will build the power and forge the unity to bend the arc of history toward justice.


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